TWENTIETH CORRECTION Consti, Juris.I.L.ipc, Contract, Hindu Admin, Muslim Law

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KRISHNA MURARI YADAV

(LL.B. BHU, LL.M.- University of Delhi, UGC- NET-JRF, Ph.D. –BHU(Pursuing)
Assistant professor selected by (1) University of Delhi, (2) U.P. Higher Education Service
Commission (22nd Rank) and (3) UPSC as 1st rank holder. Special thanks to Rajendran
Veerappan, Venkateshwaran, Gayathri, Mary, Arathi, Trapti Aggarwal and other persons
who liked, commented and shared my post.
CONTENTS
SERIAL SUBJECTS PAGE NO.
NO.
1 CONSTITUTION OF INDIA 03-122
2 JURISPRUDENCE 123 -135
3 INTERNATIONAL LAW 136-149
4 INDIAN PENAL CODE 150-184
5 INDIAN CONTRACT ACT 185-206
6 HINDU MARRIAGE ACT 207-220
Krishna Murari Yadav, Assistant Professor, LC-I, Faculty of Law, University of Delhi, Delh.
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7 ADMINISTRATIVE LAW 221-231

8 Muslim Law 232-234
9 Law as a means to protect the interest of women- 235-242
10 ‗TALAQ-E-BIDDAT‘ (TRIPLE TALAQ) IN INDIA 243-251.
11 Political Journey of Mrs. Indira Gandhi 252-259
12 Journey of BJP 260-263
13 POLITICAL JOURNEY OF MR. MULAYAM SINGH 264-268
YADAV
14 Parliamentary Privaleges 269-280
15 Arguments in favour of Dr. Subhash Kashinath Mahajan vs. 281-287
State of Maharashtra and Anr.
16 Arguments against decision of Dr. Subhash Kashinath 288-292
Mahajan vs. State of Maharashtra and Anr.
17 ―Law Related To Rape Of Women In India: An Inside‖ 293-307
Special Features Of The Criminal Law (Amendment) 308-317
18 Ordinance, 2018
19 The Fugitive Economic Offenders Ordinance, 2018 (No.1 Of 318-320
2018)
20 TEHSEEN POONAWALLA AND ORS VS UNION OF 321
INDIA AND ANRS. (JUSTICE LOYA‘S DEATH CASE)
21 CONSTITUTION OF BENCHES AND ALLOCATION OF 322-323
CASES
MASTER OF ROSTER and CHAOS FOR REMOVAL OF 324-327
22 HON‘BLE CJI DIPAK MISHRA
23 Stages of Removal of Judges 328
24 Chaos For Removal Of Justice V.Ramaswami & Support Of 329-333
Corruption By Congress Party For Political Mileage
25 VIVEKANAND TIWARI AND ANR. VS. UNION OF INDIA 334-337
AND 5 Ors. DOJ, 07APRIL, 2017, ALL. H.C.
26 Murder of Democracy: Uttarakhand And Arunachal Pradesh, 338-339
2016 And Elevation Of Hon‘ble Chief Justice K.M.Joseph
27 Leading Cases of 2017-2018 340-343
28 EVICTION OF EX-CHIEF MINISTERS OF UTTAR 344-349
PRADESH FROM GOVERNMENT BUNGALOWS
29 Black day for SCs and STs 351
30 Supreme Court and Hung Assembly of Karnataka 352
31 Urgent need of law to regulate the situations of hung 353-361
legislative assemblies
32 Hat-trick in Law 362
33 Institution of Eminence (IoE)
34 Suggestions regarding HECI Act, 2018
35 How to write Articles for publication in ―Journal‖
36 Role of abrogation of triple talaq in ameliorating the 375-384
conditions of muslim women
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37 Search for transparent and accountable procedure for 385-401

appointment of judges in higher judiciary
38 Brief Legal and Political History of Articles 370 and 35A 402 -419
39 Brief political and legal history of NRC in India 420-430
CONSTITUTIONAL LAW
15TH AUGUST, is great day in Indian modern history, when power has been transferred by
British India to Dominion of India according to Indian Independence Act, 1947. It is well known
that several people sacrificed their life for freedom of India. I salute them from bottom of my
heart. It is not possible to write about their contributions in few words. Today I am trying to
write about unification of India after declaration of Mountbatten plan.
MOUNTBATTEN PLAN O3 JUNE 1947- Louis Mountbatten announced on All India Radio (
In all India Radio house ) in presence of Mr. Jawahar Lal Nehru, Mr. Md Ali Jinna and Mr.
Baldev Singh in evening on 03 June 1947 which is popularly known as Mountbatten Plan .
According to this plan, it was declared that British India would be divided into two parts,
namely, (1)Dominion of India &( 2) Dominion of Pakistan and Indian States ( it is also
known Princely States / Native States) have two options namely either (1) to choose India or
Pakistan , or (2) to be an independent country . In this way, in case of acceptance of second
option, India were to be divided into 566 parts.
LAPSE OF PARAMOUNTCY – According to section 7 of the Indian Independence Act, 1947,
after 15th August all treaty, agreement, accord with any Indian States shall be lapse, and it shall
be treated that there were no agreement with any princely states. Indian States/ Native States
have two options namely either (1) to choose India or Pakistan, or (2) to be an independent
country. In this way, all Indian States became sovereign. Government of British India withdrew
all its powers.
INSTRUMENT OF ACCESSION - Instrument of Accession was prepared by V. P. Menon.
Instrument of Accession was document which was containing conditions to join India. If any
Indian State signed it, it means that State had joined India.
Britishers after winning Plassey (1757) & Buxar (1764) wars started direct ruling to huge area
of India and over some areas indirect ruling. They compelled several kings to accept sovereignty
of British crown. British Company made several treaties and accepted several king as a king
subject to that king would always help them. In this way India was divided into two parts
namely, (1) British India, Direct Control & (2) Indian States under the control of kings,
Nawabs, and Nizam, Indirect control . Total Numbers such Indian States were 565.
20 June 1947, Sardar Ballabh Bhai Patel who was first Home Minister and Deputy Minister of
India approached to V.P. Menon and convince him to act for India. He said that you have to
work as Secretary of my department. One independent Ministry was established to deal with
issues of Indian states under control of Sardar Ballabh Bhai Patel. On 5th July Patel Ji addressed
to all princely states on All India Radio.
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11TH JUNE, 1947, TRAVANCORE was first province which declared that after 15th August, it
would be sovereign country. Travancore province was constituted by present Kerala and South
Tamil Nadu. King& Deewan of Travancore were Balram Verma and C.P.Ramaswami Ayyar
respectably. Author Mr. Krishna Murari Yadav, Assistant Professor, Puducherry.
12TH JUNE,1947, HYDERABAD announced that it wd be independent Country after 15th
August. Several Provinces decided to be independent. In case its independent, there was no
possibility of connection between North and South India. It was the largest Indian States.
01st April , 1947, Mr. V.P. Menon who was at that time advisor of Lord Mountbatten suggested
to Lord Mountbatten to play role of mediator and convince Princely States (kings , Nijam &
Nawab) to join India. Council of Ministers approved the name Lord Mountbatten as a mediator.
He was the member of British Ruler Family so there was no any problems to interact him with
Indian princes.
18TH JULY, INDIAN INDEPENDENCE ACT, 1947 was passed by British Parliament .18th
July 1947, the Act was signed by British King. According to section 1 of this Act, as from the
15th August, 1947, two independent Dominions shall be set up in India, to be known respectively
as India and Pakistan.
According to section 2 (3) it was provided that other dominion which are not coming either
Indian Dominion or Pakistan Dominion shall not be included in either dominion without the
consent of that dominion. Section 2(4), it shall not prevent accession of Indian States. According
to section 5, For each of the new Dominions, there shall be a Governor General who shall be
appointed by His Majesty and shall represent His Majesty for the purposes-of the government of
the Dominion Provided that, unless and until provision to the contrary is made by a law of the
Legislature of either of the new Dominions, the same person may be Governor-General of both
the new Dominions. Due to section 5, Lord Mountbatten was Governor General of India after
independence from 15 August 1947- 21 June 1948 (Viceroy of India- 12 Feb.-15 August).
25TH JULY,1947, Lord Mountain addressed to kings of all princely states in Legislative
Council( Now Parliament) in which he did not directly say to join India but he enumerated
benefits of joining of India. He said that you can not escape from welfare of your states. By his
efforts several Indian States joined India.
11TH AUGUST,1947 JODHPUR (Hanumant Singh,king), Bickaner and Jaisalmer was also
creating a lot of problrms especialy Jodhpur . King of Jodhpur was called Delhi by Lord
Mountbatten. Hanumant Singh threatened by loaded gun to V.P.Menon. At the same time, due to
intervention of Mr. Mountbatten he dropped his pistol and signed on Instrument of Accession
on 11th August 1947 .
12TH AUGUST 1947 Travancore signed on Instrument of Accession due to revolt of public.
15 AUGUST- Earlier date of transfer was June 1948. After 04 June 1947. This date is known for
power of transfer from British India to Republic of India. On this date all Indian States joined
India, except (1) Jammu and Kashmir. (2) Junagarh (3) Hyderabad (4) Bhopal
(1) JAMMU AND KASHMIR. Mr. Hari Singh king of Jammu & Kashmir signed Instrument of
Accession 26 Oct. 1947, in Amar Palace, Jammu.
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(2) JUNAGARH- King of Junagarh, Mohabbat Mahawat Khan ran away to Pakistan on
15August, 1947. 07 November1947, Shahanwaj Bhutto who was Diwan ofJunagarh ( grand
father of Benjir Bhutto) signed on Instrument of Accession. In public opinion , 119000 votes in
favour of India & 91 votes in favour of Pakistan.
(3) HYDERABAD- Operation Cater pillar was started by Indian Army on 13 Sep. 1948.After
5days war , Mir Usman Ali Bahadur, Nizam of Hyderabad surrendered and signed Instrument of
Accession on 17 Sep. 1948.
(4) BHOPAL- Nawab of Hamidulllah Khan signed Instrument of Accession on 30 April, 1949.
(5) GOA, DAMAN, AND DIU -After failure of diplomacy with the Portuguese, Nehru ordered
the Indian Armed Forces to take Goa by force. In a military operation conducted on 18 and 19
December 1961, Indian troops captured Goa with little resistance. The governor-general of
Portuguese India signed an instrument of surrender
(6) Puducherry - on 21st 1954, an agreement on the de facto transfer of the French territories to
India was signed in New Delhi between the India and France .On August 16, 1962 India and
France exchanged the instruments of ratification under which France ceded to India full
sovereignty over the territories ( de jure) it held. Pondicherry and the other enclaves of Karaikal,
Mahe and Yanam came to be administered as the Union Territory of Puducherry from July 1,
1963.
(7) SIKKIM- Sikkim became a princely state of British India in 1890. After 1947, Sikkim
continued its protectorate status with the republic of India. In 1975, the Indian military deposed
the Sikkimese monarchy. A referendum in 1975 led to Sikkim joining India as its 22nd state by
36th Constitutional Amendment.
In this way unification of India completed.
Mountbatten Plan,
03 British India ( Indian States/ Princely States Total No.
June, 1947 Dominion of 565 (Two options either to join India or
British) Pakistan , or to be an Independent
country
Indian Independence Sections 1& 2(1) Section 2(3) (4) & section 7( Lapse of
Act, 1947,( 18 July, (2) Paramountcy.
1947).
AFTER INDEPENDENCE, ACCESSION OF TERRITORY

Serial no. Indian States Revolt Sign on Instrument of
Accession
1 Jammu & Kashmir 26 Oct, 1947
2 Junagarh 15th August, 1947 07 Nov.1947
3 Hyderabad 13 Sep. 1948 17Sep, 1948
4 Bhopal 30 April, 1949
5 Goa Daman & Deu Portugal 1961
6 Puducherry France August 16, 1962
7 Sikkim King 1975
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PREAMBLE OF CONSTITUTION OF INDIA

One time amendment in 1976
WE, THE PEOPLE OF INDIA, having solemnly
resolved to constitute India into a SOVEREIGN,
SOCIALIST, SECULAR, DEMOCRATIC
REPUBLIC and to secure to all its citizens: JUSTICE,
social, economic and political; LIBERTY of thought,
expression, belief, faith and worship; EQUALITY of
status and of opportunity; and to promote among them all
FRATERNITY assuring the dignity of the individual
and the unity and integrity of the Nation; IN OUR
CONSTITUENT ASSEMBLY this 26th day of
November, 1949, do HEREBY ADOPT, ENACT AND
GIVE TO OURSELVES THIS CONSTITUTION.
SSSDR India (1)Sovereign,(2) Socialist, (3) Secular (4) Democratic
and (5) Republic
JLEF To secure to all its (1)Justice-3 types, (2) Liberty-5 types,(3) Equality-2
citizens types (4) Fraternity
SSI 42nd Constitutional Ins. (1) Socialist (2) Secular (3) Integrity
Amendment, 1976
1960 In Re Berubari Case (1) Preamble is not the part of the Constitution. (2) It is a
Justice key to open the mind of the maker of the Constitution.
Gajendragadkar
1967 I. C. Golaknath & Ors K. Subba Rao, (Cj), ―It contains in a nutshell, its ideals
vs. State Of Punjab & and its aspirations. The preamble is not a platitude but
Anrs. the, mode of its realisation is worked out in detail in the
K. Subba Rao, CJI Constitution.‖
24April Kesavananda Bharati (1) Preamble is the part of the Constitution. (2) Any part
1973 ... vs State Of Kerala of the preamble may be amended subject to basic
And Anr structure of the constitution.
S.M. Sikri, CJI.
1979 Excel Wear vs. Union Supreme Court held that the addition of word ‗socialist‘
of India. (Meaning of might enable the court to lean more in favour of
Socialist) nationalization and State‘s ownership of industry
17 Dec. D.S. Nakara vs. Union S.C. ―Socialism is a blend of Marxism and Gandhism
1982 of India (Meaning of leaning heavily towards Gandhian socialism.‖
Socialist)
1993 S.R.Bommai vs. Secularism is the basic structure of the Constitution.
Union of India
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DEFINITION OF
STATE
Article 12 Definition In this part (Part III, Articles 12-35), unless the context
of State otherwise requires, State includes (1) Government and
Parliament of India, (2) Government and Legislature of
each State, (3) all local or other authorities (a) within the
territory of India or (b) under the control of Government
of India.
Meaning of other
authorities
Principle of ‗Ejusdem Example- Cow, goat, and other animal. Buffalow would
Generis‘ come in the category of other animal.
1954 University of Madras Principle of ‗Ejusdem generis‘ was applied. So it was
Mad.H.C. vs. Shanta Bai held that the University was not State under Article 12.
1962 S.C. Ujjammbai Vs. State S.C. held that principle of Ejusdem generis would not be
of U.P. applied. The Court held that there is no common genus
No Ejusdem generis running through these bodies (Legislative of Union and
and Court State & Government of Union and States and local
interpreted ‗other authorities) nor can these bodies so placed in one single
authorities‘ in very category on any rational basis.
wider sense.
1967 Electricity Board, S.C. held that those bodies which have been established
Rajasthan vs. Mohan either by Constitution or by any other statute would
Lal come under the category of other authorities.
1979 R. D. Shetty vs. Agency and Instrumentality of the Government are
National Airport State.
Authority of India
Justice P.N.Bhagwati
1980 Ajay Hasia vs. Khalid In both the cases (R.D.Shetty & Ajay Hasia Cases)
Mujib Hon‘ble Justice P.N.Bhagwati said that ‗any agency‘ or
Justice P.N.Bhagwati ‗instrumentality‘ of the Government would come under
the category of other authorities. He said that to decide
whether any body is agncy of the Gov. or not, we have to
follow following guidelines-
Entire Share (1)If the entire share capital of the body is held by the
Gov.
Entire Expenditure (2)Where financial assistance given by the Government
is so large as to meet almost entire expenditure of the
body.
Monopoly Status (3) If the body enjoys monopoly status which is
conferred or protected by State.
Deep control of State (4) Existence of deep & pervasive State‘s control
Related to Gov. (5) If the functions performed by the body or of public
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importance and closely related to Govt. functions.

1988 A.R. Antulay vs. Court is State
R.S.Nayak
Chandra Mohan NCERT is not an State.
vs.NCERT
Article 13 (1) Principle of Judicial Review
(2)Doctrine of Eclipse
(3)Doctrine of Severability
(4)Doctrine of Waiver
Article Doctrine of (1) A. K. Gopalan vs. State of Madras AIR1950S.C.174

13 Severability. (2)State of Bomay vs. F.N.Balsara AIR1951S.C.318
Arts. 13(1) & (3) R.M.D.C. vs. Union of India AIR1957 S.C.
(2)…to the extent (4) Kihota Hollohan vs. Zachillhu1992 Supp(2)SCC651
of the
inconsistency or
repugnancy
1950 A. K. Gopalan vs. Preventing Detention Act, 1950- Section 14 was declared
S.C. State of Madras ultra vires. S.C., ―The impugned Act minus this section can
remain unaffected.‖
1951 State of Bomay Bombay Prohibition Act, 1949- S.C., ―The provisions which
S.C. vs. F.N.Balsara have been declared as void do not affect the entire statute ,
therefore , there is no necessity for declaring the statute as
invalid.‖
1957 R.M.D.C. vs. Prize Competitions Act, 1955. Disputed law was severable.
S.C. Union of India Court declared unconstitutional only those parts which related
to competition not involving skill. According to Article
19(1)(g) Parliament could restrict prize competitions only of
gambling nature but not those involving skill.
1992 Kihota Hollohan S.C. by a majority of 3:2has upheld the validity of validity of
S.C. vs. Zachillhu Schedule X minus Para 7.
Doctrine of (1) Bhikaji Narain Dhakras vs. State of M.P.AIR1955SC781
Eclipse. Arts. (2)Deep Chand vs. State of U.P. AIR1959SC648
13(1) & (2) (3)State of Gujarat vs. Ambica Mills AIR1974 SC1300
(4)Dulare Lodh vs. IIIrd Additional District Judge, Kanpur
AIR1984SC1260
Pre-Constitutional Law
1955 Bhikaji Narain Berar Motors Vehicles (Amendment ) Act, 1947- Article 19(1)
Article Dhakras vs. State (g)- First Amendment Act, 1951
13(1) of M.P
Post-Constitutional Law
1959 Deep Chand vs. Doctrine of Eclipse is not applied on Post-Constitutional Law
Article State of U.P.
13(2)
1974 State of Gujarat Dispute was regarding in respect of Article 19. The S.C. held
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Article vs. Ambica Mills that Art.13 (2) will affect only in respect of citizens and
13(2) AIR1974 regarding other, it would be applicable because Article 19 is
available only for citizens. Doctrine of Eclipse is not applied
against citizens.
1984 Dulare Lodh vs. Doctrine of Eclipse is applicable in case of all Post-
Article IIIrd Additional Constitutional Law even in case of citizens. Ejectment of
13(2) District Judge, tenant and Execution of Decree.
Kanpur
Articles Doctrine of (1) Marbury vs. Madison , 1803
13,32, Judicial Review (2) State of Madras vs. V.G.Row, AIR 1952 SC196
& 226 Arts. 13(1) & (2) (3) Kesavananda Bharati vs. State of Kerala, AIR1976 SC
(4)L. Chandra Kumar vs. Union of India AIR1997 SC1125
1803 Marbury vs. U.S.A. Constitution does not expressly mention about Judicial
Madison Review. Justice Marshall, Chief Justice of U.S. Supreme
Court , in the case of Marbury vs. Medison propounded the
Principle of Judicial Review.
1952 State of Madras Justice Patanjali Shatri , Chief Justice of Supreme Court ,
vs. V.G.Row, observed, ― Our Constitution contains express provisions for
Judicial Review of legislation as to its conformity with the
Constitution unlike in America where the Supreme Court has
assumed extensive powers..‖
1976 Kesavananda Judicial Review is basic structure of the Constitution.
Bharati vs. State
of Kerala,
1980 Minerva Mills Justice Chandrachud, C.J., ―Rights without remedies are as
Ltd. Vs. UOI writ in water. A controlled Constitution will then become
uncontrolled.‖
1997 L. Chandra Kumar Justice Ahmadi , C.J., ―….Power of Judicial Review over
vs. Union of India legislative actions vested in the High Court under Article 226
and in this Court under Article 32 of the Constitution is an
integral and essential features of the Constitution …..‖
Doctrine of
Waver. Arts.
13(1) & (2)
1959 Bashesher Nath Doctrine of Waver is not applicable in India unlike USA.
vs. Income Tax
Commissioner
Article 14:-Equality before law

―The State shall not deny to any person equality before the law or the equal protection of the
laws within the territory of India‖.
Dr. Jennings , ―Equality before law means that among equals the law should be equal and
should be equally administered, that like should be treated alike..‖
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According to Professor Dicey -Rule of law means

First- Absence of arbitrary power or supremacy of Law
Second- Equality before law
Third- The Constitution is the result of the ordinary law of land
Equal protection of the laws-USA, -Like should be treated alike and not that unlike should be
treated alike.
RULE OF LAW
Originator of the rule of law was Sir Edward Coke. Dicey developed the theory of Coke in his
classic work ‗The Law and the Constitution‘ published in the year 1885. According to Dicey
there are three meaning of the said doctrine.
(1) Absence of arbitrary power (2) Equality before law (3) The Constitution is the result of the
ordinary law of the land
Dicey, ―Every official from the Prime Minister down to constable or a Collector of taxes is under
the same responsibility for every act done without legal justification as any other citizen.‖
Dr.Jenning, ― Equality before the law means that among the equals the law should be equal and
should be equally administered , and that like should be treated alike..‖
V.N.Shukla , ―Like should be treated alike and not that unlike should be treated alike.‖
Preamble – Equality of Status and Opportunity
Article 14- The State shall not deny to any person equality before the law and equal protection
of laws within the territory of India.
The guarantee of equality before the law is an aspect of what Dicey calls the ‗Rule of Law‘ in
England.
West Bengal v. Anwar Ali Sarkar- This Article combines the English doctrine of the rule of
law and the equal protection clause of the 14th Amendment to the American Constitution.
Indira Nehru Gandhi vs. Raj Narayan, 1975 – Rule of law embodied in Article 14 is basic
structure of the Constitution.
The two great values which emanate from the concept of Rule of law in modern times are – (1)
No arbitrary Government (2) and upholding individual liberty.
The rule of law postulates the pervasiveness of the spirit of law throughout the whole range of
government in the sense of excluding arbitrary official action in any sphere.'Rule of law' is an
expression to giver reality to something which is not readily expressible. That is why Sir Ivor
Jennings said that it is an unruly horse. Rule of law is based upon the liberty of the individual
and has as its object, the harmonizing of the opposing notions of individual liberty and public
order. The notion of justice maintains the balance between the two; and justice has a variable
content.
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E. P. Royappa vs State Of Tamil Nadu & Anr on 23 November, 1973 Bhagwati,

P.N., quality 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; one
belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute
monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political
logic and constitutional law and is therefore violative of Article 14.
Additional District Magistrate, vs. S. S. Shukla Etc. Etc on 28 April, 1976 Justice
Khanna, Rule of law is true antithesis of arbitrariness. The rule of law has come to be
regarded as the mark of a free society. It is, however, identified with the liberty of 'he individual.
It seeks to maintain a balance between the opposing notions of individual liberty and Public
order.
A significant derivative from ‗Rule of Law‘ is Judicial Review. Judicial Review is an essential
part of rule of law . It involves not only of the the constitutionality of the the rule of law but also
of the validity of the administrative actions.
Minerva Mills Ltd. & Ors vs. Union Of India & Ors on 31 July, 1980
The power of the judicial review is an integral part of our constitutional system and without it,
there will be no Government of Laws and the rule of law would become a teasing illusion and
a promise of unreality. If there is one feature of our Constitution which, more than any other, is
basic and fundamental to the maintenance of democracy and the rule of law, it is the
power of judicial review and it is unquestionably a part of the basic structure of the
Constitution.
Exceptions- (1) Article 31C Sanjeev Coke Mfg. Co. vs. Bharat Cooking Coal Ltd. S.C. , ―
Where Article 31-C comes in , Article 14 goes out.(2) Art. 359 (1) (3) 361 (4) Art.51 r/w 253.
Test of reasonable classification- Classification to be reasonable must fulfil two conditions-

First-Intelligible differentia .Second- Rational Relation.
Leading Cases-
(1) Chiranji Lal vs. Union of India, 1961-
Single individual may constitute a class.
(2) Kesawananda Bharati vs. State of Kerala 1973-
Rule of Law is basic structure of the Constitution
3) E.P. Royappa vs. State of Tamil Nadu , 1974,
New dimension of equality and arbitrariness is anti-thesis of equality.
(4) Maneka Gandhi vs. Union of India 1978-
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Equality is dynamic concept with many aspects and dimensions and it cannot be imprisoned
within traditional and doctrinaire limits.
(5) Air India vs. Nargesh Meerza, 1981,
The Court held that the termination of service on pregnancy was manifestly unreasonable and
arbitrary and was therefore violative of Article 14.
(6) Mithu vs. State of Punjab, 1983,
Section 303 of IPC is unconstitutional because it makes mandatory death penalty.
(7) John Vollamattom vs. Union of India, 2003-
Section 118 of Indian Succession Act, 1925 violates Article 14.
(8) National Legal Services Authority vs. Union of India, 2014-
Hijras and Transgender are the persons under Article 14, so entitled to legal protection.
(9) Navjyiti Co-op. Group Housing Society v. Union of India, 1993,
Doctrine of Substantive Legitimate Expectation has been accepted.
(10) Central Inland Water Transport Corporations vs. Brojo Nath, 1986-
Rule of Natural Justice implicit in Article 14.
(11) Lucknow Development Authority vs. M.K.Gupta,1994,
In case of arbitrary action, State is liable to pay compensation to a citizen.
Exceptions:-
(1) Article 361.
(2) Sanjeev Coke Mfg. Co. Bharat Cooking Coal Ltd., 1983-Where Article 31-C comes in
Article 14 goes out.
(3) Article 359- President may suspend all FRs except Article 20&21 during proclamation of
emergency.
(4) Foreign Sovereign and Ambassador (Art.51and 253).We are bound to foster international
law.
RESERVATIONS
Kind of Reservation:- (Mandal case, M.P.Jain.)
There are two kind of reservation
(1) Vertical Reservation
(2) Horizontal Reservation.
In Mandal case the Court has divided the total reservation of 50% into Vertical and horizontal
reservation. Reservations in favour of OBC,SC, and ST under Article 16(4) may be called
Vertical Reservation whereas reservation made in favour physically challenged under Article
16(4) can be called horizontal reservation. Horizontal reservation cut across the vertical
reservations what is called interlocking reservation.
LEADING JUDGEMENT, AMENDMENT AND COMMISSION ON RESERVATION:-
(1) State of Madras vs. Champacam Dorairajan , 1951
(2) Balaji vs. State of Mysore, 1963
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(3) Devasan vs. Union of India, 1964.

(4) Indra Sawhney vs. Union of India, 1992
(5) Ashok Kumar Thakur vs. State of Bihar, 1995.
(6) Dr. Preeti Sagar Srivastava vs. State of Madhya Pradesh, 1999.
(7)M. Nagraj vs. Union of India, 2007.
(8) Ashok Kumar Thakur vs. Union of India, 2008
(9)Society for Un-Aided Private School of Rajasthan vs. 2012
(10) Uttar Pradesh Power Corporation vs. Rajesh Kumar, 2012.
(11) Pramati Educational and Cultural Trust vs. Union of India.2014
(12) Deepa vs. Union of India, 2017.
CONSTITUTIONAL AMENDMENT:-
(1) 1st Amendment- Article 15(4) and Ninth Schedule.
(2) 77thAmendment, Article 16(4A),
(3)81st Amendment, Article 16(4B).
(4) 85th Constitutional Amendment Article.
16(4A)-Consequential seniority.
(5)73rd ,1992, reservation in rural local body, Article 243-D.
(6)74th,1992,Reservation in urban local body, Article 243-T
(7) 93rd Amendment,2005,Article 15(4)
(8)82nd Amendment, 2000, Article 335, Provided that, Relaxation in Marks( in
consequences of S. Vinod Kumar vs. Union of India,1996).
COMMITTEE:-
(1)KakaKalekarCommittee, Article 340. (1955).

(2)B.P.Mandal Commission, Article 340 (1980).
(3) Justice Ram Nandan Committee, 1993.
Carry Forward Rule, Catch Up Rule, Kind of Reservations- Vertical reservation (Article
16(4) (SC,ST,OBC). Horizontal reservation (Article 16(1) (Differently Abled and women).
Meaning of Reservations:-
Reservation is a methods by which special opportunity is given to deprived or suppressed class
so that they can contribute in development of nation. By this methods any nation wants to utilise
resources and talents of all human beings .By using this methods, USA is most powerful country.
In USA , black people were given special opportunity and USA have to face CIVIL WAR(12
14
April 1861-09May1865) because white people were not ready to accept participation of black
people.
Philosophy of Reservations is based on the principal that land and wealth of nation is not only of
few people. Nation and government are for all people who are residing in certain territory. In our
country, in modern era , first of all Baba Saheb Bhim Rao Ambedkar realized and demanded
reservation for suppressed class who were being considered as a animal and they were not
allowed for sharing well, road ,shop , restaurant etc. So by Poona pact, 24 Sep.1932,
(Agreement between Gandhiji and Baba Saheb) reservation was given to most suppressed class
people of our country. Adhering to Article 340 of the Constitution of India, the First Backward
Classes Commission was set up by a presidential order on 29 January 1953 under the
chairmanship of Kaka Kalelkar. It is also known as the First Backward Classes Commission,
1955 or the Kaka Kalelkar Commission.
In 1979, during the regime of Hon'ble P.M. Mr. Morarji Desai , second OBC Commission was
constituted whose Chairperson was Bindeshwari Prasad Mandal (B. P. Mandal - Ex. Chief
Minister and Ex. M.P.) and another 5 Members. This Commission made base 1931Census to find
out how many Caste are OBC category. Because in this census Caste was mentioned. In latter
census, there was no Caste counting. Article 15(4) &16(4) talks about socially and educationally
backwards class. So by making Caste, they find out that more than 50%people are backwards
class. So this Commission made recommendations 27%reservations for OBC.
Question arises, why only 27% reservation, why not 50%reservation? To understand this
question, we have to go in back and observe two cases and First Amendment.
(1) State of Madras vsChampacamDirairajan, DOJ-09April, 1951:- This is the first case in
which reservation policy of Government was struck down. So then Law Minister, Dr. BSBR
Ambedkar moved for First Constitutional Amendment (1951) whereby Articles 15(4) and Ninth
Schedule were inserted. Thereby State became authorise to make reservations for advancement
of ST, SC and OBC.
By First Amendment, two questions arised-
(1) Who are socially and educationally backward classes?
(2)What would be limit of reservation?
To find out two answer, we have to observe Balaji case.

(2) Balaji vs. State of Mysore, 1963. In this case Govt.provided68% reservations. By
Notification, OBC was divided in two parts (I) Backward Classes (ii) More Backwards Classes.
Supreme Court held-
(I) Reservation must not exceed 50% (Indira Sahni Case1992 -Rule - Not exceed50%but in
exceptional cases it may exceed).
(ii) Classification of OBC is not justfied. (Indira Sahni case 1992- such Classification is valid.)
So, Mandal Commission requested only for 27 %because 22.5%resservation had already given to
SC and ST According to proportionate to their population.
MandalCommission (1979-1980) - MandalCommission submitted its Report in 1980. It was not
implemented for 10 years. On 06August1990 then Hon'ble Prime Minister Mr. Wishwanath
15
Pratap Singh (02Dec.1989-10Nov.1990, Janta Dal) popularly known Raja Saheb and OBC
Crusader decided in meeting of Council of Ministers to implement Report of Mandal
Commission. On 07 August 1990, he announced in Lok Sabha to give 27%reservation to OBC in
Government employment. It created turmoil in whole country. Conflict arised between have and
have not. In 1990 cases were filed in SC. On 16 November, 1992, Supreme delivered Judgement
in Indra Sawhney and other Vs. UOI.
Indra Sawhney and other vs. Union of India DOJ ,16Nov 1992- Supreme Court propounded
following guidelines-
(i) Classification between Backward and More Backwards is constitutional ( Balaji case
overruled.)
(ii) Creamy Layer must be excluded. It is applicable only for OBC and not for SC & ST.
(iii) Reservation should not exceed 50% except in exceptional circumstances for example in
extraordinary situations prevailing in a far flung States(e.g.Nagaland Tripura etc.
(iv) Reservation can be made by executive order. Enactment of Act by Parliament is not
necessary.
Controversial Point-
(v) Caste was approved as a criteria to decide Backwardness. The Court struck down economic
criteria because it has not been mentioned in Articles 15(4) & 16(4).
(vi) No reservation in PROMOTION. (This was nullified by enacting 77th Constitutional
Amendment Act, 1995.By this Amendment Article 16(4A) was inserted and reservation in
promotion was provided for SC & and ST but not for OBC.
(vii) Carry Forward Rule- In this case SC overruled Devasasanvs Union of India (29August
1963) and held that the Carry Forward Rule is valid provided it should not exceed
50%reservation.
To nullify this ratio of the Court, 81st Constitution Amendment Act, 2000 was passed, whereby
Article 16(4B) was inserted. Now in case of Carry Forward, 50%reservation may exceed.
(viii) Supreme Court held that in certain areas reservation is not permissible, for example
(a) Defence services including all technical posts therein but excluding civil post.
(b) All technical posts in establishments engaged in research and development including those
connected with atomic energy and space and defence equipment.
(c) Teaching posts of Professors and above if any.
(d) Posts in super-specialties‘ in medicine, engineering and another scientific and technical posts.
(e) Posts of pilot and co- pilots in Indian Airlines and Air India.
According to directions given under Mandal case, Justice Ram Nandan Committee was
constituted to identify Creamy Layer of OBC. The Committee submitted it's Report in 1993.
In Ashok Kumar Thakur vs. State of Bihar, 1995, Supreme Court struck down unrealistically
high levels of income to decide Creamy Layer.
Dr. Preeti Sagar Srivastava vs. State of Madhya Pradesh, 1999- SC held that merit, not quota
test for admission in super speciality courses in medical and engineering‘s colleges.
M. Nagraj vs. Union of India, 2007, In this case Supreme Court held that Articles
16(4A)&16(4B) is constitional. These Articles do not alter the basic structure of Article 16(4).
16
Supreme Court said State can make a reservation but three conditions must be fulfilled namely-
(1) There must be Backward Class (Article 16(4), &
(2) There must be Inadequacy of representation in service of state Article 16(4).
(3)There should not be any effect upon the efficiency of administration (Article 335).
93rd Constitution Amendment Act,2005
This Amendment was initiated by then Hon'ble Education Minister Mr. Arjun Singh . By this
Amendment Article 15(5) was added whereby 27% reservation was given in educational
institution in favour of SC ,ST, and OBC. This Amendment was challenged.
In Case of Ashok Kumar Thakur vs. Union of India, 2008, SC held this Amendment as
Constitutional.
The Society for Un-Aided Private School of Rajasthan vs. Union of India, 2012. SC held that
Right of Children to Free and Compulsory Education Act 2009 is CONSTITUTIONAL which
provides 25% reservations in primary school.
Reservations are given mainly three area (1) Public Representation I.e. in Parliament, Legislative
assembly and local body (2) Employment (3) Education.
It is given to following groups namely-
(1) ST, (2)SC,(3)OBC,(4) Women,(5) Differently Abled,(6) Ex-employee (7) Economically Poor
persons.
SC, ST, OBC and women can qualify in general category subject to some restrictions.
Deepa E V vs. Union of India and Other, DOJ 06 April, 2017. Hon'ble JJ, R.Banumat and A
M.Khanwilkar Regarding this Judgement, There is a lot of rumour. Rumour is that OBC, SC and
ST candidate can't qualify in general category. This rumour is not true.OBC SC ST can qualify
in general category provided that he/ she has not taken special benefit of reserved category for
example- age relaxation or more attempt etc.
17
ARTICLE 19
Se Article Rights Number Restrictions Amendmen
ria of ts
l restrictio
No n
.
1 19(1)(a) To freedom Eight- (1) Sovereignty and integrity of 1st (1951)
of speech article India,(2) The security of the state, & 16th
and 19(2) (3) Friendly relations with foreign (1963Ame
expression; states,(4) Public order,(5) Decency ndments
or morality or(6) Contempt of
court, (7)Defamation or(8)
Incitement to an offence
2 19(1)(b) To assemble Two - (1)Sovereignty and integrity of 16th
peaceably Article India,(2) Public order (1963)Ame
and without 19(3) ndments
arms;
3 19(1)(c) To form Three- (1)Sovereignty and integrity of 16th (1963)
associations Article India (2) Public order ,(3) Morality and 97th
or unions 19(4) Amendmen
and co- ts
operative
societies
4 19(1)(d) To move Two- (1) Protection of interest of general
freely Article public , and (2) Scheduled tribes
throughout 19(5)
the territory
of India;
5 19(1)(e) To reside Two- Do
and settle in Article
any part of 19(5)
the territory
of India;
6 19(1)(f) Omitted(to Two- Do (Omitted) 44th, 1978
acquire, Article Amendmen
hold and 19(5) ts
18
dispose of
property)
7 19(1)(g) To practise Three- (1) Interest of general public,(2) 1st
any Article The professional or technical Amendmen
profession, 19(6) qualifications (3) State monopoly ts, 1950
or to carry
on any
occupation,
trade or
business
TYPES OF FREEDOM OF SPEECH-TWO TYPES-
(1) Absolute freedom (Articles105 & 194).
(2) Qualified Freedom Article 19(2) and 499 of IPC).
Article 19- Leading Case , Four Amendments (1st,1951-Public order, Incitement to an
offence, friendly relations with foreign states,& reasonable, 16th1963 the sovereignty and
integrity of India,44th omitted Article 19(1)(f)- Right to Property ,1978,wef 26-06-1979 &
97th,2011,wef 2012 to form the cooperative societies , added in Article 19(1)(C).
USA & INDIA:-There are two difference between USA and Indian law regarding freedom of
speech namely,
(1) In USA, by first amendment, freedom of speech and press were expressly mentioned while in
Indian Constitution, it is implicit and developed by Court.
(2) In USA, there is no specific restrictions have been mentioned in Constitution. Restrictions
have been developed by Courts. In India, eight (8) restrictions have been mentioned in Article
19(2).
(1)BRIJ BHUSHAN AND ANOTHER VS STATE,DOJ,25-05-1950, Pre -censorship on
journal is unconstitutional ( Name of journal - Organiser- News regarding Communal violence
and Pakistan).
(2) ROMESH THAPPER VS STATE OF MADRAS,DOJ,25-05-1950, Justice Patanjali "
Freedom of speech and of the Press lay at the foundation of all democratic organisations, for
without free political discussions no public education, so essential for the proper functioning of
the process of popular Government , is possible" In this case Supreme Court said that public
order is not the ground mentioned under Article 19(2) so on this basis restrictions can't be
imposed. The Court said that circulation of ideas through journal or newspapers is a part of
freedom of speech and expression. Imposition of a ban upon entry and circulation of a journal
within a state is restriction of Article 19(1) (a).Fact- "Cross Road" journal which was printed and
published in Bombay. Madras Government banned this journal in Madras by using the power
given under Madras Maintenance of Public Order Act, 1949 on the ground of "Public Order"
In both the above cases freedom of press was recognized as fundamental rights. Both the cases
were decided on the same date.
To overcome on these Judgments (and ChampacamDorairajan - related to reservation)
The Constitution (First Amendment) Act, 1951 was passed on 18-06-1951. By this Amendment,
three new grounds namely- (Public Order, Incitement to an offence and friendly relation with
19
foreign state and by 16th Amendment, 1963 sovereignty and integrity of nation was added) and
reasonable (reasonable restrictions) were added.
(3) SAKAL PAPERS LTD.VS UNION OF INDIA, 1962. Fact- The Newspaper (Price and
Page) Act, 1956, & The Daily Newspaper (Price and Page) Order, 1960 sought to regulate
number of pages according to the price charged and regulate the size and area of advertisement.
Supreme Court held that this Order is invalid. S C said Article 19(1) (a) guarantees not only what
a person circulate but also the volume of circulation.
Reason of Judgement-. The Court said that curtailing of advertisement of area wd directly affect
income of Newspaper, the person wd be bound to increase the price of newspaper, then
circulation of newspaper wd be affected.
(4) BENNET COLEMAN AND CO. VS UNION OF INDIA, 1973, An order which was
fixing maximum number of pages(10), was challenged. Supreme Court said that it's direct effect
is on circulation and growth of newspapers through pages and it wd cause financial loss. So such
Order is unconstitutional.
(5) HAMDARD DWAKHANA VS UNION OF INDIA,1960, Every advertisement is not part
of speech for example effect of medicine is like a magic.
(6) BIJOE EMMANUEL VS STATE OF KERALA,1986, (National Anthem Case) - Freedom
of speech includes right to silence.
(7) R. RAJAGOPAL VS. STATE OF TAMILNADU,( Auto Shankar case),1994, The
Supreme Court has held that the Government has no authority in law to impose a prior restraint
upon publications of defamatory material against its official..
New Dimension:-
(8)SECRETARY, MINISTRY OF INFORMATION AND BROADCASTING VS

CRICKET ASSOCIATION OF BENGAL,1995- Government has no Monopoly on electronics
media..
(9) TATA PRESS LTD. VS. MAHANAGAR TELEPHONE NIGAM LTD(MTNL),1995,
Commercial advertisement is a part of freedom of speech and expression.
(10) BOBBY ART INTERNATIONAL VS OM PAL SINGH HOON( Bandit Queen case,
Phoolan Devi , a lady who took revenge of her rape,1996. Exhibition of Film- The Court said
that from every nude seen, lust is not arisen.
(11)UNION OF INDIA VS ASSOCIATION FOR DEMOCRATIC REFORMS,2002,
Supreme Court held that Right to vote is a fundamental rights, so voters have right to know about
their candidate. So candidates are bound to submit affidavit regarding their education, income
and crime cases etc.
(12)MD AJMAL MD AMIR KASAB STATE OF MAHARASHTRA( Taj Hotel Attack
Case,2008,, DOJ,2012- Live show of terrorist attack- Supreme Court criticized this trend and
said that an action tending to violate another person's right to life or putting the national security
in jeopardy can never be justified by taking the plea of freedom of press.
CONDITIONS for RESTRICTIONS 19(2):-
There are three conditions to apply Article 19(2)-
First- By law- The restrictions can beimposed only by or under the authority of law. No
20
restriction can be improsed by executive action alone without their being a law to back up it.
Second - Restriction must be related only to eight grounds mentioned in Article 19(2).
Third- Restrictions must be reasonable.
Restrictions (8)- There are two types of restrictions-
(1) Original Restrictions-4
(i) Security of State,
(ii) Defamation,
(iii) decency or Morality
(iv) Contempt of Court
(2)Added-
(v) Friendly relations with foreign states,(1951),
(vi) Public Order, (1951),
(vii) Incitement of an offence(1951),
(viii) sovereignty and integrity of the nation(1963),
(1)SECURITY OF STATE-- Security of State means direct challenge of sovereignty, namely
violence intended to overthrow the government, waging war, external aggression of war etc.
Serious and aggravated form of public disorder are within the expression ' security of State. In
RomeshThapper ,DoJ 25-05-1951 Supreme Court said that the expression security of State does
not refer to ordinary breaches of public order which do not involve any danger to the State itself.
(2) PUBLIC ORDER- It was added by 1st Amendment after RomeshThapper case. Public order
is synonymous with public peace, safety and tranquility. For example, rioting, affray etc.
Superintendent, Central Prison vs. Ram ManoharLohia, 1960. In this case SC invalidated section
3 of U. P. Special Powers Act, 1932 which punished a person, even if he invited a single person
not to pay or defer the payment of Government dues because there was no Nexus between
speech and public order. The court said that FR cannot be curtailed on hypothetical grounds that
this speech wd be grounds for revolution.
Third- Friendly relations with foreign states- Added by 1st Amendment- According to Article
51, State shall endeavour to promote international peace and security and maintain just and
honorable relations with other country.
So to maintain good relationship with other nations it became necessary to control freedom of
speech otherwise some people of nation may start hate speech against another state. Sometimes
dignitary of other country comes into our country, to maintain their dignity, this ground is used.
FOURTH- Contempt of Court - Supreme Court (Article 129), High Courts (Article 215), The
Contempt of Courts Act, 1971. E. M.S NAMBOODRIPAD VS T.N. NAMBIAR, The SC said
that freedom of speech shall always prevail except where Contempt of Court is manifested,
mischievous or substantial. Sections 228 and 499 of IPC are also related to Contempt of Court.
FIFTH- Sovereignty and integrity of India- Added by 16th Amendment. By this
Amendment,schedule third was also amended,so now oath is also taken to uphold sovereignty
and integrity of India.
SIXTH- Incitement of an offence- In several case, Incitement of an offence are also punishable
when they affect public peace. But in some case Incitement of an offence do not affect public
peace for example bribery forgery and cheating...
SEVEN- Defamation - Defamation is crime (section 499) and torts( Libel-actionable per se and
in permanent form,& slander- is not actionable per se except in exceptional circumstances and in
transitional for.)
21
EIGHT- Decency and morality-IPC section 292 to 294 and Indian Contact Act, Section 23-. It
varies according to time, place society and relationships with persons.
PART-2, Article 19(1)(b) to(g) & Article19 (3) to (6):-
Rights and Restrictions:-
(1)Art.19(1)(b)- Art.19(3) Right to assemble peacefully and without arms-

Restrictions (a) sovereignty and integrity of India (b) Public order
(2)Art.19(1)(c)- Art.19(4).Right to form associations or Unions or cooperative societies-
Restrictions (a) Sovereignty and integrity of India (b) public order(C) Morality.
(3)Art.19 (1) (d) (e) & (f) Art. 19(5). (d) to move freely throughout the territory of India,(e) to
reside and settle in any part of the territory of India,(f) to acquire, hold and dispose of
property- omitted by 44th Amendment,1978 .
Restrictions--- (a) General Public, (b) protection of the interests of any Schedule Tribes.
(4) Article 19(1) (g) --Art.19 (6)- to practise any profession, or to carry on any occupation,
trade or business-
Restrictions-(a) in the interest of the general public (b) professional and technical
qualifications(c) monopoly.
Sovereignty and integrity of India is a ground on the basis of which reasonable restrictions
may be imposed over the rights which have been conferred by Article 19(a), (b) and (C). This
ground was added by 16th Amendment in 1963 after Indo-China war in 1962.
(1) RIGHT TO ASSEMBLE PEACEFULLY AND WITHOUT ARMS:-

This is a right of
citizen to assemble peacefully and hold meeting to form an opinion regarding any issues. The
right of assembly includes the right to hold meetings and to take out processions. As we know
that, main base of democracy is popular opinion of public. This popular opinion is formed only
by meeting of persons. This right is very close to freedom of speech and expression. Without this
right, Jallianwala Bagh massacre may be occurred. By using this right, I have participated in a
movement against corruption called by Mr. Anna Hazare in 2012. But the two conditions must
be fulfilled, namely-
(1) Assembly must be peaceful, &
(2) Assembly must be without arms.
If assembly has been constituted for unlawful object, then member of that assembly would be
punished under section 143 of IPC, 1860.
There are two circumstances when peaceful assembly without arms may be prohibited by the
State in the interest of-(1) public order,or (2) sovereignty and integrity of the India.
(2) RIGHT TO FORM ASSOCIATIONS, UNIONS, & CO-OPERATIVE SOCIETIES

(Article 19(1)(C)& Art.19(4):-
Without such right political parties cannot be formed and without such
parties , democratic form of government, especially, Parliament form of Government cannot be
22
run . Citizens have FR to form labour unions and societies under this right. Right to form CO-
OPERATIVE SOCIETIES has been inserted by 97th Constitution Amendment in 2011.But
this right is not absolute. There are three grounds on the basis of this fundamental rights may be
curtailed-
(a) Sovereignty and integrity of nation (b) public order, or (C) Morality.
(3) RIGHT TO MOVE FREELY and to RESIDE & SETTLE throughout or any part thereof
within the territory of India.Art.19 (1) (d) & (e) & Art19 (5). Clause (d) gives right to move
freely throughout the territory of India. In case of AJAY KANU vs. UNION OF INDIA,
AIR1988 SC, in this case Motor Vehicles Act which provides that wearing of helmet is
compulsory. It was challenged on the ground that it was imposing restrictions on right to move.
Supreme Court held that the rule is made to prevent accidents for benefit and welfare of the
society and not to curtail freedom of movement.
EXTERNMENT ORDER- EXTERNMENT ORDER is a order by which it is required to person

to leave a state or district. Such Order is challenged on the ground of violation of right to free
movement 19(1) (d) and right to residence and settle. Such types orders are issued generally in
election time or in case of fear of witnesses.
DEPORTATION:- DEPORTATION means when one country expels its own citizen out of the
country. Article 19(1) (e) has also been used to challenge deportation of Indian citizens out of the
country.
These rights are creating feeling of oneness all over India. But these rights are not absolute.
Reasonable restrictions may be imposed on those grounds which have been mentioned in Article
19(5), namely- to protect the interest of (1) general public, (2) Scheduled Tribes- Article
366(25) and Schedules- Fifth & Sixth.
(4)RIGHT TO PROPERTY, Article,19(1)(f) &Art19(5):-

Right to Property has be abolished by
44th Constitution Amendment Act in 1978 my Janta Party, then Prime Minister was Morarji
Desai from Gujarat. By this Amendment Article 31 was also omitted and 300A was inserted.
So now right to Property is CONSTITUTIONAL Right.
(5) RIGHT OF FROFESSION, OCCUPATION, TRADE OR BUSINESS,

ARTICLE,19(1)(g) &Art19(6):-
In State of Tamilnadu vs K Balu , DOJ 31-03-2017.There is no fundamental right to carry on
business in liquor since as a matter of constitutional doctrine, Article 19(1)(g) does not extend to
trade in liquor which is consistently regarded as res extra commercium( a things beyond
commerce) . In this case Supreme Court passed an order that no licence should be granted to
sale liquors on national or state highway.SC said that it must be ensure that liquors must not be
visible or accessible directly within 500 metre from the outer edge of highway or service lane of
highway.
To defeat this Order, several State converted State Highway to District Road . For example,
Uttar Pradesh Government converted 64 State Highway to District Road.
23
These rights are not absolute, for clause (6) of the Article authorizes legislation which
(1) Imposes reasonable restrictions on this right in the interest of the general public,(2)
prescribes professional or technical qualifications necessary for carrying on any trade ,
profession or business,(3) enables the State to carry on any trade or business to the exclusion of
private citizens wholly or partially.
ARTICLE 21
ARTICLE -21, LEADING JUDGMENTS, THEIR DECISIONS AND YEARS.
S. Yea Leading Cases Important Points
N r
1 LIFE
1877 Munn Vs. Justice Field ―By the term life as here used something more is
Illinois, 1877, meant than mere animal existence .The inhibition against its
USA deprivation extends to all those limbs and faculties by which
life is enjoyed. The provision equally prohibits the mutilation
of the body by the amputation of an arm or leg….‖
1978 Maneka Gandhi Right to life is not confined to physical existence but it
vs. UOI includes right to life with human dignity.
1981 Francis Coraliee Justice Bhagwati, ― We think that right to life includes right
Vs. Delhi, 1981 live with human dignity and all that goes along with it ,
namely , the bare necessaries of life such as adequate
nutrition , clothing and shelter over the head and facilities for
reading , writing and expressing oneself in diverse forms ,
freely moving about and mixing and com-mingling with
fellow human being.
1986 Olga Tellis vs The Supreme Court said that life is not restricted to the mere
Bombay animal existence of a person. It means something more..
Municiple
Corporation,
1986
1990 Shantisar …Life for the animal is the bare protection of the body, for a
Builders vs. human being , it has to be suitable accommodation which
Narayanan allows him to grow in all aspects- physical , mental and
Khimalal intellectual.
Totame,1990
2017 Shayara Bano Triple Talaq is unconstitutional.
22A vs.UOI
ug
2 PERSONAL LIBERTY,
Dicey "Personal liberty" means a personal right not to be subjected
24
to imprisonment, arrest or other physical coercion in any

manner that does not admit of legal justification.‖
1950 A.K. Gopalan vs. ‗Personal Liberty‘ in Article 21 means nothing more than the
State of Madras, liberty of physical body that is freedom from arrest and
19 May,1950 detention without authority of law.
1963 Kharak Singh Personal liberty is used as compendious term to include itself
Vs. State of all verities of rights which go to make up personal liberties.
Uttar
Pradesh,1963
1978 Maneka Gandhi Personal liberty makes for the worth of the human being and
vs. UOI,1978 travels makes liberty worthwhile. Right to go abroad cannot
be curtailed except according to procedure established by law.
3 LAW
1950 A.K. Gopalan vs. CJI H.J.Kania ―Law in Article 21 must mean the law of the
State of Madras, State or enacted law, and not rules of natural justice.‖
19 May,1950 Patanjali Sastri J. ―Law in Art. 21 means positive or State-
made law.‖ Minority Opinion- Fazl Ali J. ―Law must include
certain principles of natural justice.‖
12 Pandit M. S. M. Article 194(3) confers on the Legislative Assembly those
Dec, Sharma vs. Shri powers, privileges and immunities and Art. 208 confers
1958 Sri Krishna power on it to frame rules. Such ‗Rules‘ are also law under
Sinha And Article 21.
Others(Searchlig
ht Case)
1962 Prem Chand Rule making powers of S.C u/Article 145 is law and such
Garg vs.Excise powers are subject to FRs. (It was not related to Article 21. It
Commissioner, was related to Arts 19, 32,142 and 145.)
U. P.,(Writ
petition security
for costs of
respondents)
1967 Ratilal Mithani Inherent power of High Court-Article 225. The procedure for
vs. Assistant invoking the inherent powers is regulated by rules framed by
Collector of the High Court. The power to make such rules is conferred on
Customs, the High Court by the Constitution. Such Rules are law for
Bobmay the purpose of Article 21.
1975 Govind vs. State Regulations made under Police Act fall under Article 21.
of Madhya
Pradesh
1978 Maneka Gandhi Law is reasonable law, and not only any enacted piece. It
vs UOI,1978 must be just, fair and reasonable i.e. which embodies the
principle of natural justice. Approach of Natural School was
accepted.
1982 A.K.Roy vs. Ordinance is also law for the purpose of Article 21.The
UOI Constitution makes no distinction between a law made by the
(National legislature and an Ordinance issued by the President. Both are
25
Security equally products of the exercise of legislative power and

Ordinance , 1980 therefore both are equally subjects to limitations which are
was challenged ) the constitution has placed upon their power.
4 RELATION BETWEEN ARTICLE14, 19,21,22,&31
1950 A.K.Gopalan vs. There is no inter-relation between Articles 21 & 19. Each
State of Madras Articles are mutually exclusive.
1970 R.C.Cooper vs. There is inter-relationship between Articles 19(1) (f) &
UOI 31(2).
1978 Maneka Gandhi All Articles related to FRs are connected to each-other.
vs. UOI Article 14, 19,& 21are not mutually exclusive.
5 RIGHT TO TRAVEL
1967 Satwant Singh right to travel is part of personal liberty and it can be deprived
Sawhney Vs. only by procedure established by law
D.R.Assistant
Passport
1978 Maneka Gandhi Personal liberty makes for the worth of the human being and
vs. UOI travels makes liberty worthwhile. Right to go abroad cannot
be curtailed except according to procedure established by law.
6 RIGHT TO PRIVACY
1963 Kharak Singh vs. Right to privacy is not a fundamental rights under Articles
State of U.P. 19(1) (d) (e) & 21. Minority opinion- J.Subba Rao, ―Right to
to personal liberty takes in not only a right to be free from
restrictions placed on his movements but also free from
encroachments on his private life. It is true our constitution
does not expressly declare a right to privacy as a fundamental
right, but the said right is an essential ingredient of personal
liberty …. ‖
1975 Govind vs. State Supreme Court accepted a limited Fundamental Rights to
of M.P. Privacy under Articles 19(1) (a) (d) & 21.
1991 State of Right to privacy is available to a women of easy virtues also.
Maharashtra vs. She is also a person.
Madhukar
Narayan
1994 R. Rajagopal vs. Auto Shankar wrote his autobiography while confined in jail.
(7 State of Tamil The autobiography was handed over by him to his wife, for its
Oct.) Nadu publication. The Court has asserted that in recent times the
right to privacy has acquired constitutional status; implicit in
Article 21. It is a right to be let alone.
1995 Mr. X vs. Right to privacy vs. Right to life. Right to privacy is not an
Hospital Z absolute right & restrictions can be imposed on it for the
prevention of crime, disorder or protection of health or morals
or protection of rights and freedoms of others.
1997 PUCLvs. UOI ( S.C said that phone tapping is an invasion on right to privacy.
Phone Tapping Phone tapping should not be done unless it is necessary for
Case) security of State or interest of public.
2003 Surjit Singh vs. Virginity test is an invasion on right to privacy.( P&H high
26
Kanwaljit Kaur Court).

2017 Justice Right to privacy is fundamental rights.
24A K.S.Puttaswami(
ug Retd.) and Anr.
Vs. UOI and Ors
7 RIGHT TO LIVELIHOOD
1986 Olga Tellis vs. Right to life includes right to livelihood.
BMC( Pavement
Dwellers Case)
1989 Sodan Singh Vs Right to life does not include right to carry on trade or
New Delhi business
Municipal
Committee
8 RIGHT TO SHELTER
1996 Chameli Singh Right to Shelter is FR U/A 21.
vs. UP
9 DAMAGES
1981 Khatri Vs. State The Court Ordered the State to meet the expenses of housing
of Bihar( these men in a blind home in Delhi.
Bhagalpur
Blinding Case)
1983 Rudal Singh vs. Petitioner was 14 years in Jail illegally. He was awarded
.1st State of Rs.30000 (Thirty thousands) as compensation. It was
Aug. Bihar(CJI- the first case when compensation was given for
Y.V.Chandrachu violation of Article 21.
d)
1984 SebastianM.Hon The Government must pay Rs. one lac to each of the aforesaid
gray vs. UOI women.
1985 Bhim Singh vs. Petitioner was awarded 50,000 Rs. (Fifty thousands) as
State of J&k compensation.
1989 PUCL vs. A labourer demanded money for doing work in Police
Commissioner , Station. He was beaten consequently he died. It was held
Delhi Police State was liable to pay 75000Rs to the family of deceased.
1989 Saheli vs. A boy, aged of 9 years, died because of beating of
, 14th Commissioner of police.75000 compensation to victim of mother.
Dec. Police, Delhi
1993 Nilabati Behra Police custodial death and dead body was found on railway
vs.State of track. 1, 50,000/-Rs compensation to the petitioner.
Orissa
1995 Delhi Domestic Four domestic women servants were raped by seven army
Working personnel in a running train Muri Express from Ranchi to
Women‘s Forum Delhi. Compensation was granted and guidelines were
Vs. UOI directed for speedy trial of such rape victim.
1996 Bodhisathwa Interim compensation for rape victim until her case is finally
Gautam vs. decided.
Subhra
27
Chakraborty
2000 Chairman, Rape of foreigner in a room at Yatri Niwas of Howrah
Railway Board Railway station. The Court said that relief can be given to a
Vs. Chandrima foreigner for violation of Article 21 under public law.
Das (Compensation under Torts is private law)
10 HANDCUFFING
Prem Shankar J Krishna Ayer ―Handcuffing is prima facie inhuman and
1980 vs. Delhi therefore, unreasonable is over harsh and first flush arbitrary.
Administration Absent of fair procedure and objective monitoring, to inflict
iron is to resort zoological strategies repugnant to Article
21.‖Handcuffing should be resort when there is clear and
present degree of escape breaking out police control. Mandate
was given to Judicial office to ensure that arrested person was
not handcuffed without reason.
1981 Khatri vs. State To be consistent with Articles 14 &19, handcuffs must be last
of Bihar refuge, not the routine regimen. Binding of the accused by the
police while in the police custody violates Art.21.
1990 Sunil Gupta vs. Reputed & Social Person. There was no reason recorded by
State of M.P. escort party (police) in writing for this inhuman treatment..
The Court directed to State to take action against erring
authority.
1995 Citizen for Handcuff of seven detenues in hospital. Handcuffs or other
Democracy Vs. fetters shall not be forced on a prisoner convicted or under -
State of Assam trial while lodged in jail anywhere in the country or while
transporting or in transit from one jail to another or from jail
to court and back.
11 ECOLOGY/ ENVIRONMENT
1986 M.C.Mehta M.C. Mehta v. Union of India originated in the aftermath of
,20D &Another vs. oleum gas leak from Shriram Food and Fertilisers Ltd.
ec. UOI & Ors, complex at Delhi. This gas leak occurred soon after the
CJI infamous Bhopal gas leak and created a lot of panic in Delhi.
P.N.Bhagwati( Jurisprudence--Law--Should keep pace with changing
12 July1985-20- Socio-economic norms---Where a law of the past does not
Dec.1986). fit in to the present context, Court should evolve new law.
Justice Bhagwati denied the principle of strict liability and
evolved new principle i.e. Principle of Absolute Liability.
1986 M.C.Mehta vs. Justice Kuldip Singh,(14 December 1988 – 21 December
30D UOI (Taj 1996). Supreme Court issued several guidelines to control
ec. Trapezium pollution from industries in Mathura to protect Taj Mahal.
Case)
1987 M.C.Mehta vs. Forty three respondents admitted that Tanneries discharged
22 UOI. (Kanpur their trade effluents into the sewage nallah which led to the
Sep Tanneries Case) municipal sewage plant before they were thrown into the river
Ganga. Supreme Court passed an order for closing of
Tanneries and said that in spite of several statutes government
did not take action .It passed directions to prevent pollutions
28
from tanneries.
1991 Subhash Kumar Article 21-Right to live includes right to enjoyment of
9Jan. vs. State of Bihar pollution free water and air. If anything endangers or impairs
(Quality of life) that quality of life in derogation of laws, a citizen has a right
to invoke Article 32 for removing pollution of water or air
which may be detrimental to the quality of life.
Indian Council The petitioner, the Indian Council for Enviro-Legal
1996 for Enviro-Legal Action brought this action to prohibit and remedy the
13Fe Action vs. UOI pollution caused by several chemical industrial plants in
b (Bichhri village Bichhri village, Udaipur District, Rajasthan. The principle of
Case) ‘Polluter Pays‘ was applied in this case inasmuch as "the
Polluter Pays incident involved deliberate release of untreated acidic
Principle and process wastewater and negligent handling of waste sludge
Absolute knowing fully well the implication of such acts." "The cost of
Liability damage to be disbursed to the affected villagers is estimated
at Rs.342.8 lakhs and remediation of impacted well waters
and soil at Rs.3738.5 lakhs. This cost needs to be borne by the
management of the industry in keeping with the Polluter Pays
principle and the doctrine of Absolute liability, as applied to
Sri Ram Food and Fertilizers Industry in the case of Oleum
leak in 1985."
1996 Vellore Citizens Pollution which was being caused by enormous discharge of
28 Welfare Forum untreated effluent by the tanneries and other industries in the
Aug vs. UOI. State of Tamil Nadu . It was stated that the tanneries are
J.Kuldip Singh discharging untreated effluent into agricultural fields to, road-
(All three Sides, water ways and open lands. The untreated effluent was
principles was finally discharged in river Palar which was the main source of
discussed and water supply to the residents of the area.
along with two "The Precautionary Principle" and "The Polluter Pays"
third principle principle are essential features of "Sustainable Development".
namely The "Onus of proof" is on the actor or the
Sustainable developer/industrial to show that his action is
Development environmentally benign.
was accepted.
1996 M.C. Mehta vs. Mr. Kamal Nath was Minister of environment and
13D Kamal Nath. Forests. Kamal Nath's dream of having a house on the bank
ec. Kuldip Sing, of the Beas in the shadow the bank of the Beas in the of the
Public Trust snow-capped Zanskar ranges ( Kullu-Manali, Himachal
Doctrine Pradesh). The Court said ―We see no reason why the public
trust doctrine should not be expanded to include all eco-
systems operating in our natural resources. The public trust
doctrine is a part of the law of the land. Our legal system -
based on English Common Law - includes the public trust
doctrine as part of its jurisprudence. The State is the trustee of
all natural resources which are by nature meant for public use
and enjoyment. Public at large is the beneficiary of the sea-
29
shore, running waters, airs, forests and ecologically fragile

lands. The State as a trustee is under a legal duty to protect
the natural resources. These resources meant for public use
cannot be converted into private ownership.‖
2005 In Re: Noise W.P.was filed by Shri Anil K. Mittal, an engineer by
18 Pollution; profession moving the Court pro bono publico. The
July Restricting use immediate provocation for filing the petition was that a 13
of loudspeakers. year old girl was a victim of rape. Her cries for help sunk and
CJI R.C.Lahoti went unheard due to blaring noise of music over loudspeaker
in the neighborhood. The victim girl, later in the evening, set
herself ablaze and died of 100% burn injuries. Article 21
includes freedom from noise. Complete ban on bursting
sound between 10 P.M. to 6A.M.
2006 Intellectual IN the name of urban development , environment cannot be
13Fe Forum Tirupathi destroyed.
b. vs. State of A.P.
2012 Research Disposal of hazardous and toxic substances.
Foundation for
Science vs.UOI
11 RIGHT TO DIE
1994 P.Rathinam vs. Right to life includes right to die.
UOI
1996 Gian Kaur Vs. Right to life does not include right to die.
State of Punjab
12 EUTHANASIA
2011 Aruna J.Markandey Katju- Passive euthanasia was allowed and for
R.Shanbaugh this guidelines were laid down.
vs.UOI
13 RIGHT TO EDUCATION
1992 Miss. Mohini J. Kuldip Singh, Capitation Fee Case,-Right to education is a
Jain vs.State of fundamental right U/A.21 which cannot be denied by
Karnataka imposing higher fee which is known as ‗Capitation Fee‘.
1993 Unni Krishnan Supreme Court examined the correctness of Mohini Jain case
vs. State of A.P. and partly accepted ruling of Mohani Case. The Court
accepted that right ot education is a F R U/A 21 which flows
from right to life but said that right to free education is
available only to children until they complete the age of 14
years.
14 RIGHT TO FOOD
2000 PUCL vs. UOI S.C. held that people who(aged, infirm, disabled, destitute
women, children & men, pregnant and lactating women) are
starving because of their inability to purchase food grains
have right to get good U/A. 21 and therefore they ought to be
provided the same free of cost by the State out of the surplus
stock esp. when grains is unused and rotting.
15 BAN ON SMOKING IN PUBLIC PLACE
30
2002 Murli S. Deora Non-smoker should not be deprived of his life without due
vs.UOI process of law. Non-smokers are affected by various disease.
It is indirectly affect to right to life. There is no reason to
compel noon-smokers to be helpless victims of air pollution.
S.C. banned on smoking on public place.
Protection against illegal arrest , detentions and custodial
death
1993 Nilabati Behra Compensation 1,50,000 Rs.
vs. State of
Orissa
1994 Jogindar kumar Practicing Advocate ….Supreme Court propounded
vs. State of U.P.. guidelines for arrest and introgation.
1997 D.K. Basu vs. ….Supreme Court propounded detailed guidelines for arrest
State of W.B. and detention.
16 RIGHT TO FREE LEGAL AID
1978 M.H. Hoscot vs. Right to free Legal Aid is FR U/A.21
Maharashtra
17 RIGHT TO SPEEDY TRIAL
1979 Hussainara Right to Speedy Trial is F.R.under Art.21
Khatoon (No.1)
vs State of Bihar
Difference between A.K.Gopalan(1950) and Maneka Gandhi Case(25 January 1978)
Serial A.K.Gopalan Vs. State of Madras. Maneka Gandhi Vs. UOI,

No. DOJ-19-05-1950 (DOJ- 25 January,1978)
1 In the initial stage, the Court interpreted This case was decided after
life and liberty in a very narrow sense. emergency period. So Supreme
Court tried to revive value of
Fundamental Rights.
2 Articles 19 and 21 are mutually Articles 14, 19 and 21 are not
exclusive. Its means both articles are not mutually exclusive. These are
connected to each other. inter connected to each other.
3 Article 21 protects only from executive Article 21 protects from arbitrary
actions. executive actions and against
arbitrary law enacted by
Legislative body.
4 Law means enacted piece of legislation. Law must be just, fair and
Any types of legislation whether just or reasonable. Law is not merely
unjust is law. Approach of Analytical piece of legislation. Approach
School was applied. There is no scope of Natural School was applied.
for jus naturale. There is scope for jus naturale.
5 Law and procedure established by law Law and procedure must be just
cannot be challenged. fair and reasonable.
31
6 Personal Liberty‘ in Article 21 means Right to life is not confined to

nothing more than the liberty of physical physical existence but it includes
body, that is freedom from arrest and right to life with human dignity.
detention without authority of law. Right to life includes right to go
abroad.
7 Article 21 deals deprivation (total loss) Articles 19 and 21 are connected
of liberty while Article 19 gives to each other. So if any law
protection against unreasonable depriving liberty of any person
restrictions (which is partial control) on must also satisfy others
the right to movement. provisions of the constitution.
8 Article 19 can be invoked only when a Article 21 would be applied in
law directly attempted to control the both the case whether it is direct
freedoms mentioned therein. or indirect restrictions.
A.K GOPALAN VS. STATE OF MADRAS TO MANEKA GANDHI VS. UOI
Topic A. K . Gopalan vs State of Other Leading Maneka Gandhi vs.

Madras, DOJ-19-05-1950 Cases UOI, (DOJ- 25
January,1978)
Facts A.k. Gopalan was communist Kharak Singh vs. Maneka Gandhi, a
leader of Madras (now Kerala). State of Uttar journalist, was issued
He participated in several Pradesh, 1963, a passport on June 1,
national movements. He was sent Art.19(1) dealt 1976 under The
several times in jail. The with particular Passport Act 1967.
petitioner, who was already under species or On the 4th of July
the custody of the attributes of that 1977,the petitioner
Superintendent, Central Jail, freedom received a letter dated
Cuddalore, was served with an mentioned in 2nd July, 1977, from
order of detention under section 3 Art.19(1), Personal the Regional Passport
(1) of the Preventive Detention Liberty in Art.21 Officer Delhi
Act, 1950 on the 27th February would take in and intimating to her that
1950. It was said in the order that comprise the it was decided by
the Governor of Madras was residue. This was the Government of
satisfied that it was necessary to projection of India to impound her
make the order with a view to A.K.Gopalan case passport under section
preventing him from acting in of keeping Art.21 10 (c)of the Act "in
any manner prejudicial to the separate from public interest". The
security of the State and the Art.19. But The petitioner was
maintenance of public order. On Court gave quite required to surrender
20th March 1950 a petition was broad dimension her passport within 7
32
presented to this Court under of personal liberty. days from the receipt
article 32 of the Constitution It said that of that letter. The
praying for the issue of a writ of personal liberty is petitioner immediately
habeas corpus directing the State used as addressed a letter to
of Madras to produce him before compendious term the Regional
the Court and to set him at to include itself all Passport Officer
liberty. verities of rights requesting him to
which go to make furnish a copy of the
up personal statement of reasons
liberties. Satwant for making the order
Singh Sawhney as provided in s.10(5).
Vs. D. A reply was sent by
Ramarathnam, the Government of
Assistant Passport India, Ministry of
Officer,10/04/1967 External Affairs on
The Court held 6th July 1977 stating
that right to travel inter alia that the
was part of Government decided
personal liberty "in the interest of the
and it can be general public" not to
deprived only by furnish her copy of the
procedure statement of reasons
established by law. for the making of the
In consequence of order. The petitioner
this case, Passport thereupon filed the
Act, 1967(24/04/ present Writ Petition
1967) was passed. challenging action of
the Government in
impounding her
passport and declining
to give reasons for
doing so.
Personal According to Dicey, "personal Kharak Singh Personal liberty makes

Liberty liberty" means a personal right Case-The Court for the worth of the
not to be subjected to gave quite broad human being and
imprisonment, arrest or other dimension of travels makes liberty
physical coercion in any manner personal liberty. It worthwhile. Right to
that does not admit of legal said that go abroad cannot be
justification. Majority View- curtailed except
‗Personal Liberty‘ in Article 21 according to
means nothing more than the procedure established
liberty of physical body, that is by law.
freedom from arrest and
detention without authority of
33
law.
Right to Right to life is not
Life confined to physical
existence but it
includes right to life
with human dignity.
Due American concept- Due process Procedure must be just
Process of of law would not be applied in fair and reasonable. In
Law vs.India-Reason (1) ‗Due‘ word is this way the Court
Procedure absent. (2) Original draft indirectly accepted
Established constitution contained the word due process of law. So
by Law ‗due process of law‘ .These it gives the protection
words later on dropped and from legislative
instead of this ‗Procedure enactment also.
established by law‘ was
established.
Relation DILINKED-All these Articles are R.C. Cooper vs. Linked To Each
between mutually exclusive. Mutually UOI (Bank Other- Procedure must
Articles 19 exclusive means complete itself Nationalization answer the test of
,21& 22 and not connected to each other. Case), 1970, The reasonable in order to
Article 19 would be applied only Court established a confirm with Article
seven types of freedom. Article link between 14. Articles 14, 19
19 would not be applied, where Art.19 (1)(f) and &21 are interrelated to
Article 21 are applied. 31(2) to provide each other. Hon‘ble
some protection to Krishna Iyer said (1)
private property. ―No Article in the
It was precursor of Constitution
the trend to link pertaining to FRs is an
Articles 19, 21 ISLAND in itself. Just
&22. a man is not
dissectible into
separate limb, cardinal
rights is an organic
constitution have
synthesis.‖ (2) ―The
spirit of man is at the
root of Article 21.‖(3)
Article 21 is
procedural
Magnacarta protective
of life and liberty.‖
Law Law was used in the sense of lex Law is reasonable law,
(State made law) and not jus and not any enacted
natural ( Rules of Natural piece. It must be just,
Justice). Law cannot be declared fair and reasonable i.e.
unconstitutional due to lacking of which embodies the
34
principle of natural justice. principle of natural

Legislative Authorities are free to justice. Approach of
lay down any procedure. Natural School was
Approach of Analytical School accepted.
was accepted.
Executive Article 21 protects only from the Article 21 is a Now law and
& arbitrary action of executive. source of many procedure both must
legislative Article 21 does not protect from substantive rights be just, fair, and
competent legislative action. and procedural reasonable. Now
safeguard. Article 21 gives
protection against
arbitrary executive
action and arbitrary
law enacted by
Parliament
Right to Right to move (19(1) (d) is not Personal liberty is of
move and come in category of personal widest amplitude
personal liberty as enshrined in Art.21. covering a variety of
liberty Art. 21 would be applicable rights which go to
where Art.21 does not apply. constitute the personal
liberty of man. Some
of these have got the
status of distinct FR
and given additional
protection under
Art.19. Personal
liberty includes right
to move.
Direct & Article 19 can be invoked only Bennett Coleman Article 21 would be
Indirect when a law directly attempted to &Co. Vs. UOI, applied in both the
Test control the freedoms mentioned 1973. The Court case whether it is
therein. But Art.19 cannot be overruled the A.K. direct or indirect
invoked when a law indirectly Gopalan case & restrictions.
infringed a rights mentioned held that if a law
u/Article 19. affected freedom
of speech, its
reasonableness
become assessable
with reference to
Art. 19(2) even
though it was
enacted directly to
control the
freedom of speech.
Doctrine of Section 14 of the Prevention Post-decisional
Severability Detention Act, 1950 is Hearing-First time
35
unconstitutional but it is post decisional

severable, so whole Act minus hearing principle was
Section 14 is Constitutional. accepted in India.
KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, DAGLC, PUDUCHERRY.
DIFFERENCE BETWEEN ARTICLE 23&ARTICLE 24

Article 23 Article 24
Person, age is irrespective. Three things are Child below the age of 14 years are prohibited
prohibited- for employment three areas-
(1)Traffic in human beings (1)Factory
(2)Begar (2)Mines
(3)Other similar forms of forced labour (3)Any other hazardous employment
(Ejusdem generis would be applied.)
One exception No exception
A person can be compelled to work without In any circumstance, a child below the age of
payment for public purpose, without making 14 years cannot be compelled to work in any
discrimination on ground of religion, race, factory, mines or hazardous employment.
caste or class or any of them. According to Article 45(at the
commencement of the constitution) free and
compulsory education up to the age of 14
years. To attained school and engagement in
hazardous work was not possible at the same
time. To protect tender age, this Article was
passed.
36
ARTICLE 23 protects the individual not only against the state but also against the private
citizens.
S YEA LEADING CASES IMPORTANT POINTS
. RS
N
1 Traffic in human Traffic in human beings- It is commonly known as
beings slavery. It implies selling and purchasing of human
being. It also includes prostitution system. Suppression
of Immoral Traffic in Women and Girls Act, 1956 is
related to this topic.
1990 Vishal Jeet vs. UOI. The Supreme Court passed a direction to State to
eradicate child prostitution.
1997 Gaurav Jain vs. UOI Supreme Court passed several directions relating to the
rehabilitation of child of prostitute and establishment of
juvenile home of them.
2 Begar Compulsory work without payment.
1982, People‘s Union Justice P.N.Bhagwati, ―Begar means compulsory work
18 Democratic Reforms without any payment.‖
Sep Vs. UOI
3 Other similar forms Principle of ejusdem generis would be applied. It
of Forced Labour includes bonded labour.
1982, People‘s Union Justice P.N.Bhagwati,(1) Begar means compulsory
18 Democratic Reforms work without payment (2)Non-payment of minimum
Sep Vs. UOI (Asiad Case) wages comes in the ambit of forced labour.(3) ―The word
Justice, ‗force‘ ought to interpreted to include not only physical
P.N.Bhagwati, or legal force but also force arising from compulsion of
economic circumstances , which leave no choice of
alternative to a person in want and compels him to
provide labour or service even though the remuneration
received for it is less than the minimum
wages.(4)Articles 17,23 and 24 are also enforceable
against private persons. In this case it is the constitutional
obligation of the state to provide protections.(5)
Construction works are hazardous .So employment of
child below the age 14 years in construction works is
violation of Article of Article 24 .
1983 Sanjit Roy vs. State of Workers were engaged by Public Works Department,
20 Raj. Justice, Rajasthan and they were not being paid minimum wages.
Jan P.N.Bhagwati, The Court said that non-payment of minimum wages
comes under the category of forced labour. Justice
P.N.Bhagwati, ―The State cannot be permitted to take
advantage of the helpless condition of the affected
persons and extract labour or service from them on
payment of less than the minimum wage. No work of
utility and value can be allowed to be constructed on the
blood and sweat of persons who are reduced to a state
37
of helplessness on account of drought and scarcity

conditions.‖
1983 Bandhua Mukti Bonded Labour System (Abolition)Act,1976.J.P.N.
16De Morcha vs.UOI Bhagwati ―The Government and its officers must
c Justice,. welcome public interest litigation, because it would
P.N.Bhagwati, provide them an occasion to examine whether the poor
and the down-trodden are getting their social and
economic entitlements or whether they are continuing to
ermine victims of deception and exploitation at the hands
of strong and powerful sections of the community and
whether social and economic justice has become a
meaningful reality for them or it has remained merely a
teasing illusion and a promise of unreality, so that in case
a the complaint in the public interest litigation is found to
be true, they can in discharge of their constitutional
obligation root out exploitation and injustice and
ensure to the weaker sections their rights and
entitlements.‖ The Court has linked Article 23 & 21in
the context of bonded labourer…..to live with human
dignity free from exploitation.
1984 Neeraja Chaudhary vs. Justice P.N. Bhagwati, ―Whenever it is found that any
8May State Of M.P J. workman is forced to provide labour for no remuneration
P.N.Bhagwati, or nominal remuneration, the presumption would be that
he is a bonded labourer unless the employer or the State
Government is in apposition to prove otherwise by
rebutting such presumption.‖ The Court stressed on
released and rehabilitation of bonded labourer.
1998 State of Gujarat vs. All types of prisoners including prisoners punished for
24Se Hon‘ble High Court of rigorous imprisonment would be entitled to get minimum
p. Gujarat wages. Otherwise, it would be beggar.
4 Exception A person can be compelled to work without payment for
public purpose, without making discrimination on
ground of religion, race, caste or class or any of them.
1958 Dulal Samanta vs. Section 17 of the Police Act, 1861 is constitutional
(Cal. District Magistrate because it comes under Article 23(2). Section 17 talks
H.C) Howrah about deployment of private person in case of rioting or
unlawful assembly.
Seeks to protect hostile and discriminatory Seek to remove social and economic
State action disability
14,15,16,25,26,29 (2) 15(2) ,16(3),17,23, 24, 25(2)(b)
People‘s Union Democratic Reforms Vs. UOI J. P.N.Bhagwati, ―Articles 17, 23 and 24 are
(Asiad Case) also enforceable against private persons.‖
ARTICLE 24
S.N. YEARS LEADING CASES IMPORTANT POINTS
38
1982,18 People‘s Union Construction works are hazardous .So employment of

Sep Democratic Reforms child below the age 14 years in construction works is
Vs. UOI (Asiad Case) violation of Article of Article 24.
Justice,P.N.Bhagwati,
25 Labourers Working onSame- Construction works are hazardous .So
April, Salal Hydro-Project employment of child below the age 14 years in
1984 vs.State of J&K, construction works is violation of Article of Article
J.P.N.Bhagwati 24.
1996 M.C.Mehta vs. State Sivakashi Match Industries Case- Supreme Court
of Tamil Nadu passed a guidelines to eradicate child labour. It
directed to establish Child Labour Rehabilitation
Fund and asked the offending employer to pay for
each 20,000 Rs. to be deposited in the Fund. Adult
member of the child‘s family must be given a job in
place of child.
1997 Bandhua Mukti Carpet industries in U.P. ―It would be incumbent upon
Morcha vs.UOI the State to provide facilities and opportunities as
enjoined in Articles 39(e) &(f)of the constitution, and
to prevent exploitation of their childhood due to
indigence and vagary .Their employment –either
forced or voluntary – is occasioned due to economic
necessity ; exploitation of their childhood due to
poverty is detrimental to democracy and social
stability , unity and integrity of nation.‖
RIGHT TO FREEDOM OF RELIGION (ARTICLES 25 TO 28)

Karl Marx ―Religion is the opium of the people‖
Religion is derived from ‗Religare‘ which means ―To bind‖. History of Religion shows that
it plays both types of role –(1)Constructive Role, it controls the human behavior to commit the
wrongs and maintains peace and tranquility in society (2)Destructive Role – Several times it
becomes tools of exploitations of weaker sections . For example, in Hindu religion, by taking
help of religion untouchability (Brahmin. Kshatriya Vaishya and Shudra), Devdasi system Sati
system and killing of daughter for desire of son are few example of destructive form of religion.
During Islamic period, there are several examples of for the propagation of Islam. Jizya tax was
being imposed on non-Muslim. Sometimes religious matters are invoked for getting power for
example partition of India, Destruction of Babari Mosque and several rioting during elections.
Our constitutional framers decided to accept pluralistic society of India and maintained secular
feature of country. India has accepted positive secularism. Before 42nd Amendment, in preamble
secular word was absent even though preamble specifically dealt about religion. The word
'religion' does not occur in the Preamble to the constitution, but the Preamble does promise to
secure to its citizens "Liberty of thought, expression, belief faith and worship". The freedom of
conscience and the Right to profess, propagate and practise religion guaranteed in Article 25
flow out of the idea so expressed in Preamble.
39
After 42nd preamble itself declares that India is a secular country. In Kesavananda Bharati (CJI,
S.M. Sikri) (1973) and S.R. Bommai(1994) Supreme Court said that secular character of the
constitution is the basic foundation and structure of the constitution. In our constitution several
Articles prohibits discrimination on the basis of religion , namely Articles 15(1) (2) , 16(2) (5),
23(2), 29(2), 30(2) and 325.Articles 25 to 28 provide right to freedom of religion and Article
30(1) provides right of religious minorities to establish and administer educational institutions
and 30(2) the State shall not, in granting aid to educational institutions, discriminate on the basis
of religion. Right to freedom of religion (Articles 25 to 28) is conditional right. This right is
subject to following restrictions
(1) Public order (2) health (3) morality (4) subject to the other provisions of this part, ( for
example equality, abolition of untouchability, right to life, traffic in human being and forced
labour (5) economic activity (6) financial activity (7) political activity (8) secular activity (9)
social welfare reforms (10) opening of Hindu religious for all sections.
Article 25(All Article 26 (Religious Article 27(Person) Article 28

persons) Individual denominations) Freedom from Neither religious
Rights. Right of Group rights, payment of tax for instructions nor
(triple) PPP & C e.g.Sunni Shia , Jain, promotion of compulsion for
(Commissioner, Arya Samaj etc. particular religion attending religious
Hindu Religious S.P.Mittal vs. (example -Abolition instruction in
Endowment, Madras UOI,1982 of Jizya tax). educational
vs. Sri Lakshmindra institutions wholly
T.Swamiar-1954) maintained by State
funds.
Article 25 Rights Article 25 Restrictions
(1)Freedom of (1) Public order (2)
Article 25(1) Conscience, Article 25(1) Health (3) Morality
(2)Freedom of (4) Subject to the
Profession, other provisions of
(3)Freedom of this part, (for
Practice, example equality,
(4)Freedom of abolition of
Propagation untouchability, right
to life, traffic in
40
human being and

forced labour).
Explanation-1, Article 25(2)(a) (5) economic activity
Wearing and carrying (6) financial activity
of kirpans is a (7) political activity
profession of Sikh (8) secular activity
religion.
Explanation-, For Article 25(2)(b) (9) Social welfare &
the purpose of reforms
Article 25(2) (b), (10) Opening of
Hindus includes Hindu religious
Sikhs, Jain and institutions for all
Buddhist religion. sections (e.g.
S.C.,S.T.& Women)
Article 26 (a) To establish and Article 26 (1) Public order (2)
maintain institutions Health (3) Morality
for religious and
charitable purposes;
(b) to manage its own
affairs in matters of
religion (c) to own
and acquire movable
and immovable
property; (d) to
administer such
property in
accordance with law
Freedom from Promotion or
payment of religious maintenance of any
tax either for - particular religion or
religious
denomination
Article 28 Rights Article 28 Exceptions
Article 28(1) No religious Article 28(2) Such educational
Three types of instructions in institution which is
educational educational administered by State
institutions namely – institutions wholly but has been
(I) Wholly maintained out State established under any
maintained out of funds. endowment or trust
State funds, - Art.28 which requires that
(1). (II) established religious instructions
under any shall be imparted in
endowment or trust such educational
but administered by institution is
41
the State- Art.28(2) authorized to impart

(3) Recognized by religious instructions
the State or receiving
aid out of the State
funds- Art.28(3)
Article 28 An educational In case of minor,
institution recognized with consent of
by the State or guardian, such minor
receiving aid out of can be compelled to
the State funds. No attained religious
person shall be worship in such
compelled to attained educational
religious instruction institutions.
or worship in such
institution. For
example ,no Muslim
students or staffs can
be compelled to
Goddess Sarswati
worship organized in
Banaras Hindu
University.
S. Year LEADING CASES IMPORTANT POINT

N
1 MEANING OF RELIGION
Karl Marx Karl Marx in his contribution to the
Critique of Hegel's Philosophy of Law
described religion as the ‗Opium of the
people‘. He said further "Basically religion
is a very convenient sanctuary for
bourgeois thought to flee to in times of
stress.
Bertrand Russell, Bertrand Russell, ―Religion is based, I
think, primarily and mainly upon fear. It is
partly the terror of the unknown and partly,
as I have said, the wish to feel that you
have a kind of elder brother, who will
stand by you in all your troubles and
disputes.‖
1954 Commissioner, Hindu Religious Supreme Court held ―Religion is certainly
Endowment, Madras vs. Sri a matter of faith with individuals or
Lakshmindra T.Swamiar communities and it is not necessary
theistic. There are well known religions in
India like Budhism and Jainism which do
not believe in God or in any Intelligent
42
First Cause.‖ "Religious denomination"

means a religious sect or body having a
common faith and organisation and
designated by a distinctive name;
1982 S.P.Mittal vs. Union of India Constitution considers Religion as a matter

8Nov. of thought, expression, belief, faith and
worship, a matter involving the conscience
and a matter which may be professed,
practised and propagated by anyone and
which may even have some secular activity
associated with it. Religion is not to be
confined to the traditional, established,
well-known or popular religions like
Hinduism, Mahomedanism, Buddhism and
Christianity. There may be and, indeed,
there are, in this vast country, several
religions, less known or even unknown in
the remote corners or in the small pockets
of the land where they may be practised. A
religion may not be wide-spread. It may
have little following. It may not have even
a name, as indeed most tribal religions do
not have. Freedom of conscience is not to
be separated from the Right to profess,
practice and propagate religion. They go
together and together they form part of the
Right to Freedom of Religion.
1995 P.M.A Metropolitan vs. Moran ―Religion is the belief which binds spiritual
Mar Marthoma nature of men to super-natural being. It
includes worship, belief, faith, devotion
etc. and extends to rituals.‖
2 SECULARISM
1973 Kesavananda Bharati vs. State of Secularism is basic structure of the
24April Kerala Constitution. India is a secular State in
which there is no State religion.
1994 S.R.Bommai Vs. Union of India Justice Satwant ―religious tolerance and
11Marc equal treatment of all religious groups and
h protection of their life and property and of
the places of their worship are an essential
part of secularism enshrined in our
Constitution. We have accepted the said
goal not only because it is our historical
legacy and a need of our national unity and
integrity but also as a creed of universal
brotherhood and humanism.‖
43
04, Santosh Kumar And Others Etc., The teaching of Sanskrit language as an
Oct,199 vs. The Secretary, Ministry Of elective (optional) subject is not against the
4 Human concept of secularism.
24 Dr. M. Ismail Faruqui vs. UnionJustice J.S.Verma, ―It is clear from the
October Of India And Others constitutional scheme that it guarantees
, 1994 (Demolitition of Babari Masjid equality in the matter of religion to all
Case, 6 Dec,1992). individuals and groups irrespective of their
faith emphasizing that there is no religion
of the State itself. The Preamble of the
Constitution read in particular with
Articles 25 to 28 emphasizes this aspect
and indicates that it is in this manner the
concept of secularism embodied in the
constitutional scheme as a creed adopted
by the Indian people has to be understood
while examining the constitutional validity
of any legislation on the touchstone of the
Constitution. The concept of secularism is
one facet of the right to equality woven as
the central golden thread in the fabric
depicting the pattern of the scheme in our
Constitution.‖
Mahatma Gandhi Ji Sarva Dharm Sambhav
12 Ms. Aruna Roy vs. Union of India Supreme accepted meaning of secularism
Sep.20 as Sarva Dharm Sambhav. It means equal
02 treatment and respect of all religion .Court
said that learning of tenets of all religion
would co-operate in integrity of nation.
Value based educations help the nation.
3 SLAUGHTERING OF COWS
1958 Mohd. Hanif Quareshy vs. State Slaughter of cows on Bakrid day – This
of Bihar practice is not an essential part. So it can
be regulated under Article 25(2) (a).
1995 State of West Bengal vs. Slaughtering of cow on Bakrid day is not
Ashutosh Lahiri an essential part. So it can be regulated
under Article 25(2) (a).
4 ACQUISITION OF LAND
198323 Gulam Abbas Vs. State of U.P. Dispute regarding graveyard situated in
Sep. Varanasi between Sunni & Shia. Exercise
of religious rights is subject to maintenance
of public order .So shifting of graves for
the purpose of maintaining public order is
not irreligious or destructive of
fundamental rights.
24 Oct. Dr. M. Ismail Faruqui vs. Acquisition of Certain Area at Ayodhya
1994 Union Of India And Others Act, 1993. By passing this Act, Union
44
(Demolitition of Babari Masjid Government acquired the whole property

Case, 6 Dec, 1992). The surrounding the Mosque. The Supreme
protection under Articles 25 and Court held that this Act is constitutional.
26 of the Constitution is with S.C. held that the State can in the exercise
respect to religious practice which of sovereign power can acquire the places
forms an essential and integral of worship like temples, mosques,
part of the religion. A practice churches etc. if it is necessary for
may be a religious practice but maintenance of public order. Worship is an
not an essential and integral part essential part of religion, but it does not
of practice of that religion. The includes the right to worship at any place
latter is not protected by Article and every places. Public Order.
5 FORCE CONVERSION
1977 Rev. Stainislaus vs. State of M.P. Right to propagate does not includes right
to convert another person to one‘s own
religion by force. Right to propagate means
to transmit or spread one‘s religion by an
exposition of its tenets.
6 USE OF LOUDSPEAKER
Church of God (Full Gospel) in No person can be allowed to create noise
India vs. K.K.R.M.C. Welfare pollution or disturbs the peace of others.
Association Right to religion is subject to public order
health morality and subject to the others
provisions of Part III. (My view-Using of
loudspeaker is not essential part of religion
because loudspeaker is a new inventions.
At the time of origin of Hindu, Muslim,
Christian, Sikh religions etc. loudspeaker
was absent).
7 NON-BRAHMIN CAN BE
APPOINTED AS A PUJARI
1997 Bhuri Nath & Ors vs.State of J& Supreme Court held ―The hereditary right
10Jan K. as such is not an integral part of the
(It was not directly related to religious practice but a source to secure the
appointment of Non-Brahmin in services of a priest independent of it.
temple. But in case of acceptance Though performance of the ritual
of hereditary post in temple, non- ceremonies is an integral part of the
Brahmin would never get chance religion, the person who performs it or
to be Pujari of temple). The associates himself with performance of
Court made distinction between ritual ceremonies, is not. Therefore, when
‗Religious Services‘ & ‗Person the hereditary right to perform service in
who performs the service‘. the temple can be terminated or abolished
Jammu & Kashmir Mata Vashno by sovereign legislature, it can equally
Devi Shrine Act, 1988 is regulate the service conditions sequel to
constitutional. the abolition of the hereditary right of
succession in the office of an Archaka.‖
2002.3 N. Adithyan vs. Travancore Brahmin do not have monopoly over
45
Oct. Dewasom Board performing puja in a temple and said that a

non- Brahmin can be appointed as pujari if
he is properly trained and well versed with
rituals.
8 RELIGION AND WOMEN
Madras Devadasis (Prevention
of Dedication) Act, 9 October
1947
198523 Mohd. Ahmed Khan vs. Shah This case was mainly related maintenance.
April Bano Begum Personal law was interpreted in favour of
women and Cr.P.C. was applied. The
Constitution Bench laid down two
principles; firstly, the two (namely 125 of
Cr.P.C. and personal law ) operate in
different fields and, therefore, there is no
conflict and; secondly, even if there is a
conflict it should be set at rest by holding
that the statutory law will prevail over the
Personal Law of the parties, in cases where
they are in conflict.
200128 Daniel Latifi vs. UOI The provisions of the Muslim Women
Sep (Protection of Rights on Divorce) Act,1986
are not violating Articles 14,15,& 21.
200321 John Vallamatom vs.UOI The Christians were aggrieved by the
July discriminatory treatment meted out to
Section 118As per the impugned members of Christian community under
provision, a person having a section 118 the Indian Succession Act,
nephew or niece or nearer relative 1925 by which they were practically
cannot bequeath any property for prevented from bequeathing property for
religious or charitable use unless religious and charitable purposes. The
(1) the Will is executed not less harsh and rigorous procedure envisaged
than 12 months before the death under Section 118 of the Act in relation to
of the testator, (2) it is deposited testamentary disposition of property for
within six months from the date religious and charitable use does not apply
of execution in some place to members of Hindu, Mohammadan,
provided by law and (3) it Buddhist, Sikh or Jaina Community by
remains in deposit till the death of virtue of Section 58 of the Act. The
the testator. impugned provision is also violative of
Articles 25 and 26 of the Constitution
inasmuch as it is an essential and integral
part of Christian religious faith to give
property for religious and charitable
purposes. The teachings from the Holy
Book of Bible also encourage Christians to
practice charities to attain spiritual
salvation. Section 118 is unconstitutional
46
because it is inconsistent of Articles 14, 15,

25 and 26 of the Constitution.
201626 There was direct conflict between Articles
Dr.Noorjehan &Anr. State of
August, 14&15 and Articles 25&26. Women are
Maharashtra & Haji Ali Dargah
Bom.H. permitted to enter into the sanctum
Trust (Haji Ali Dargah Case.)
C. sanctorum at par with man. Prohibition of
women from entering into the sanctum
sanctorum of Haji Ali Dargah is violation
of Articles 14, 15 & 25 of the Constitution.
22Aug. Shayara Bano Anr.Vs. UOI & Constitutional Bench-Article 145(3) and
2017 Ors (5)-(1) Justice Joseph Kurian (2) J.
(Triple Talaq Case) – Triple U.U.Lalit,(3)Justice .R.F.Nariman
Talaq is unconstitutional. Minority-(1) CJI Khehar (2) Justice Abdul
Nazeer. Grounds o Decision-
(1) Right to conscience & profession,

practice and propagation are subject to
health, public order, morality and subject
to the other provisions of this part, for
example gender equality, abolition of
untouchability, right to life, traffic in
human being and forced labour. Triple
talaq is against gender equality enshrined
under Article 14. Article 15 also prohibits
discrimination on the ground of sex. Triple
talaq is arbitrary, while arbitrariness is
anti-thesis of equality.1
(2) Right to life includes right to dignified

life. Triple talaq is against this right. In the
Maneka Gandhi vs. Union of India,2
Supreme Court held that right to life
includes dignified life.
(3) Krishna Singh vs. Mathura Ahir (1981).

In Mathura Case, Article 25 involves a
separation between ‗religious activities‘ on
the one hand, and secular and social
activities on the other hands. Mohd. Saheb
never recognized irrevocable talaq and this
mode of talaq has not been mentioned in
holy Quaran. So triple talaq (irrevocable
talaq) is not essential part of religion. So it
1
Date of Judgment on 23 November, 1973, Supreme Court.
2
Date of Judgment on 25 January, 1978, Supreme Court.
47
is not protected under Article 25 of the

Constitution of India.
9 TWO CHILDREN NORMS

19974N Fazru vs. State of Haryana Section 175(1)(q) of the Haryana
ov. Panchayati Raj Act, 1994- If any person
has more than two children can not contest
P& H of election of local bodies. The Court held
High that it was constitutional on two grounds-
Court (1)Religious freedom is subject to health,
for the health of female.S.25(1) (2)It is for
social welfare and reforms. (3) Procreation
of children is not essential part of religion.
2003 Javed & Anr. Vs. State of Section 175(1)(q) and 177(1) of the
30 July Haryana & Ors The right to Haryana Panchayati Raj Act, 1994. The
contest an election for any office Muslim Law permits marrying four
in Panchayat is neither
women. The personal law nowhere
fundamental nor a common law mandates or dictates it as a duty to perform
right. It is the creature of a statute
four marriages. No religious scripture or
and is obviously subject to authority has been brought to our notice
qualifications and
which provides that marrying less than four
disqualifications enacted by
women or abstaining from procreating a
legislation. It may be permissible child from each and every wife in case of
for Muslims to enter into four permitted bigamy or polygamy would be
marriages with four women and irreligious or offensive to the dictates of
for anyone whether a Muslim or the religion. Assuming the practice of
belonging to any other
having more wives than one or procreating
community or religion to more children than one is a practice
procreate as many children as he followed by any community or group of
likes but no religion in India people the same can be regulated or
dictates or mandates as an prohibited by legislation in the interest of
obligation to enter into bigamy or public order, morality and health or by any
polygamy or to have children law providing for social welfare and
more than one. What is permitted reform which the impugned legislation
or not prohibited by a religion clearly does.
does not become a religious
practise or a positive tenet of a
religion. A practice does not
acquire the sanction of religion
simply because it is permitted.
CULTURAL AND EDUCATIONAL RIGHTS (ARTICLES 29-30)
DIFFERENCE BETWEEN ARTICLES 29 &30.
The Ahmedabad St. Xaviers College vs. State of Gujarat & Anr. 26 April, 1974
48
S.N. ARTICLE 29 (1) ARTICLE 30 (1)

1 Article 29 does not use the word Article 30 uses the word ‗All minorities‘.
‗Minority‘. It uses the word ‗Any section Here citizen word has not been used. So
of the citizens‘. Indian Citizenship is the citizenship is not the pre-condition.
pre-condition to get the right under this
Article.
2 ‗Any section of the citizens‘, includes Article 30 is available only to religious or
majority. Here majority and minority linguistic minorities. Here majority has no
both enjoy Article 29. Here minority right. Here minority group based on
group based on languages enjoys general languages enjoys special rights.
right. (Language is common for Articles D.A.V.College Case,1971, S.C. said ―A
29 & 30). Art. 29(1) is wider than reading of these two Articles together
Art.30(1). would lead us to conclude that a religious
or linguistic minority has a right to
establish and administer educational
institutions of its choice for effectively
conserving its distinctive language, script
or culture, which right however is subject
to the regulatory power of the State for
maintaining and facilitating the excellence
of its standards.‖
3 Three-Any section of citizens having Two-(i) Religion (ii) language. Here there
distinct (i) language,(ii) script or (iii) are two types of minority namely,(1)
culture have right to conserve it Religion based Minority, e.g. Muslim
according to own choice. There is no ,Sikh, Christian Jews etc. (2) Language
reference to religion in articles 29(1); based Minority e.g., Tamil, Telagu,Kannad
etc. In article 30 (1) the reference is only to
religion and language and there is no
reference to cultureand script.
EDUCATIONAL INSTITUTIONS EDUCATIONAL INSTITUTIONS

4 Here citizens may conserve their Here religious and linguistic minorities
language, script or culture according to have right to establish and administer
their own choice including by establishing educational institutions of their choice. (In
and administering educational institutions. Re Kerala Education Bill, 1958- Such
institutions need not to be confined only
religious & linguistic instructions. It may
also impart instructions regarding any
subjects, for example Law, Science,
History Hindi English, and Tamil etc.). ‗Of
their own choice‘- Sidhrajbhai vs. State
of Gujarat,1963 , a minority whether
based on religion or language has a right to
establish institutions of general secular
character not designed to converse their
49
language has a right to establish

institutions of a general secular character
not designed to conserve their language ,
etc., such as a college of general education
, or teacher training college etc..T.M.Pai
Foundation ,2002, ‗The use of the words
"of their choice" indicates that even
professional educational institutions would
be covered by Article 30(1).
Article 29 (2) No discrimination by Article 30 (2) No discrimination by State
State funded Educational Institutions in in aiding to minority educational
admission institutions.
5 Educational institutions which is The State shall not, in granting aid to
maintained by State or receiving aid out educational institutions, discriminate
of State funds shall not deny admission of against any educational institutions on the
any citizen on ground only of religion, ground that under the management of a
race, caste, language or any of them. minority, whether based on religion or
language.
DIFFERENCE BETWEEN ARTICLES 15(1) & 29(2).

S.N. ARTICLE 15(1) ARTICLE 29(2)
1 Religion , Race, Caste, Sex, Place of Religion , Race, Caste, language or any of
Birth or any of them them
2 It is a protection only against the State. It is a protection not only against the State
but also against anybody, who denies the
right conferred by this Article.
3 It is general protection. It means the It is specific protection. Protection from
State shall not discriminate in any matters denial of admission into state aided or
only on the grounds mentioned herein. maintained educational institutions.
DIFFERENCE BETWEEN ARTICLES 15(4) &29(2).

Champacam Dorairajan, A Brahmin was denied for admission. Supreme Court held that
communal reservation policy based on religion , caste and race and not for the backwardness of
Government for securing some seats in educational institutions was contrary to Article 29(2).
After this, by 1st Amendment Article 15(4) was aided, to overcome the decision of Champacam
case. By 15(4) , up to some extents, Article 29(2) was abridged.
50
S.N. YEA LEADING CASES IMPORTANT POINTS

R
1 MEANING OF MEANING OF MINORITY
MINORITY
1958 In RE Kerala Education 50% Population- Minority is a term which is not
22Ma Bill defined in the Constitution. It is easy to say that a
y NUMERICALLY minority community means a community which is
LESS THAN 50 PER numerically less than 50 per cent., but then the
CENT question is not fully answered, for part of the
question has yet to be answered, namely, 50 per cent
of what ? Is it 50 per cent of the entire population of
India or 50 per cent of the population of a State
forming a part of the Union? In this case The Court
said that the bill is going to be applied in whole
Kerala . So according to the whole population of the
Kerala, minority would be decided. 22% population
of Christian in Kerala is minority group in Kerala.
1971 D.A.V.College, Supreme Court rejected the contention that minority
5Ma Jullundur vs. State of should be decided according to the whole population
y Punjab,1971 ( Guru of country., The Court said, ―Minorities are to be
Nanak University Case) determined only in relation to the particular
legislation which is sought to be impugned, namely
that if it is the State legislature these minorities have
to be determined in relation to the population of the
State.‖ It was conceded by the State of Punjab, that
the Hindus of Punjab are a religious minority in the
State though they may not be so in relation to the
entire country. Arya Samajists in Punjab also
constitute a religious minority having their own
distinct language and script.
2002 T.M.A.Pai Foundation Chief Justice Kirpal, speaking for the majority took
31Oc State is unit to decide a clue from the provisions of the States
t. whether linguistic or Reorganisation Act and held that in view of India
religious group is having been divided into different linguistic States,
minority or not. carved out on the basis of the language of the
majority of persons of that region, it is the State,
and not the whole of India, that shall have to be
taken as the unit for determining a linguistic minority
vis-à- vis Article 30. Inasmuch as Article 30(1)
places on par religions and languages, he held that
the minority status, whether by reference to language
or by reference to religion, shall have to be
determined by treating the State as a unit.
2013 Dayanand S.C ―we have no hesitation in holding that in order
22M AngloVedic(DAV) to claim minority/linguistic status for an institution in
51
arch Trust and Management any State, the authorities must be satisfied firstly that
Society vs. State of the institution has been established by the persons
Maharashtra who are minority in such State; and, secondly, the
right of administration of the said minority
linguistic institution is also vested in those persons
who are minority in such State. The right conferred
by Article 30 of the Constitution cannot be
interpreted as if irrespective of the persons who
established the institution in the State for the benefit
of persons who are minority, any person, be it non-
minority in other place, can administer and run such
institution. In our considered opinion, therefore, the
order passed by the respondent-Authority and the
impugned order passed by the Division Bench need
no interference by this Court. We, therefore, do not
find any merit in this appeal which is accordingly
dismissed.
EDUCATION
1951 Champacam Dorairajan A Brahmin was denied for admission. Supreme
Artic vs. State of Madras Court held that communal reservation policy of
le 29 Government based on religion, caste and race and
not for the backwardness , for securing some seats in
educational institutions was contrary to Article 29(2).
1958 The State of Bombay v. Education has so far not been regarded as a trade or
R.M.D. business where profit is the motive. Even if there is
Chamarbaugwala any doubt about whether education is a profession or
not, it does appear that education will fall within the
meaning of the expression "occupation".
1993 Unni Krishnan v. State It may perhaps fall under the category of occupation
4Feb. of Andhra Pradesh provided no recognition is sought from the State or
affiliation from the University is asked on the basis
that it‘s a fundamental right....."
Minority Educational Minority Educational Institution
Institution
1958 In Re Kerala Education In this case Supreme Court said that State can
Bill impose certain restrictions for the protection and
security to the ill-paid teachers.
1963 Sidhrajbhai vs. State of Regulations made in the true interest of the
Gujarat efficiency of instruction, discipline , health,
sanitation , morality public order and the like may
be imposed.
1968 S. Azeez Basha vs. UOI Aligarh Muslim University was established under
Central Legislature under the Act of 1920.AMU is
not Central University
52
1974 St. Xaviers College vs. Governing body of the college is the part of its
State of Gujarat administration. The right to administer is the right to
‗conduct‘ and ‗manage‘ the affairs of the institution.
It also includes right to choose teachers of its choice.
But this right is subject to permissible regulatory
measures.
1983 S.P. Mittal vs. Union of Supreme court has stated ― In order to claim benefit
India of Article 30 (1), the community must show (a) that
it is a religious / linguistic minority, (b) that the
institution was established by it. Without satisfying
these two conditions it cannot claim the guaranteed
rights to administer it.
1986 Frank Anthony Public Supreme Court held that the statutory measure
School Employees regulatory terms & conditions of service of teachers
Association Vs. UOI and other employees of minority educational
institutions for maintaining educational standards
and excellence are not violating of Article 30 (1).
1988 Christian Medical Supreme Court held that provisions of Industrial
College Hospital Dispute Act were regulatory in nature and applies
Employees Union vs. equally to minority educational institutions. The right
Christian Medical under Article 30 (1) is subject to the regulatory
College Vellore power of state. Article 30(1) is not a charter of
Association maladministration. Social welfare legislation though
have some effects on Article 30 (1) do not constitute
an abridgement of such rights.
1988 All Bihar Christian Court held that statutory measures regulating
School Association vs. standard and excellent of minority educational
State of Bihar institutions are not violating of minority rights in
Article 30 (1).
1992 Stephan‘ s College Vs. (1) The college was not bound to follow the
University of Delhi university circulars as it would deprive the college of
their minority character.
(2) The right to select students for admission is an
important facet of administration. This power could
be regulated but regulation must be just fair and
reasonable.
(3) Minority aided educational institutions may
preserved 50% seats for their communities and
entitled to give them preference in admissions as it is
necessary to maintain the minority character.
2002 T.M.A. Pai foundation The Supreme Court propounded following
31oct v. State of Karnataka guidelines-
11Judges (1) For determining the minority the unit will be the
State and not the whole of India. Thus religious and
linguistic minorities which have been placed at par in
Article 30 have to be considered state wise.
53
(2) The use of the words ‗of their choice‘ includes

that even professional educational institutions would
be covered by article 30. (3) Article 30 (1) does not
confer absolute rights. It has to be read to article 29
(2) and other fundamental rights.(4) Minority
educational institutions become divisible into two
categories namely (i) Aided educational
institutions (ii) Unaided educational institutions.
The unaided institutions enjoy much greater
autonomy than aided institutions.
(5) Admission of students to unaided minority
educational institutions cannot be regulated by the
State or the concerned university, except for
providing the qualifications and minimum conditions
of eligibility in the interest of academic standards.
(6) Because of the interplay of article 29 (2) & 30
(1), an aided minority institutions is entitled to admit
students belonging to the minority group at the same
time it is also required to admit nonminority students
to a reasonable extent, where by the character of the
institutions is not annihilated, and, at the same time
the rights of the citizens engrafted under article 29
(2) are not subverted.
(7) Fees chargeable by unaided institutions cannot be
regulated but no capitation fee be charged. In aided
institutions fees can be so charged that there is no
profiteering. Reasonable surplus to meet cost of
expansion and augmentation of facilities does not
how ever amount to profiteering.
(8) All citizens have right to establish and administer
educational institutions under article 19 (1) (g) & 26
(a). The word occupation in article 19 (1) (g) covers
such institutions.
2003 Islamic Academy of S.C. directed setting of two committees in each

14 Education & Anr. v. States
Aug. State of Karnataka & (1) One Committee to give effect to the judgement in
Ors.5Judges T.M.A.Pai Foundation case and to approve the fee
structure charged by minority institutions (2) Second
Committee to see the test conducted by such
institutions.
2005 P.A. Inamdar Vs. State Reservation in UN-AIDED PRIVATE educational
12 of Maharashtra, institution (majority or minority) is violation of
7Judges Articles 19 (1)(g) and 30. Every institution is free to
devise its own fee structure but it must be fair and
reasonable. Capitation fee is not allowed.
54
2005 93rd Amendment,2005

In conseuence of TMA Notwithstanding anything in Article 15 or Article
Pai Foundation and PA 19(1)(g)-State can make special provision for
Inamdar case. 93rd admission in all types of educational institution
Amendment was done including private educational institutions whether
aided or unaided by the State. Exception- Minority
Educational institutions referred to Article 30(1).
There are two types of There are two types of Minority Educational
Private Educational institutions (1) Aided Minority Educational
institutions (1) Aided Institutions(2) Unaided Minority Educational
Private Educational Institutions.
Institutions(2) Unaided
Private Educational
Institutions
2008 Ashok Kumar Thakur Constitution Bench held in this case that clause (5)
Vs. UOI of Article 15 is valid and does not violate the ―basic
structure‖ of the Constitution so far as it relates to the
State-maintained institutions and aided educational
institutions. In the aforesaid case, however, the
Constitution Bench left open the question whether
clause (5) of Article 15 was constitutionally valid or
not so far as ―private unaided‖ educational
institutions are concerned, as such ―private unaided‖
educational institutions were not before the Court.
2010 Right toEducation
Act,2010
2012 Society of Un-Aided There are two types of Minority Educational
Private School of institutions (1) Aided Minority Educational
Rajasthan vs.UOI . Institutions (2) Unaided Minority Educational
Three Judges Institutions. The Court held that 2009 Act is
applicable to aided minority schools. It means only
unaided minority schools are exempted from Article
15(4).
2014 Pramati Educational & (1) Article 15(5) and 21A are constitutional.(2) The
06 Cultural ... vs. Union Of S.C. hold that the 2009 Act is not ultra vires Article
May India & Ors .Five 19(1)(g) of the Constitution. We, however, hold that
Judges the 2009 Act insofar as it applies to minority schools,
aided or unaided, covered under clause (1)
of Article 30 of the Constitution is ultra vires the
Constitution. (3) The Court said that the majority
judgment of this Court in Society for Unaided
Private Schools of Rajasthan v. Union of India &
Anr. insofar as it holds that the 2009 Act is
applicable to aided minority schools is not correct.
APPOINTMENT OF JUDGES OF SUPREME COURT & HIGH COURTS
55
INTRODUCTION – Indian Constitution is a written constitution whereby powers have been

divided between Central & States. Preamble of the Constitution declares that India is a
sovereign, socialist, secular, democratic, & republic country and it also secures for its citizens
justice, liberty, equality and fraternity. Fundamental rights have been mentioned in Part III. To
maintain federal structure of the Constitution of India & protect the pious principle enshrined in
the preamble, independent judiciary is sine qua non. So framers of the Constitution provided
constitutional status to unified judiciary namely, Supreme Court (Articles 124-147), High Courts
(Articles 214- 232) & Subordinate Courts (Articles 233- 237). They also provided several
safeguards so that executive and legislative body cannot unnecessary interfere in the matter of
judiciary. For examples, Articles 121& 211, 124,217 etc. clearly try to stop interference of other
bodies in the matters of judiciary.
HISTORY OF COURTS IN INDIA
By the Charter of 1726, Mayer‘s Courts at Calcutta, Bombay and Madras & expressly
introduced English Laws into these Presidencies. Regulating Act, 1773, was the first Act of
British Parliament whereby Presidencies of Madras and Bombay were brought under the control
of Calcutta Presidency and Supreme Court at Calcutta consisting of Chief Justice & three other
judges was established .Appeal from Supreme Court lay to the King-in Council in England.
In modern India, in 1862, three High Courts were established namely Calcutta HC, Bombay
High Court & Madras High Court. In 1911, three more High Courts were established In Patna
Lahore & Rangoon. Appeal against these High Courts were allowed to Judicial Committee of
Privy Council. Privy Council was situated in London. It was established on 1 st May, 1708.Main
function of this was to give advice to crown. One branch i.e. Judicial Committee of Privy
Council was hearing appeal from Courts situated in colonial countries.
The Government of India Act, 1935, established Federal Court. The Federal Court came into
being on 1 October 1937. It was consisted by three judges. Maurice Gwyer who had contributed
in drafting of The Government of India Act, 1935 was appointed as Chief Justice. The seat of the
court was the Chamber in Princes in the Parliament building in Delhi. Appeal from this was
preferred to Privy Council. It functioned until the establishment of the Supreme Court on 28
January 1950. FLOW CHARTS OF HISTORY OF COURTS IN INDIA
Serial No. Established of Court Year Statutes
Mayor‘s Court Calcutta, Bombay, 1726 Charter of 1726
Madras
Supreme Court Calcutta 1773 Regulation
Act,1773
High Courts Calcutta, Bombay, 1862 High Courts
Madras Act,1861
Federal Court Delhi 01 Oct,1937 The Government of
India Act, 1935
Supreme Court Delhi 28 Jan,1950 The Constitution of
India
APPOINTMENT & TRANSFER OF JUDGES OF SUPREME COURT AND HIGH
COURTS - This topic will be discussed with the help of following flow chart-
Constitution of India Articles- 124,217 & 222 Remarks
56
M.C. Setalvad,14th Report 1958 Criticism of seniority rule

Violation of seniority rule Hon‘ble J. Ajit Nath Ray Superseding of JJ Shalet
(1973)and Hon‘ble Justice Hegde & Grover in 1973
Mirza Hameedullah Beg (1977) and J. H. R. Khanna in
1977
Union of India vs. Sankal Date of Judgment, Supremacy of Executive
Chand Seth 19 September, 1977.
8th Law Commission headed by ―ON THE METHODS OF First time, it was
Hon‘ble Justice Hans Raj APPOINTMENT OF recommended that Chief
Khanna, 80th Report JUDGES‖ 1979. This Justice must consult with
Committee introduced the his two Colleague.
Collegium System.
S.P. Gupta vs. UOI Date of Judgment-30 Dec.1981 Supremacy of Executive
(Judges Transfer Case 1st )
Supreme Court Advocates On Date of Judgment-06 Oct.1993 Birthof Collegium
Records Association vs. UOI (Judges Transfer Case 2nd ) System (Justice J. S.
Verma) & supremacy of
judiciary
In Re Presidential Reference Date of Judgment 28 Oct.1998, Consultation means
Case (Judges Transfer Case 3rd ) plurality of opinion
99th Constitutional 2014. This Constitution Collegium system was
Amendment &NJAC Amendment was passed with substituted by NJAC
Act,2014 special majority and confirmed
by 16 State Legislature.
Supreme Court Advocates On Date of Judgment 16 Oct. 2015 Revival of Collegium
Records Association vs. UOI (Judges Transfer Case 4th ) system. Hon‘ble Mr.
Justice Jagdish Singh
Khehar & supremacy of
judiciary
According to Article 124, the President shall appoint the Judges of Supreme Court after
consultation with Judges of the Supreme Court and High Court as he thinks fit. According to
Article 217, Judges of High Court shall be appointed by the President after consultation with
Chief Justice of India, Chief Justice of High Court and Governor of the State. In case of Ram
Jawaya Kapur vs. State of Punjab,3 Supreme Court said that after reading Articles 53 and 74,
it becomes clear that the President is a formal or constitutional head while real head is Council
of Ministers. We have accepted Parliamentary form of Government. In Samsher Singh vs. State
of Punjab,4 Supreme Court said that wherever the Constitution requires satisfaction of President
or Governor as the case be for the example in Articles 123,213, 311(2) proviso (c), 317, 352(1),
356 and 360, in those cases, it is not the personal satisfaction of the President or Governor. It is
the satisfaction of the Council of Ministers in constitutional sense under the cabinet system of
3
AIR 1955 SC 549
4
AIR 1974 SC 2129
57
Government. So from these cases it becomes very clear that actual power is in the hand of the
Council of Ministers rather than President.
Mr. M.C.Setalvad5 has criticized the appointment of Judges on the basis of seniority and
suggested that Judges must be appointed on the basis of merit.
Keshavananda Bharati vs. State of Kerala6 was decided by 7:6 majority.
Majority Opinion – Hon‘ble JJ (1) Sikri, C.J.I. (2) Shelat (3) Hegde (4) Grover) (5) H.R.
Khanna (6) Jagmohan Reddy (7) Mukherjee. According to majority opinion, the Parliament can
amend any part of the Constitution subject to the basic structure of the Constitution. It was
directly restriction on the power of Parliament & indirectly on executive.
Minority Opinion – Hon‘ble JJ (1) A. N. Ray (2) Palekar (3) Beg (4) Mathew (5) Dwivedi
(6) Chandrachud. According to minority opinion, the power to amend is wide and unlimited.
There is no distinction between essential and unessential feature. Parliament can amend any part
of the Constitution by using power given under article 368.
Thereafter executive tried to control the Judiciary. So first time, rule of seniority in case of
appointment of CJI was broken. Hon‘ble Justice Ajit Nath Ray was appointed by superseding
three most senior judges namely Hon‘ble JJ Shelet, Hegde & Grover. All the three judges had
given judgement against Government in Kesavananda Bharati case. Term of Hon‘ble Justice Ajit
Nath Ray is 26 April, 1973-27 January1977. In Kesavananda Bharati vs. State of Kerala &
A.D.M.Jabalpur vs. Shivakant Shukla,7 Justice H.R. Khanna had given judgement against
Government.
In the case of State of Uttar Pradesh vs. Raj Narain,8 Justice Jagmohan Lal Sinha convicted
the then Prime Minister Mrs. Indira Gandhi for electoral malpractices and debarred her from
holding any elected post. This lead to the imposition of Emergency in India on June 25, 1975. In
case of Indira Nehru Gandhi vs. Raj Narayan,9 Supreme Court by 4:1(Minority opinion of H.R.
Khanna) majority upheld the validity of election of Mrs. Indira Gandhi but held that Article
329A (4) is unconstitutional which was excluding the power of judicial review. The Court said
that democracy which implies free and fair elections, rule of law and Judicial review is basic
structure of the Constitution. In this case Court made balanced between interest of Mrs. Indira
Gandhi and public. It did not totally surrender in favour of Mrs. Indira Gandhi.
Hon‘ble Justice Mirza Hameedullah Beg (28 January 1977-21 Feb 1978) was appointed by
superseding Justice H.R. Khanna on 28 January 1977. In Kesavananda Bharati vs. State of
Kerala, & A. D. M. Jabalpur vs. Shukla, Justice H.R. Khanna had given judgement against
5
Chairperson of First Law Commission of independent India. This Commission was established
in 1955. This Commission submitted its 14th Report on ‗Reform of Judicial Administration‖ on
16Sep.1958.
6
Date of Judgment- On 24 April, 1973,
7
AIR 1976 SC 1207.
8
Date of Judgment- 12 June, 1975, Allahabad High Court ,
9
Date of Judgement 07/11/1975, Supreme Court. There are two cases of the same name decided
in 1975. Another case is Indira Nehru Gandhi vs. Raj Narain which was decided by Justice
Krishna Aiyer on 24/06/1975.It was decided by single bench.
58
Government .This was emergency periods (25 June 1975 – 21 March 1977) . During the
emergency period Hon‘ble Fakhruddin Ali Ahemad was president. It was the last time when
seniority rule was overruled. After Justice M.H.Beg, Justice Yeshwant Vishnu Chandrachud
(1977-1985) was appointed who was most senior judge. In case of A. D. M. Jabalpur vs.
Shukla, Justice Yeshwant Vishnu Chandrachud held that during emergency there was no
fundamental rights and this case was in favour of Government.
UNION OF INDIA vs. SANKAL CHAND HIMATLAL SHETH AND ANOTHER10.
Meaning of CONSULTATION under Articles 124(2), 217(1) & 222(1) was disputed. In this
Justice Sankal Chand Seth challenged his transfer from Gujarat High Court to Andhra Pradesh
High Court. Consultation means full and effective that is active participation of all but it does not
mean concurrence. It is open to the President to arrive at a proper decision of the question. It
means President is not bound by the opinion of Judges of the Court. In this way supremacy of
executive was established.
S.P.GUPTA VS. UNION OF INDIA11. In this case meaning of consultation was again
disputed. Supreme Court accepted the meaning of consultation which was given in Sankal
Chand Seth Case. Supreme Court said that there is only one ground i.e. mala fide & irrelevant
consideration, when decision of government can be challenged. Justice P. N. Bhagwati
suggested for appointment of Judicial Committee. Supremacy of Executive was again
established.
SUPREME COURT ADVOCATE ON RECORD ASSOCIATION & ANOTHER VS.
UNION OF INDIA.12
Meaning of ―…after consultation with‖ as used in Articles 124(2), 217(1) & 222(1). Here
consultation means participatory consultative process. Consultation does not mean
concurrence. It was used by judiciary for his favour President is bound by opinion of The SC.
Collegium System was introduced by Justice J.S. Verma & Supremacy of Judiciary was
established.
The President appoints by warrant under his hand and seal Judges of the Supreme Court (Articles
124(2)) and Judges of the High Courts (Article217(1).
Supreme Court said that Judges of Supreme Court & High Courts can be appointed By President
according to opinion of collegium system. In case of appointment of Judges of Supreme Court,
collegium must be consisted of Chief Justice of India and Two senior most judges of Supreme
Court (1CJI+ 2 Judges of SC= 3 Judges). Initiation of proposal for appointment of judges of SC
must be by CJI. Only for strong reasons and in exceptional cases opinion of CJI may rejected.
10
Date of Judgment, 19 September, 1977. http://supremecourtofindia.nic.in/judgments visited on
16/01/2018.
11
AIR 1982 SC 149. Date of Judgment-30 Dec.1981.
http://supremecourtofindia.nic.in/judgments visited on 16/01/2018.
12
Date of Judgment-06 Oct.1993. http://supremecourtofindia.nic.in/judgments visited on
16/01/2018.
59
In case of Judges of High Court, collegium must be consisted of Chief Justice of India and Two
senior most judges of S.C (1+ 2= 3). Initiation of proposal for appointment of judges of HC must
be by Chief Justice of the High Court.
JUSTIFICATION OF COLLEGIUM SYSTEM- The Supreme Court has observed, ―The
indication is that in the choice of candidate suitable for appointment, the opinion of the Chief
Justice of India should have the greatest weight, the selection should be made as a result of a
participatory consultative process in which the executive should have power to act as a mere
check on the exercise of power by CJI, to achieve the constitutional purpose. Thus, the executive
element in the appointment process is reduced to the minimum and any political influence is
eliminated. It was for this reason that the word consultation instead of concurrence was used, but
that was done merely to indicate that absolute discretion was not given even to CJI. As an
individual‖. The Court further clarified that CJI opinion formed with colleague have primacy.
Special Reference Case 1 of 199813 (IN RE: APPOINTMENT & TRANSFER OF JUDGES).
Reason of dispute was decision of Chief Justice M. M. Punchhi in case of appointment of
Judges. According to Hon‘ble Chief Justice, Madan Mohan Punchhi ( 18/01/1998 –
09/10/1998) sole opinion of CJI is binding. The President Mr. K.R.Narayanan by using the
power given under Article 143, refer the matter to Supreme Court for clarification on
23/07/1998. Consultation with plurality of judges. Sole individual opinion is not consultation.
The Court advised that sole opinion of CJI without following consultation process is not binding
on Government.
Appointment of judges of Supreme Court & Transfer of judges of HCs - According to the
Court, collegium must be constituted of Chief Justice & Four senior most Judges of SC, (1 +4
=5) in case of appointment of Judges of Supreme Court.
Appointment of judges of HC- In case of appointment of Judges of High Courts, Collegium is
constituted at two stages. First stage is collegium at High Court level and Supreme Court level.
At both level, three judges constitute collegium. At High Court level, Chief Justice and two
senior Judges of High Court (1 +2= 3), and Supreme Court level, CJI and two other senior most
Judges(1 +2= 3).
99TH CONSTITUTIONAL AMENDMENT & NATIONAL JUDICIAL APPOINTMENT
COMMISSION (NJAC) ACT, 2014. National Judicial Appointment Commission consisted of
Six(6) members- There are three categories of its Members-(1) Judiciary , CJI& two senior most
judges. (2) Executive, one- Union Law Minister. (3) Expert- Two eminent members selected by
Committee consisted of CJI, Prime M and Leader of Opposition. According to Section 6 of
NJAC Act, 2014- The Commission shall not recommend a person for appointment under this
section if any two members of the Commission do not agree for such recommendation. It is also
called Veto Power.
SUPREME COURT ADVOCATE ON RECORD ASSOCIATION & ANOTHER VS.
UNION OF INDIA14, In this case 99th Constitutional Amendment & NJAC Act, 2014 were
13
Date of Judgment 28 Oct.1998, http://supremecourtofindia.nic.in/judgments visited on
16/01/2018.
14
Date of Judgment 16 Oct. 2015, http://supremecourtofindia.nic.in/judgments visited on
16/01/2018.
60
declared unconstitutional. Reasons -Independence of Judiciary is basic structure of the

Constitution. By this Amendment & Act, executive has taken whole power. In the appointing of
eminent person, Executive may appoint even by ignoring of view of CJI. In the Commission, any
two members may use veto.
MEMORANDUM SHOWING THE PROCEDURE FOR APPOINTMENT OF JUDGES
OF SUPREME COURT & HIGH COURTS
APPOINTMENT OF CHIEF JUSTICE OF INDIA – Appointment on the basis of seniority
unless he is unfit. The Union Law Minister seeks recommendation of outgoing CJI for the
appointment of next CJI. After recommendation of outgoing CJI, Law Minister will put up the
recommendation to Prime Minister who will advice the President in the matter of appointment.
As soon as warrant is signed by the President, Secretary will announce the appointment and issue
the necessary notification in the Gazette of India.
APPOINTMENT OF OTHER JUDGES OF SUPREME COURT- When a vacancy is
expected to arise, CJI will initiate proposal and send its recommendation to Union Law Minister
to fill the Vacancy. Collegium -1 (CJI)+4 (Senior most puisne judges of SC) = 5 Opinion of
CJI should be formed with the collegium of four senior most judges of SC. One of them must be
from that High Court from where a judge of HC is to be selected. After recommendation of
outgoing CJI, Law Minister will put up the recommendation to Prime Minister who will advice
the President in the matter of appointment. As soon as warrant is signed by the President,
Secretary will announce the appointment and issue the necessary notification in the Gazette of
India. .After this medical examination of Judges is conducted.
Appointment of CJ H C – Process for appointment of Chief Justice of HC shall be initiated by
CJI. CJI will recommend after consultation with two senior most judge of S C. Then CJI will
send proposal of appointment to Union Law Minister. After receiving the recommendation, The
Law Minister will obtain the view of the concerned State Government. After this Law Minister,
will submit the proposal to Prime Minister who will then advise to President as to appointment.
Appointment of other Judges of H.C. The proposal for appointment shall be initiated by Chief
Justice of the concerned H C. Here collegium is consisted at two places, First – at the High
Court level when name is recommended to Governor. Second – When Supreme Court consider
the name before recommending to the Union Law Minister.
There are Seven Stages of appointment of Judges of High Court –
First stage - 1 (CJ of HC) +2 (two senior most judges of HC = 3. Second stage -CJ of HC will
send recommendation to the concerned State Government & Governor .Third stage- Governor
after the advice of State Council of Ministers, along with own comment, will send to Union Law
Minister. Fourth Stage- Union Law Minister, after considering the proposal will send the
proposal with all consideration to CJI . Fifth stage 1 (CJI) +2( two senior most judges of SC) =
3. CJI after consultation with two senior most judge of SC. Will send the proposal to Union Law
Minister. Six Stage- Union Law Minister will refer to Prime Minister who will advise the
President as to appointment. Seventh stage- President shall sign on warrant. Selected person‘s
name would be published in Gazette.
Correspondence between Chief Justice of High Court & Chief Minister, & Chief Minister &
Governor shall be in writing.
61
FLOW CHART OF APPOINTMENT OF JUDGES & APPOINTMENT & TRANSFER

OF JUDGES OF HIGH COURTS
Statute & Leading Supreme Court High Court
Cases
Constitution of (1) President (2) Judges of (1)President (2) Chief Justice of
India,1950 Supreme Court (3) Judges of High Supreme Court (3) Chief justice of
Court , Article 124 High Court (4) Governor of the
State. Article 217.
In Reality President. After observing Governor- After observing Article
Articles 52,53,74 and Ram Jawaya 163 and Ram Jawaya Kapur Vs
Kapur Vs State of Punjab, State of Punjab, Shamsher Singh vs.
Shamsher Singh vs. State of State of Punjab & S. P . Gupta case,
Punjab & S. P . Gupta case, we we can say that real powers of the
can say that real powers of the Governor are vested in Council of
President are vested in Council of Ministers. So indirectly power of
Ministers. So indirectly power of Governor is used by Council of
President is used by Council of ministers.
ministers. In India, there is IN India, there is Parliamentary form
Parliamentary form of of Government.
Government.
M.C. Setalvad First Law Commission criticized First Law Commission criticized
(Chairman of First appointment of Judges on basis of appointment of Judges on basis of
Law Commission, seniority, and recommended for seniority, and recommended for
1955-1958, Report, appointment on the basis of merit. appointment on the basis of merit.
th
14 Reform of
Judicial
Administration, 1958.
His Holiness After the judgement of REMARKS- Misuse of Power by
Kesavananda Kesavanand Bharati Case, first executive
Bharati time seniority rule was overruled
Sripadagalvaru and & Hon‘ble Justice Ajit Nath Ray
Ors. v. State of was appointed by superseding
Kerala and Anr. three most senior judges namely
(24th April, 1973). Hon‘ble JJ Shelet, Hegde &
Grover.
Hon‘ble Justice Ajit Nath Ray 26
April, 1973-27 January1977 .
Judgement of REMARKS- Misuse of Power by
Kesavananda Bharati Hon‘ble J Mirza Hameedullah executive
and A.D.M.Jabalpur Beg(28 January 1977-21 Feb
vs Shukla,1976 & The 1978) was appointed by
June 12, 1975 verdict superseding Justice H.R. Khanna,
of the Allahabad High 28 January 1977.
Court convicting then
Prime Minister Mrs. It was the last time when seniority
Indira Gandhi of rule was overruled. After Justice
62
electoral malpractices M.H.Beg , Justice Yesawant

and debarring her Wishnu Chandrachud(1977-1985)
from holding any was appointed who was most
elected post & senior judge.
imposition of
Emergency in India on
June 25, 1975
Union Of India vs Consultation means full and REMARKS- Supremacy of
Sankal Chand effective that is active Executive was established
Himatlal Sheth And participation of all but it does not
Another on 19 mean concurrence. it is open to the
September, 1977. President to arrive at a proper
Meaning of decision of the question. It means
CONSULTATION President is not bound by the
Articles 124(2), opinion of other.
217(1) & 222(1)
S.P.Gupta vs. Union Do. S.C. said that there is only one REMARKS- Supremacy of
of India,1982 ground i.e. mala fide & irrelevant Executive was established.
consideration, when decision of
government can be challenged.
Justice P. N. Bhagwati suggested
for appointment of judicial
committee.
Supreme Court 1+ 2= 3 1 +2= 3
Advocate on Record (Chief Justice of India + Two {Chief Justice + Two senior most
Association & senior most judges of S.C.). Judges of SC}. Initiation of proposal
Another vs. Union of Initiation of proposal for for appointment of judges of HC
India 06/10/1993. appointment of judges of SC must must be by CJ of the High Court.
Meaning of ―…after be by CJI. REMARKS- Collegium System
consultation with ‖. Only for strong reasons and in was introduced by Justice J.S.
Here consultation exceptional cases opinion of CJI Verma & Supremacy of Judiciary
means participatory may rejected. was established.
consultative process .
President is bound by
opinion of The SC.
Articles 124(2),
217(1) & 222(1)
In Re Presidential 1 +4 =5 1 +2= 3{Chief Justice + Two senior
Reference Case,1999 {Chief Justice + Four senior most
most Judges of SC}
Judges of SC} (Appointment of Judges of High
( Appointment of Judges of
Court). REMARKS- Consultation
Supreme Court, To transfer Chief
with plurality of judges. Sole
Justice or puisne judge of HC .
individual opinion is not
consultation.
99th Constitutional NJA Commission- Six(6) REMARKS- Section 6 of NJAC
Amendment & members- Three Categories-(1) Act, 2014- The Commission shall
63
NJAC Act, 2014 Judiciary , CJI& two senior most not recommend a person for
judges.(2) Executive, one- Union appointment u/this section if any
Law Minister.(3) Expert- Two two members of the Commission do
eminent members selected by not agree for such recommendation.
Committee consisted of CJI , VETO POWER.
Prime M and Leader of Opposition
Supreme Court Independence of Judiciary is basic REMARKS-99th Constitutional
Advocate on Record structure of the Const. By this Amendment & NJAC Act, 2014
Association & Amendment &Act executive has were declared unconstitutional.
Another vs. Union of taken whole power. In the
India, 16 Oct. 2015 appointing of eminent person,
Executive may appoint even by
ignoring of view of CJI. In
Commission, ant two members
may use veto.
Memorandum Appointment of CJI – Appointment of CJ H C – Process
showing the Appointment on the basis of for appointment of Chief Justice of
procedure for seniority unless he is unfit. The HC shall be initiated by CJI. CJI will
Appointment of Union Law Minister seeks recommend after consultation with
judges of SC& HCs recommendation of outgoing CJI two senior most judge of S C. Then
for the appointment of next CJI. CJI will send proposal of
After recommendation of outgoing appointment to Union Law Minister.
CJI, Law Minister will put up the After receiving the recommendation,
recommendation to Prime Minister The Law Minister will obtain the
who will advice the President in view of the concerned State
the matter of appointment. As Government. After this Law
soon as warrant is signed by the Minister, will submit the proposal to
President, Secretary will announce Prime Minister who will then advise
REMARKS the appointment and issue the to President as to appointment.
Collegium necessary notification in the
Supreme Court Gazette of India. Appointment of other Judges of
1+4= 5 Appointment of other Judges of H.C. The proposal for appointment
1(CJI+4 (Four Senior S.C. When a vacancy is expected shall be initiated by Chief Justice of
most judges of SC)= 5 to arise, CJI will initiate proposal the concerned H C.
High Court- and send its recommendation to
1+2 =3 Union Law Minister to fill the Seven Stage-
(i) 1(Chief Justice of Vacancy. Collegium -1 (CJI)+4 (1) 1 (CJ of HC) +2 (two senior
HC) +2( Two senior (Senior most puisne judges of SC) most judges of HC = 3
most Judges of H C) = 5 Opinion of CJI should be (2) CJ of HC will send
=3, formed with the collegium of four recommendation to the concerned
(ii)1 (CJI +Two senior most judges of SC. One of state government & Governor.
senior most judges of them must be from that High Third stage- Governor after the
SC) 2=3 Court from where a judge of HC is advise of State Council of Ministers,
to be selected. After along with own comment, will send
recommendation of outgoing CJI, to Union Law Minister. Fourth
Law Minister will put up the Stage- Union Law Minister , after
64
recommendation to Prime Minister considering the proposal will send

who will advice the President in the proposal with all consideration
the matter of appointment. As to CJI . Fifth stage 1 (CJI) +2( two
soon as warrant is signed by the senior most judges of SC) = 3. CJI
President, Secretary will announce after consultation with two senior
the appointment and issue the most judge of SC. Will send the
necessary notification in the proposal to Union Law Minister Six
Gazette of India. .After this Stage- Union Law Minister will
medical examination of Judges is refer to Prime Minister who will
conducted. advise the President as to
appointment. Seventh stage-
President shall sign on warrant.
Selected person‘s name would be
published I Gazette.
Correspondence between C J of
High Court & Chief Minister, &
Chief Minister & Governor shall be
in writing.
DIFFERENCE BETWEEN SUPREME COURT & HIGH COURT

Grounds of Difference SUPREME COURT HIGH COURTS
between SC & HCs
Qualifications Art.124 (3)-(a) 5yrs Article 217(2)- (a) 10 yrs held
Judge of HC, or (b) Judicial Office,(b) 10yrs
10yrs, Advocate of HC or Advocate of H C
(c) Distinguished Jurist.
Appointment 1 +4 =5 (i) 1+2=3, Collegium at High
Court level.(ii) 1 +2= 3
Collegium at Supreme Court
level, & Participation of
Governor ( State Gov.)
Appointment of acting Chief Article-126 Article-223
Justice
Appointment of Additional & No Provision/ No system Article-224 (temporary
Acting judge increasement of workload )
Appointment of ad hoc judges Article 127( for quorum) No Provision/ No system
Attendance of retired judges Article 128 Article-224A
Writ Art.32, only for Art.226, for enforcement of
enforcement of Fundamental Rights &for any
Fundamental Rights other purposes
Appointment By President By President
Oath Art.124(6)President Art.219, Governor
65
ROLE OF SUPREME COURT IN DEVELOPMENT OF NATION

INTRODUCTION- There are three pillar of Government, namely, Legislative, Executive and
Judiciary. Supreme Court is the successor15 of the Federal Court of India.16 Supreme Court was
inaugurated on 28 January, 1950. Part V (Chapter IV, Articles 124 -147) discuss about Supreme
Court of India. These provisions can be amended with special majority ratified by the Legislature
not less than one-half of the States.17 For example 99th Constitutional Amendment which was
ratified by the Legislatures of sixteen States. After its inauguration on January 28, 1950, the
Supreme Court commenced its sittings in a part of the Parliament House. The Court moved into
the present building in 1958.18 According to Article 124(1), there shall be a Supreme Court of
India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger
number, of not more than seven other Judges. Parliament, by using this power, enacted Supreme
Court (Number of Judges) Act, 1956 whereby number of Judges was increased first time in
1956. Parliament increased the number of Judges from 8 in 1950 to 11 in 1956, 14 in 1960, 18 in
1978 and 26 in 1986 and 31 in 2009.19
NUMBER OF JUDGES OF SUPREME COURT
Serial Number Number of Judges Year
1 1950 1+7= 8
2 1956 1+10=11
3 1960 1+13= 14
4 1978 1+17= 18
5 1986 1+25=26
6 2009 1+30 = 31
Till 1993, there was no vital role of the judges of the Supreme Court in the case of appointment
of the judges of the Supreme Court. President, and in reality Council of Ministers with the Prime
Minister at the head, may appoint judges of the Supreme Court with consultation of Judges of the
Supreme Court and of High Courts as the President thinks fit for the purpose of appointment. In
case of Supreme Court Advocates on Records Association vs. Union of India,20 Hon‘ble
Justice Jagdish Sharan Verma introduced the role of collegium system in case of appointment of
judges. It was propounded that in case of appointment of the Judges of Supreme Court, President
would be bound by the decision of Collegium, unless there is strong reason. In this case, it was
also propounded that collegium had been constituted with Chief Justice of India and two other
15
Article 135, Constitution of India, 1950.
16
Terms of Federal Court 1937-1950
17
The Constitution (Ninety-Ninth Amendment) Act, 2014.
18
Http://Supremecourtofindia.Nic.In/History, Visited On 17/01/2018.
19
. Supreme Court (Number Of Judges) Act, 1956 Was Amended By Supreme Court (Number Of
Judges) Amendment Act, 2008. This Amendment Received The Assent Of The President Of
India On 5th February, 2009.
20
Date of Judgement -06 Oct.1993 (Judges Transfer Case 2nd), Supreme Court.
66
senior most judges of the Supreme Court. In case of In Re Presidential Reference, 199821 case
Hon‘ble Supreme Court held that collegium would be constituted by Chief Justice of India and
four other senior most judges of the Supreme Court. It was held that Consultation means
plurality of opinion. By 99th Constitution Amendment, role of collegium was abolished and
National judicial Appointment Commission was introduced. But in case of Supreme Court
Advocates on Records Association vs. Union of India,22 collegium system was revived by
Hon‘ble Mr. Justice Jagdish Singh Khehar & supremacy of judiciary was again established.
Judges of the Supreme Court may be removed only according to the Article 124(4) & (5) of the
Constitution of India. Judges may be removed by the President on the ground of proved
misbehaviour or incapacity. President may remove Judges of the Supreme Court only when
resolution for removal of Judges is passed Parliament. Such resolution must me passed with
special majority by both Houses in the same Session. Such resolution may not move unless in
case of Rajya Sabha, 50 Members and in case of Lok Sabha, 100 Members of the House sign and
present before Chairperson of Rajya Sabha or Speaker of Lok Sabha as the case may be.23
Role of Supreme Court may be divided into two parts, namely, (1) Regressive view & (2)
Progressive view. I am not denying that regressive view of the Supreme Court might be right at
that time. With the help of the judgment of the Supreme Court, I will discuss the views of the
Supreme Court.
(1) REGRESSIVE VIEW OF THE SUPREME COURT- There are following cases on the
basis of which it can be said that Supreme Court had adopted regressive view-
(1)A. K. GOPALAN VS. STATE OF MADRAS.24 In this case, the Court interpreted Article
21 in very narrow sense. There are following important point on the basis of which, we can say
that Supreme Court accepted regressive views-
(1) In the initial stage, the Court interpreted life and liberty in a very narrow sense. (2) Articles
19 and 21 are mutually exclusive. Its means both articles are not connected to each other. (3)
Article 21 protects only from executive actions. (4) Law means enacted piece of legislation. Any
types of legislation whether just or unjust is law. Approach of Analytical School was applied.
There is no scope for jus naturale. (5) Law and procedure established by law cannot be
challenged. (6) Personal Liberty‘ in Article 21 means nothing more than the liberty of physical
body, that is freedom from arrest and detention without authority of law.(7) Article 21 deals
deprivation (total loss) of liberty while Article 19 gives protection against unreasonable
restrictions (which is partial control) on the right to movement. (8) Article 19 can be invoked
only when a law directly attempted to control the freedoms mentioned therein.
(2) M.P. SHARMA V. SATISH CHANDRA25 and KHARAK SINGH V. STATE OF
U.P.26 rendered respectively by a Bench of eight and six judges, which, it said, had conclusively
held that there existed no fundamental right to privacy.
21
Date of Judgment 28 Oct.1998, (Judges Transfer Case 3rd), Supreme Court.
22
Date Of Judgment 16 Oct. 2015 (Judges Transfer Case 4th), Supreme Court.
23
Section 3 of Judges (Inquiry) Act, 1968.
24
Date of Judgment 19/05/1950, Supreme Court.
25
Date of Judgment 15 March 1954, Supreme Court.
67
(3) RUSTOM CAVASJEE COOPER VS. UNION OF INDIA27 (Bank Nationalization

Case)-
It is declared that the Banking Companies (Acquisition and Transfer of Undertakings) Act 1969
is invalid and the action taken or deemed to be, taken in exercise of the powers under the Act is
declared unauthorised.
The Constitution (Twenty-fifth Amendment) Act, 1971, curtailed the right to property, and
permitted the acquisition of private property by the government for public use, on the payment of
compensation which would be determined by the Parliament and not the courts.Article 31 (2) -
Compensation word was substituted by word ‗amount‘. Article 39-C was inserted and it was
provided that Article 39 (b) and (c) cannot be challenged on the ground of Articles 14, 19 and 31.
(4) H. H. MAHARAJADHIRAJA MADHAV RAO SCINDIA VS. UNION OF INDIA28

(Privy Purse Case)
Political Reason- In the 1967 election, several rulers had joined the Swatantra Party headed by
C. Rajagopalachari, and many of them defeated Congress candidates. Indira Gandhi was,
therefore, determined to abolish the Privy Purses. On June 25, 1967, the All India Congress
passed a resolution to abolish them. The Constitution (Twenty-fourth Amendment) Bill, 1970
was introduced and passed in the Lok Sabha by a majority of 332:154 votes, but it was defeated
in the Rajya Sabha by 149:75. Having failed in Parliament, Indira Gandhi asked President V.V.
Giri to derecognize all the rulers. This derecognition was successfully challenged by N.A.
Palkhivala before the Supreme Court in the historic Privy Purses case. Indira Gandhi‘s landslide
victory in the 1971 election enabled her to amend the Constitution that abolished the Privy
Purses and extinguished all rights and privileges of the rulers. In Parliament, Indira Gandhi stated
that the concept of Privy Purses and special privileges were incompatible with an ―egalitarian
social order.‖
Whatever political reasons might have been, abolition of Privy Purse was necessary for the
development of nation and establishment of equality. Supreme Court delivered its Judgment
against abolition of Privy Purse.
In this case the Court held that Privy Purse is a property so it cannot be taken away merely by
Presidential order. By 26th Amendment(1971) Articles 291 and 362 were omitted and Article
363 was inserted which abolished the right of Privy Purse and all rights, liabilities and
obligations in respect of Privy Purse.
(5) ADDITIONAL DISTRICT MAGISTRATE, JABALPUR VS. S. S. SHUKLA ETC.29

(Habeaus Corpus case) - Justice Yeshwant Vishnu Chandrachud held that during emergency
there was no fundamental rights and this case was in favour of Government.
26
Date of Judgment 18Dec.1962, Supreme Court.
27
Date of Judgment 10 February, 1970, Supreme Court.
28
Date of Judgment 15 December, 1970, Supreme Court
29
Date of Judgment 28/04/1976, Supreme Court. Bench: A.N. Ray, (CJI), Hans Raj Khanna, M.
Hameedullah Beg, Y.V., Chandrachud, P.N.Bhagwati,
68
(6) TUKARAM VS. STATE OF MAHARASHTRA30 (Mathura Rape case)

Mathura was a girl who was raped in Police Station by two policemen. Accused was acquitted by
S.C. on the ground that there was implied consent. Implied consent was drawn on the basis that
there was no injury on the body of victim. This judgment was vehemently criticized by public
and jurist. Mathura Case which led to the 1983 Criminal Law Amendment Act.
(7) SURESH KUMAR KOUSHAL & ANR. VS. NAZ FOUNDATION & OTHERS31
Section 377 of Indian Penal Code, 1860 is constitutional. Legislative bodies are free either to
amend or delete section 377.
(8) SUPREME COURT ADVOCATES ON RECORDS ASSOCIATION VS. UOI32
Independence of Judiciary is basic structure of the Constitution so NJAC Act, 2014 and 99th
Constitutional Amendment are unconstitutional and it revived Collegium Systems.
(2) PROGRESSIVE VIEW OF THE SUPREME COURT- There are following cases on the
basis of which it can be said that Supreme Court had adopted progressive view-
(1) KESHAVANANDA BHARATI VS. STATE OF KERALA.33 In this case, Supreme
Court by its majority opinion restricted the arbitrary powers of parliament and held that
Parliament cannot destroy the basic structure of the Constitution by amendment.
(2) E. P. ROYAPPA VS. STATE OF TAMIL NADU & ANR.34 BHAGWATI, P.N., ―Euality
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; one belongs to
the rule of law in a republic while the other, to the whim and caprice of an absolute monarch.
Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and
constitutional law and is therefore contrary to Article 14.‖
After decision of this case, now there are three conditions are require for the validity of law
under Article 14, namely,-(1) There must be intelligible differentia, and (2) Such differentia
must be related to the object sought to be achieved by the Act and (3) It must not be arbitrary.
(3) MANEKA GANDHI VS. UNION OF INDIA35
This case was decided after emergency period. So Supreme Court tried to revive value of
Fundamental Rights. This case may be said Magnacarta declared by Supreme Court in the
development of human rights in India. There are following important points which were laid
down in this case-
(1) Articles 14, 19 and 21 are not mutually exclusive. These are inter connected to each other. (2)
Article 21 protects not only from arbitrary executive actions but also against arbitrary law
30
Date of Judgment15th September 1978, Supreme Court
31
Date of Judgment 11December 2013, Supreme Court
32
Date of Judgment 16 Oct. 2015, Supreme Court
33
Date of Judgment 24April 1973, Supreme Court
34
35
Date of Judgment 25 January, 1978 Supreme Court.
69
enacted by Legislative body. (3) Law must be just, fair and reasonable. Law is not merely piece
of legislation. Approach of Natural School was applied. There is scope for jus naturale. (4) Law
and procedure must be just fair and reasonable. (5) Right to life is not confined to physical
existence but it includes right to life with human dignity. Right to life includes right to go
abroad. (6) Articles 19 and 21 are connected to each other. So if any law depriving liberty of any
person must also satisfy others provisions of the constitution. (7) Article 21 would be applied in
both the case whether it is direct or indirect restrictions.
(4) RUDAL SINGH VS. STATE OF BIHAR36 (CJI-Y. V. Chandrachud) - Petitioner was 14
years in Jail illegally. This is the first case in which principle of sovereign immunity was not
applied in case of violation of human rights. Victim was awarded Rs.35000 as compensation. It
was the first case when compensation was given for violation of Article 21.
(5) M.C.MEHTA & ANOTHER VS. UOI & ORS,37- This case originated in the aftermath of
oleum gas leak from Shriram Food and Fertilisers Ltd. complex at Delhi. This gas leak occurred
soon after the infamous Bhopal gas leak and created a lot of panic in Delhi. Jurisprudence Law
should keep pace with changing socio-economic norms. Where a law of the past does not fit in
to the present context, Court should evolve new law. Justice Bhagwati denied the principle of
strict liability and evolved new principle i.e. Principle of Absolute Liability.
(6) D.C. WADHWA VS. STATE OF BIHAR.38 In this case, Supreme Court restricted the
misuse of constitutional powers. In this case following guidelines were laid down- (1)There must
not be an Ordinance-Raj in the country. (2) Repeated promulgation of the same ordinance is
fraud on the Constitution. (3) Re- promulgation is allowed only in certain circumstances. There
may be a situation where it may not be possible for the Government to introduce and push
through in the Legislature a Bill containing the same provisions as in the Ordinance, because the
Legislature may have too much legislative business in a particular Session or the time at the
disposal of the Legislature in a particular Session may be short, and in that event, the Governor
may legitimately find that it is necessary to re-promulgate the Ordinance.
(7) S.R.BOMMAI AND ANR. VS. UOI39
This is a historical case in which Supreme Court laid down several guidelines and tried to save
democracy of the Country. These guidelines are following-
(1)Floor test is mandatory.(2) ) Without prior approval of proclamation of failure of
Constitutional Machinery in State U/A356 by Parliament , Legislative Assemblies cannot be
dissolved. Clause (3) of Article 356 is conceived as a check on the power of the President and
also as a safeguard against abuse. (3) In case both Houses of Parliament disapprove or do not
approve the Proclamation, the Proclamation lapses at the end of the two- month period. In such a
case, Government which was dismissed revives. (4) The Proclamation under Article 356(1) is
not immune from judicial review. The Supreme Court or the High Court can strike down the
Proclamation if it is found to be mala fide or based on wholly irrelevant or extraneous grounds.
36
Date of Judgment, 1st August 1983, Supreme Court.
37
Date of Judgment, 20 Dec. 1986, CJI P. N. Bhagwati( 12 July1985-20-Dec.1986).
38
Date of Judgment, 20 Dec. 1986, CJI P. N. Bhagwati( 12 July1985-20-Dec.1986).
39
Date of Judgment, 11 March 1994, Supreme Court.
70
(5) Revival of Dissolved Assembly is possible- The Proclamation dated April 21, 1989 in
respect of Karnataka and the Proclamation dated October 11, 1991 in respect of are
unconstitutional. But for the fact that fresh elections have since taken place in both the States and
new Legislative Assemblies and Governments have come into existence we would have formally
struck down the Proclamations and directed the revival and restoration of the respective
Governments and Legislative Assemblies. (6) The Proclamations in respect of Madhya Pradesh,
Rajasthan and Himachal Pradesh concerned are not unconstitutional. Secularism is basic
structure of our Constitution.
(8) SECRETARY, MINISTRY OF INFORMATION AND BROADCASTING VS.
CRICKET ASSOCIATION OF BENGAL.40- Government has no monopoly on electronics
media. By this decision, Supreme Court pulled out control of Government from electronic media.
Controlled media is not healthy for development of democracy.
(9) NATIONAL LEGAL SERVICES AUTHORITY VS. UNION OF INDIA, 41- Hijras and
Transgender are the persons under Article 14, so they are also entitled to legal protection. It was
also directed to all authorities to make such provisions so that trans-genders may maintain their
separate identity. Before the decision of this case, trans-genders were neglected.
(10) SHAYARA BANO and Anr. VS. UOI & Ors42(TRIPLE TALAQ CASE)
Constitutional Bench43- 5 Judges, Decision 3:2 Majority opinion of Judges (1) Justice Joseph
Kurian (2) J. U.U.Lalit,(3)Justice .R.F.Nariman. Minority opinion of Judges -(1) CJI Khehar
(2) Justice Abdul Nazeer. This judgment is milestone in reform of Muslim Laws. It provides a
dignified life for a Muslim wife.
GROUNDS of DECISION- (1) Right to conscience & profession, practice and propagation are
subject to health, public order, morality and subject to the other provisions of this part, for
example gender equality, abolition of untouchability, right to life, traffic in human being and
forced labour. Triple talaq is against gender equality enshrined under Article 14. Article 15 also
prohibits discrimination on the ground of sex. Triple talaq is arbitrary, while arbitrariness is anti-
thesis of equality.44
(2) Right to life includes right to dignified life. Triple talaq is against this right. In the Maneka
Gandhi vs. Union of India,45 Supreme Court held that right to life includes dignified life.
(3) Krishna Singh vs. Mathura Ahir (1981). In Mathura Case, Article 25 involves a separation
between ‗religious activities‘ on the one hand, and secular and social activities on the other
hands. Mohd. Saheb never recognized irrevocable talaq and this mode of talaq has not been
mentioned in holy Quaran. So triple talaq (irrevocable talaq) is not essential part of religion. So it
is not protected under Article 25 of the Constitution of India.
40
Date of Judgment, 9 Feb.1994 Supreme Court.
41
Date of Judgment, 15 April 2014, Supreme Court.
42
Date of Judgment 22Aug. 2017, Supreme Court.
43
Article 145(3) and (5) of Constitution of India.
44
45
71
In consequences of this decision, Muslim Women (Protection of Rights on Divorce) Bill, 2017
was passed in Lok Sabha.
(11) JUSTICE K. S. PUTTASWAMI (RETD.) AND ANR. VS. UOI AND ORS46 Right to
privacy is fundamental rights. In a unanimous decision, a nine-judge Constitution Bench
overruled the Judgment in MP Sharma and Kharak Sing Case. In this case, Supreme Court
held that,
(i) The decision in M P Sharma which holds that the right to privacy is not protected by the
Constitution stands over-ruled; (ii) The decision in Kharak Singh to the extent that it holds that
the right to privacy is not protected by the Constitution stands over-ruled; (iii) The right to
privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21
and as a part of the freedoms guaranteed by Part III of the Constitution. (iv) Decisions
subsequent to Kharak Singh which have enunciated the position in (iii) above lay down the
correct position in law.
(12) INDEPENDENT THOUGHT VS. UNION OF INDIA & ANR.47 By decision of this case
Supreme Court equality among all women and prevented sexual harassment of women for the
name of marriage. Supreme Court held that sexual relations with wife, when wife is below the
age of 18 years is a rape. Section 375 Exception 2 is arbitrary to Articles 14, 15 & 21 of the
Constitution of India. Court may take cognizance under section 198(6) of Cr.P.C. Now in all
cases, sexual intercourse with a women including wife, if she is below the age of 18 years, is
rape.
CONCLUSION- After analyzing regressive and progressive views of the Supreme Court, it can
be said that Supreme Court of India has adopted progressive views and played vital role in the
development of nation. It has done excellent works in the sphere of human rights, protection of
environment and misuse of constitutional provisions. It evolved and followed several new
principles, for example, PIL, Absolute Liability etc. It has played very important role as a
guardian of Constitution of India.
REFERENCES-
1. Jain, M.P.,Indian Constitutional Law , Wadhwa and Company Nagpur , Nagpur, 5th
Edition,2003.
2. Singh, M.P., V.N.Shukla‟s Constitution Of India,Eastern Book Company ,Lucknow,10edition
,2001).
3. kashyap,C. Subhash, Our Parliament,An Introduction To The Parliament Of India, National
Book Trust , India, New Delhi.
4. Pandey. J.N, Constitutional Law Of India,Central Law Agency,Allahabad,52nd Edn.2015.
5. Kaul J.L.& Shankaran, kamala , et.al. (eds.), Case material –Constitutional law -1,p.no.
120,Faculty of Law , University of Delhi, Delhi,2013).
46
Date of Judgment 24 August 2017.
47
Date of Judgment 11Oct.2017.
72
6. 58th Law commission headed by Hans Raj Khanna, 80th Report ―On The Methods Of
Appointment Of Judges‖ 1979.
7. Constitution of India, 1950.
8. All India Report
9. Supreme court Cases
(10) http://rajyasabha.nic.in, visited on 15/01/2018
(11) http://www.supremecourtofindia.nic.in/chief-justice-judges, visited on 15/01/2018.
(12) http://presidentofindia.nic.in, visited on 15/01/2018.
(13) http://supremecourtofindia.nic.in/judgments visited on 16/01/2018.
73
PRESIDENT OF INDIA
S.N. YEA LEADING IMPORTANT POINT
R CASES
1 PRESIDENT IS A FORMAL HEAD
Article 53 (1) ―…in accordance with this Constitution.‖ Article 53 R/W
Art.74 , 75 and 61.
53(2) ―…..shall be regulated by law.‖
1955 Ram Jawaya Hon‘ble CJI Mukherjia, ― …though the executive power
Kapur vs. State of is vested in the President , the President is only a formal
Punjab or constitutional head of the executive. The real power is
vested in the Council of Ministers on whose aid and
advice the Presidents acts in the exercise of his functions.‖
1971 U.N.R.Rao vs. Quo Warranto writ petitions was filed on the ground that
Indira Gandhi after the dissolution of House of the People, Indira Gandhi
could not continue not continue his post as P.M. Supreme
Court held that Article 74(1) was mandatory. Article
75(3) is applied only when House of People does not
stand dissolved or prorogued. Writ petitions was
dismissed. India has not chosen Presidential systems of
Government.
1974 Samsher Singh vs. Whenever Constitution require satisfaction of the
State of Punjab President or Governor , for example Articles 123,
213,311(2) proviso(c) ,317,352(1),356 and 360, it is not
his personal satisfaction of President of President or
Governor but it is satisfaction of respective Council of
Ministers. President or Governor is the formal head.
ORDINANCE Artcle-123 (Ordinance Making power of President)

2 MAKING Artcle213 (Ordinance Making power of Governor)
POWER Artcle-239B(Ordinance Making power of Administrator)
Art. 123-(1) Both houses of Parliament are not in session
,(2) The President is satisfied that circumstances exist
which render it necessary for him to take immediate
action.(2)Without approval by Parliamment , life of this is
six weeks.
Dr.B.R.Ambedkar ―Legislative powers conferred on the President under
Article 123 is not the parallel power of legistation. It is
power exerciseable only when both houses of Parliament
are not in session and it has been conferred ex necessitate
rie in order to enable the executive to meet an emergent
situation. It is for limited period. It is coextensive power
with the power of Parliament.‖
1981 R.K.Garg vs. (1)Special Bearer bonds (Immunities and Exemptions )
Union of Ordinance,1981 is not ultra vires of Art.123.(2) The
India(Special Ordinance making power is co-extensive with legislative
74
Bearer bonds powers of Parliament.(3) An Ordinance is law within

Case) Article 13(3) of the Constitution and the fundamental
rights can be abridged by an Ordinance to same extent as
an Act of the Legisture.
1982 A..K.Roy vs. UOI (1)S.C. upheld the validity of National Security
Ordinance,1980. It dealt with preventing detention.(2)
Ordinance is Law under Article 13(3) and Art.367.(3)
F.R. can be curtailed by Ordinance subject to the basic
structure and other provisions of the Constitution.
1987 D.C. Wadhwa vs. (1)There must not be Ordinance--Raj in the country.(2)
State of Bihar. Repeated promulgation of the same ordinance is fraud on
(It was not related the Constitution.(3) When re promulgation is allowed?
to Ordinance There may be a situation where it may not be possible for
making power of the Government to introduce and push through in the
President. But Legislature a Bill containing the same provisions as in the
Art.123 &213 are Ordinance, because the Legislature may have too much
pari materia legislative business in a particular Session or the time at
(similar). So this the disposal of the Legislature in a particular Session may
case is relevant be short, and in that event, the Governor may legitimately
here.) find that it is necessary to re-promulgate the Ordinance.
3 PARDONING Article 72-President (Article 161-Governor)-(1) Where
POWER OF the punishment or sentence is by a Court Martial (Reason-
PRESIDENT Article 53(2) Being Supreme Command of Defence
Forces of Union).(2) Where the punishment or sentence is
for an offence against a law relating to a matter to which
the Union‘s executive power extends,(3)Death sentence.
1980 Maru Ram vs.UOI It is not open for the Presiident to take an independent
opnion and release the accused. It is the first time when
Supreme Court propounded some guidelines for use of
pardoning power. ―Power of pardon is very wide but it
can not riot.‖ No constitutional power iis to be exercised
arbitrary.
1989 Kehar Singh Request for personal hearing before President was
vs.UOI rejected by President.
2006 Epuru Sudhakar Pardoning power is subject to judicial review.Pardon was
vs. Gov. of A.P. given on political basis.
2013 Devinder Pal In this case court said that to decide inordinate delay to
Singh vs. State of dispose mercy petition case must be classified in two parts
NCT of Delhi namely –(1) Such offences which is covered under TADA
or similar statute and (delay is much less ground for
judicial review).(2) Other offences which are committed
to personal animosity or of over property and personal
disputes.
It is paradoxical that the people who do not show any
75
mercy or compassion for others plead for mercy and

project delay in disposal of the petition filed under Art. 72
& 161 of the Constitution as a ground for commutation of
death sentence.
2014 Shatrughan In this case Supreme Court rejected classification of
Chauhan v. Union offences to decide mercy petition and held that there is no
21Ja of India any good reason to disqualify all TADA cases as a class
n.(PI from relief on account of delay in execution of death
L,Ar sentence. Each case requires consideration on its own
t.32)) facts. There are following important points of this case --
1. Article 21 inhere in convict till his last breath even after
reject of mercy petition.2. Delay in disposal of mercy
petitions insanity/mental illness/schizophrenia, solitary
confinement and procedural lapses may be ground of
judicial review. 3. Right to free legal aid is available even
after rejection of mercy petition. 4. Disposing of mercy
plea is a constitutional obligations. It is not a mere
prerogative for the president and his decision will be
subject to judicial review. 5. Considering the high status
of the office of President & Governor Constitutional
framers did not stipulate any outer time limit for disposing
of mercy petition it means such petition must be decided
expeditiously.
Right to seek mercy U/Art. 72 & 161 is a constitutional

right and it is not discretion of whims of the executive.
6. Guideline for jailers to follow before a hanging-(a)
Only after lapse of 14 days after-rejection of mercy
petition (b) Information to convict must be given in
writing. (c) Family re-union before execution is
mandatory.
2 Mohd. Arif @ In death cases, the matter should be heard by a three-

sep.2 Ashfaq v. Judge Bench and the review petition should be heard in
014 Registrar, Supreme the open court by giving maximum time limit of 30
Court of India and minutes to the convict.
Ors
29.07 Yakub Abdul ―We conclude that the curative petition which is decided
.2015 Razak Memon vs. by three senior most Judges of this Court cannot be
Dipa State of flawed and the issue of death warrant by the TADA Court
k Maharashtra on 30.04 2015 cannot be found fault with. In the result,
Misr the writ petition, being sans merit, stands dismissed.‖
a
Yakub Abdul On 21 March 2013, the Supreme Court confirmed
3.15 Razak Memon vs. Memon's conviction and death sentence for conspiracy
76
a.m. State of through financing the attacks. . After rejection of first

on Maharashtra mercy petition, he had got 14 days time , as it was said in
30.07 Shatrughan Sinha case. No need of giving 14 days‘ time
.2015 Two mercy after rejection of second mercy petition. (Night Hearing
petition, Case)
4 EMERGENCY
JUDICIAL REVIEW OF EMERGENCY POWER
1974 Bhut Nath V.State No power of Judicial review. Supreme Court refusing to
of West Bengal hold the continuance of the emergency under Article 352
void stated that the questions is ‗political‘ not justiciable
issue and appeal should be to the polls and not to the
court.
1977 State of Rajasthan Satisfaction of the President in Article 352,356 &360 does
vs. UOI not mean personal satisfaction of President, but it is
satisfaction of the Cabinet. Satisfaction of the President
can be challenged on two grounds-(1) If it has been
exercised by mala fides (2) When satisfaction is based
wholly extraneous & irrelevant grounds. In these two
cases, it would be no satisfaction of President.
1980 Minerva Mills vs. Justice Bhagawati, ― Whether the President in
UOI Proclaiming the emergency U/A 352 had applied his mind
or whether he acted outside his powers or acted mala
fide in proclaiming the emergency could not be excluded
from th scope of judicial review.‖
1994 S.R.Bommai vs. Satisfaction of the President is not beyond of Judicial
UOI Review.
5 NATIONAL EMERGENCY( THREE TIMES)
During 25 (1)External Aggression – 26 Oct.1962- 10
June,1975-21 Jan,1968,Reason- Indo-China War(20 Oct.1962 China
March 1977, two attacked over India.)
emergency
proclamations (2)External Aggression - 03Dec.1971-21 March 1977,
were in force Reason- Indo-Pak War,
simultaneously
(3)Internal disturbance 25 June,1975-21 March
1977.(J.P.Movement)
Indo-Pak war When the emergency was proclaimed on 26 Oct., 1962
under Article 352(1) in thhe wake of conflict between
China and India , the President issued an Order under
Article 359, on November, 1962 , suspending the right to
move any Court to enforce Arts.14,21&22, if a person
was deprived of any such right under the Defence Of
India Act, 1962, or any rule or order made thereunder.
J.P. Narayan On June 25,1975, emergency was declared in Indiaon the
Movement ground of internal disturbance threating security of India .
Under Art.359 A Presidential Order was issued on June
77
27,1975suspending enforcement of FRs.

Effect of National (1)Extension of Centre‘s Executive Powers –Art.353(2)
Nmergency Parliament empowered to legislate on State Subjects-
Arts.353(2) and 250.(3) Extension of life of Lok Sabha-
Art.83(2).(4) Suspension of provisions of Art.19 during
emergency.(5) Suspension of the enforcement of
provisions of Part III during emergency.
1964 Makhan Singh vs. (1) The detenus cannot exercise their right to enforce
State of Punjab. their fundamental rights under Arts. 21, 22 and 14 of the
Malkhan Singh Constitution, during the period for which the said right
and other detained was suspended by the President's order under Article 359.
were detained (2) The President's order does not preclude, even
under the Defence under Art. 32(1) and Art. 226 of the Constitution, the
of India Act,1962. petitioners from proving that the orders of detention were
not made under the Defence of India Ordinance or the
Act, 1962 either because they were made, (i) outside the
provisions of the Ordinance or the Act or (ii) in excess of
the power conferred under them, or (iii) the detention
were made mala fide or due to a fraudulent exercise of
power.
1968 Ghulam Sarwar vs. Order passed by the President under Article 359(1) is law
UOI and it could be challenged as being discriminatory.
1968 Mohd. Yaqub vs. Order passed by the President under Article 359(1) is not
State of J&K law within Article 13(3) so validity could not be
challenged with reference to Part III. Supreme Court
overruled its earlier decision of Ghulam Sarwar vs. UOI.
28 A.D.M.Jabalpur ORDER By majority- Maintenanc of Internal Security
April vs. S.S.Shukla Act, 1971-In view of the Presidential order dated 27 June
1976 (Habeas Corpus 1975 no person has any locus standi to move any writ
Case) petition under Article 226 before a High Court for habeas
corpus or any other writ or order or direction to challenge
the legality of an, order of detention on the ground that the
order is not under or in compliance with the Act or is
illegal or is vitiated by malafides factual or legal or is
based on extraneous consideration. Section 16A (9) of the
Maintenance of Internal Security Act is constitutionally
valid. Supreme Court denied to follow the ratio of
Malkhan Singh Case. Reason-The 1962 Presidential
Order was conditional order as it related to only those
persons who had been detained under Defence of India
Act, 1962. Presidential Order dated 27 June, 1975 was a
blanket order and was not confined to persons detained
under particular law.
44th In Consequence of ADM Jabalpur Case-(1)Article 20 and
Amendment,1978 21 cannot be suspended under Article 359.(2) Internal
disturbance was substituted by armed rebellion.(3)
78
Article 19 cannot be suspended under Article 358 when

the emergency is declared on the ground of armed
rebellion.
2005 Sarbananda What is the meaning of ‗aggression ‗used in Article 355?
Sonowal vs. UOI The Court said that aggression is not to be confined only
with the war .Though the ‗war‘ be included within the
ambit and scope of the word ‗aggression‘ but it comprises
many other acts which cannot be termed as war. The
unabated influx of illegal migrants of Bangladesh into
Assam leading to perceptible change in the demographic
pattern of the State having dangerous pattern of the State
and contributing factor behind insurgency in the States
having dangerous dimensions of greatly undermining
national security and is an act of aggression..
6 FAILURE OF CONSTITUTIONAL MACHINERY
1977 State of Raj. Vs. Nine Assemblies Dissolution Case,1977-(1) These
Union of India dissolution were justified.(2) Satisfaction of the
President can be challenged on two grounds-(1) If it has
been exercised by mala fides (2) When satisfaction is
based wholly extraneous & irrelevant grounds. In these
two cases, it would be no satisfaction of President. It
means Judicial Reviews was allowed on two grounds.(3)
No need of prior approval of Parliament for dissolution
of assemblies.
1983- Sarkaia In view of the growing pressure for the greater autonomy,
1987 Commission in June 1983 the Union Government appointed a
commission under the chairmanship of Justice R.S.
Sarkaria to review the question of centre- state relations.
The commission submitted its report to the then prime
minister Rajiv Gandhi on 27 October 1987.
1994 S.R.Bommai and (1)Floor test is mandatory.(2) ) Without prior approval
11 Anr. Vs. UOI of proclamation of failure of Constitutional Machinery in
Marc State U/A356 by Parliament , Legislative Assemblies
h cannot be dissolved. Clause (3) of Article 356 is
conceived as a check on the power of the President and
also as a safeguard against abuse. (3) In case both Houses
of Parliament disapprove or do not approve the
Proclamation, the Proclamation lapses at the end of the
two- month period. In such a case, Government which
was dismissed revives. (4) The Proclamation
under Article 356(1) is not immune from judicial
review. The Supreme Court or the High Court can strike
down the Proclamation if it is found to be mala fide or
based on wholly irrelevant or extraneous grounds. (5)
Revival of Dissolved Assembly is possible- The
Proclamation dated April 21, 1989 in respect of Karnataka
79
and the Proclamation dated October 11, 1991 in respect of

are unconstitutional. But for the fact that fresh elections
have since taken place in both the States and new
Legislative Assemblies and Governments have come into
existence we would have formally struck down the
Proclamations and directed the revival and restoration of
the respective Governments and Legislative Assemblies.
(6) The Proclamations in respect of Madhya Pradesh,
Rajasthan and Himachal Pradesh concerned are not
unconstitutional. Secularism is basic structure of our
Constitution.
2006 Rameshwar Prasad In this case , S.C. Declared that proclamation under
vs.UOI Article 356 is unconstitutional and theoretically Court
had power to revive dissolved Assembly. But due to
election process was going on so it denied to revive Bihar
dissolved Assembly.
2016 Nabam Rebia, and This is the first case when Supreme revived dissolved
13Jul Bamang Felix Assembly of Arunachal Pradesh. In S.R. Bommai and
y Vs. Deputy Rameshwar Pradesh case S.C. declared that the Court had
Speaker and others power but due to change of circumstances did not revived.
Here proclamation under Article 356 was declared
unconstitutional.
80
TORTIOUS LIABILITY (GOVERNMENTAL LIABILITY FOR TORTS OF ITS

SERVANTS)
ARTICLE 300- PRE CONSTITUTION STATUS QUO
Article 300 of Article 300 maintain pre – constitution status quo in this
Constitution of regards. Its means liability of the present Government is pari
India. passu with the liability of East India Company. It means
position of this Government is same as East India Company.
The Company had a duel capacity- (1) Commercial & (2)
Sovereign. This Company was exempted from tortious
liability in its sovereign capacity.
Government of India = Union of India, Government of State
= Name of the State
Liability- Union of India = Dominion of India,
Liability- Name of the State = Corresponding Provinces /
Indian States
1935 Article 300 is same Government of India Act, 1935- Section 176- Liability of
as Government of Dominion of India and Provinces / Indian States were
India Act, 1935- described in Section 176 of this Act. – Same as Secretary of
State- in- Council the like cases
1915 Government of India Government of India Act, 1915- Section 32- Every person
Act, 1935 is same as shall have the same remedies against the Secretary of State-
Government of in- Council as he might have had against the East India
India Act, 1915 Company , if the Government of India Act, 1858, and this
Act had not been passed .
1858 Government of India Government of India Act, 1858, Section 65- Liability of
Act, 1915 is the Secretary of State- in- Council is the same as the liability of
same as the Company.
Government of
India Act, 1858
East Government of India Government of India = East India Company
IndiaC Act, 1858 is same as
ompan Company.
y.
LEADING CASES
Bomba P & O Steam P & O Company made a claim for damages for injury
y H.C. Navigation Co. vs. caused to its horse by the negligence of some workmen in
1861 Secretary of State the Government Kidarpur Dockyard ( Calcutta ). Where an
Chief Justice act was done in the exercise of of sovereign powers which
Peacock- Distinction could not be lawfully exercised except by a sovereign , or
between Sovereign private individual delegated by sovereign to exercise them ,
& Non-Sovereign no action would lie. On the other hand , Secretary of State
functions. would be liable for damages occasioned by the negligence of
81
Maintaining of servants of the Government if the negligence was such as

Dockyard is Non – would render an ordinary employer liable. Plaintiff got
Sovereign functions relief.
1882 Secretary of State , State should be liable as just like an ordinary employer.
India in Council vs.
Hari Bhanji
1956 Law Commission of First Report- Secretary of State, India in Council vs. Hari
India Bhanji In this case good law was propounded.
1962 State of Rajasthan The husband of the respondent was fatally injured while
S.C. vs. walking along a public road by a jeep car driven by a driver
Mst. Vidhyawati employed by the appellant State. It was maintained for the
Non – Sovereign use of D.M. (District Magistrate).
functions Crown Proceedings Act 1947 – In England, Crown is liable
for a torts committed by its servants just like a private
master.
State should be liable as just like an ordinary employer
1965 Kasturi Lal Ralia Act of the Constable was declared sovereign function. This
Ram Jain vs. State of judgment was vehemently criticized.
U.P.
1983 Rudal Shah vs. State First time, State was liable to pay compensation for violation
Bihar of Fundamental Rights.
1994 N. Nagendra Rao & When due to negligent act of the officers of a State a citizen
Co. vs. State of suffers any damage the State will be liable. ……stocks of
Andhra Pradesh food grains and fertilizers were seized. He was later on
found not guilty of black-marketing. The Court held that the
State would be liable if the State is involved in commercial
matter or when matter is related to right to life and liberty.
2000 Chairman, Railway Rape with Bangladeshi Woman. Compensation was allowed.
Board vs. Chandrima
Das
82
DIFFERENCE BETWEEN NATIONAL EMERGENCY AND STATE EMERGENCY
SN NATIONAL EMERGENCY STATE EMERGENCY
1 (1) War (2) External Aggression (3) Armed There is no any specified ground, only condition is
Rebellion. (Internal disturbance was that the President is satisfied that the State
substituted by Armed Rebellion (44th government cannot run according to the provisions
Amend.1978.) (I) External Aggression – 26 of the Constitution.
Oct.1962- 10 Jan, 1968, Reason- Indo-China
War (20 Oct.1962 China attacked over India.)
(II) External Aggression - 03Dec.1971-21
March 1977, Reason- Indo-Pak War, (III)
Internal disturbance 25 June, 1975-21 March
1977. (J.P. Narayan Movement).
2 Security of India or any part of India is It is confined only up to the territory of particular
threatened by existence of grave emergency State
3 National emergency must be approved within While State emergency must be approved within
ONE MONTH from both Houses of two months for its continuation. It means for TWO
Parliament. MONTHS there is no need of approval of
parliament.
Once emergency is approved by Parliament , Now, once emergency is approved by Parliament ,
it would be continued only for six month. For it would be continued only for six month. For further
further extention of six months, it again extention of six months, it again requires approval of
requires approval of Parliament. Periodical Parliament. Periodical review of six months.
review of SIX MONTHS. No maximum Maximum period is three years.
period has been fixed,
4 Fundamental rights are suspended,-Article It does not affect fundamental rights.
358 &359
5 Period of Lok Sabha may be extended for one Period of Legislative Assembly can also be
year at a time- Article -83(2) Provided that…. extended for one year at a time-Article 172(1)
Provided that….Legislative Assemblies can also be
dissolved by President.
6 Parliament can make law for whole or any part In case of State of emergency, Parliament can make
of the territory of India – Article 353 &250 law only for that State.
83
DIFFERENCE BETWEEN BEFORE & AFTER 44th CONSTITUTIONAL

AMENDMENT
BEFORE 44th AMENDMENT AFTER 44th AMENDMENT
1 Ground of National Emergency, (1) War Ground of National Emergency,(1)War
(2) External Aggression, (3) Internal (2) External Aggression, (3) Armed
Disturbance. Rebellion.
2 In 1975,N.E. was declared only on the President can declare NE only on the advice
advice of Prime minister who advised given by the Cabinet ministers in writing.
the President without consulting Cabinet
Ministers.
3 Proclamation of emergency must be Proclamation of emergency must be
approved within TWO MONTHS by approved within ONE MONTH by
resolution of both Houses by Parliament. resolution of both Houses by Parliament..
4 Proclamation of emergency must be Proclamation of emergency must be
approved within two months by approved within one month by resolution of
resolution of both Houses by Parliament. both Houses by Parliament. Such resolution
Such resolution must be passed by must be passed by total member of each
SIMPLE MAJORITY. house and not less than 2/3 majority of the
members present and voting in each house.
5 Protection was available for all acts Now protection will be available only for
which were done during emergency. those acts which are done under the statutes
which are specifically related to emergency.
6 There was no limitation period for Now, once emergency is approved by
emergency. Once emergency approved, it Parliament, it would be continued only for
became subject matter of executive how six month. For further extension of six
long it would be continue. That‘s why months, it again requires approval of
first (26 Oct.1962- 10 Jan, 1968,) and Parliament. Periodical review of six
second emergency (03Dec.1971-21 months.
March 1977) were continued near about
six years.
7 Art.358- Declaration of National Art. 19 can automatically suspended only in
Emergency (NE) on any ground, Art. 19 two cases – when NE is declared either on
was automatically suspended. the ground of war or external aggression. In
case of ―Armed Rebellion‖ Art. 19 cannot be
automatically suspended.
8 Art.359-Enforcement of any FRs can be Enforcement of any FRs can be suspended
84
suspended by Presidential Order. by Presidential Order, except Arts. 20 & 21.

9 Art.360 (5) Decision of the Court was Art. 360 (5) was omitted. Now decision of
final and conclusive. president is not final.Art.360(2) was
substituted,
CONSTITUTIONAL AMENDMENT IN INDIA (ARTICLES 368)

S.N. YEA CONST. REASONS
R AMEND.
1951 1st NINTH SCHEDULE – Beyond Judicial Review
1985 52nd TENTH SCHEDULE- Anti- Defection Law
1992 73rd ELEVENTH SCHEDULE- w.e.f.24 April 1993 Village Panchayat
1992 74th TWELVETH SCHEDULE- w. e. f. 1June 1993-Municipality
1 1951 1ST (1) ROMESH THOPPER VS. STATE OF MADRAS, Article 19 (2)
Amendm Three more grounds for restrictions on freedom of speech and expression
ent (2) CHAMPACAM DORAIRAJAN VS. STATE OF MADRAS –
Article 15 (4) was added and reservation for S.C., S.T. and OBC was
provided.
2 1962 14th INDEPENDENCE OF PONDICHERRY FROM FRANCE
GOVERNMENT.
Territory of Pondicherry was added in First Schedule as a Union
Territory.
3 1963 16th EXTERNAL AGGRESSION BY CHINA on 20 OCT. 1962. Article
19 (2), (3) & (4) – Restrictions in interest of sovereignty and integrity of
India. Provisions regarding ‗oath‘.
4 1971 24th GOLAKNATH VS. STATE OF PUNJAB, 1967- (1) Relations
between 13 and 368. Article 13 (4) and 368 (3) were added (2)Article
368 – Power and Procedure
5 1971 25th R.C.KOOPER VS. UOI, 1970. Article 31 (2) - Compensation word was
substituted by word ‗amount‘. Article 39-C was inserted and it was
provided that Article 39 (b) and (c) cannot be challenged on the ground
of Articles 14, 19 and 31.
6 1971 26th H. H. Maharajadhiraja Madhav Rao Scindia vs. Union Of India, 15
December, 1970 , Privy Purse Case- In this case the Court held that
Privy Purse is a property so it cannot be taken away merely by
Presidential order . The Amendment omitted Arts. 291 and 362 and
inserted 363 – A which abolished the right of Privy Purse and all rights,
liabilities and obligations in respect of Privy Purse.
7 1975 36th Sikkim became a full -fledged state of Indian Union.
8 1976 42nd (1) Preamble – Three new words were inserted – (i) Socialist (ii) Secular
and (iii) Integrity (2) Fundamental Duties -Art. 51 A was inserted (3)
Tribunals – Parts XIV , Sections 323-A and 323-B were inserted
85
9 1978 44th (1) Article 74 (1) Provided that was inserted. (2) Emergency
10 1995 77th 16(4-A) was inserted. Reservations in promotions for S.C. and S.T.
To nullify the decisions of Indra Sawhney vs. UOI, 16 November,
1992.
11 2000 81st 16(4-B) was inserted. Backlog vacancies (Carry forward rule) . To
nullify the decisions of Indra Sawhney vs. UOI, 16 November, 1992.
12 2002 86th Article 21A was inserted. Right to Education.
13 2003 91st Clauses (1-A) and (1-B) were inserted in Articles 75 and 164. Limited
size of Council of Ministers. 15% of House of People & Legislative
Assembly.
14 2005 93rd T.M.A Pai Foundation and P. A. Inamdar Case. Reservation in
Educational institutions. 27% reservation was provided and in case
of Ashok Kumar Thakur vs. UOI 2008, it was upheld Constitutional.
15 2014 99th Collegium System was substituted by National Judicial Appointment
Commission (NJAC). In the case of Supreme Court Advocates on
Records Association vs. UOI 6 Oct.1993 Suppreme Court evolved In
this ‗Collegium System‘. Supreme Court Advocates on Records
Association vs. UOI 16 Oct. 2015 in this case NJAC was declared
unconstitutional.
16 2015 100th Exchange of certain enclave with Bangladesh
17 2017 101st Goods and Services Tax
S.N. YEARS SOME LEADING CASES

1 1951 SHANKARI PRASAD VS. U.O.I. First Constitutional Amendment
whereby Arts. 31-A & 31-B were inserted was challenged. The Court held
that amendment under Article 368 does not come under the definition of law
under Article 13. ‗Law‘ under Article 13 covers only ordinary law rather than
amendment. Parliament can amend and part including Fundamental Rights.
2 1965 SAJJAN SINGH VS. STATE OF RAJASTHAN. 17th Const. Amend. was
challenged. Shankari Prasad case was approved.
3 1967 GOLAK NATH VS. STATE OF PUNJAB 17th Constitutional Amendment
was challenged. It was decided by 6 to 5 majority. (1)Prospective overruling.
(2)The Court held that Parliament had no power from the date of this decision
to amend Part III so as to take away or abridge the Fundamental Rights. The
Power of Parliament to amend the Const. is derived from Article 245 read
with Entry 97 of List I. (3) An amendment is the law within the meaning of
Art.13 (2).
4 1973 KESHWANANDA BHARATI VS. STATE OF KERALA. Any part of the
Constitution may be amended subjected to the basic structure of the
Constitution. Judicial Review is the basic structure of the Constitution.
5 7 Nov. 1975 INDIRA NEHRU GANDHI VS SHRI RAJ NARAIN & ANR
Clauses (4) and (5) of Article 329A are unconstitutional. Article 329A was
inserted by 39th Amendment (1975) and omitted by 44th Amendment (1978)
. Free and Fair election is basic structure of the Constitution. But election of
Indira Gandhi was declared valid.
86
6 1980 Minerva Mills vs. UOI. (1) Article 31-C- Doctrine of Harmonious
Construction – All DPSP cannot override FRs. (2) Article 329-A is
unconstitutional. Article 368 (4) & (5) are unconstitutional which prohibits
Judicial Review.
7 1992 Kihoto Hollohan vs. Zachillhu- Para 7 of Schedule X is unconstitutional.
8 1997 L.Chandra Kumar vs. UOI- Article Articles 323-A Clause 2(d) 323-
Clause 3(d) are unconstitutional because it excludes Judicial Review and
Jurisdiction of Supreme Coourt and High Courts.
9 2007 I.R.COELHO VS. STATE OF TAMILNADU. Any law which were put in
Schedule IX after 24 April 1973 can be challenged on the basis of
infringement of basic structure of the Constitution.
10 16 Oct. 2015 Supreme Court Advocates on Records Association vs. UOI –
Independence of Judiciary is basic structure of the Constitution so NJAC Act,
2014 and 99th Constitutional Amendment are unconstitutional and it revived
Collegium Systems.
MODES OF AMENDMENTS OF THE CONSTITUTION
SIMPLE SIMPLE MAJORITY- It is passed as ordinary legislation is passed in
MAJORITY Parliament. Article 4- Laws made under Articles 2 & 3 , Art.169- Abolition
or creation of Legislative Councils in States & 239-A- Creation of local
Legislatures or Council of Ministers or both for certain Union Territory , for
example – Puducherry. Here it has been clearly mentioned that any such law
made for this purposes would not come into the category of ‗Amendment‘
under Article 368.
SPECIAL SPECIAL MAJORITY- (1) Majority of total membership of that House
MAJORITY for example 273 out of 445 in Lok Sabha and 126 out of 250 in Rajya Sabha
and (2) by a majority of not less than two - thirds (2/3) of the members of
the Assembly present and voting. For example – (a) Let me suppose that
500 Members are present in Lok Sabha on 21/11/2017. 2/3 of 500 = 333. It
must be passed by 334 Members
SPECIAL SPECIAL MAJORITY AND RATIFIED BY THE LEGISLATURE OF
MAJORITY NOT LESS THAN ONE –HALF OF THE STATES At least it must be
and Ratified approved and passed by 15 States. NJAC and GST are the best examples.
by States
Krishna Murari Yadav
87
(LL.B. BHU, LL.M.- University of Delhi, UGC- NET-JRF, Ph. D.-BHU(Pursuing)

Assistant professor selected by University of Delhi , U.P. Higher Education Service
Commission (22nd Rank )and UPSC as 1st rank holder for Puducherry . Special thanks to
Rajendran Veerappan, Venkateshwaran, Gayathri, Mary , Arathi , Trapti Aggarwal and
other person who liked, commented and shared my post .
PRINCIPLES AND DOCTRINES RELATED TO CONSTITUTION

Arts. 13(1) & (2) (3) R.M.D.C. vs. Union of India AIR1957 S.C.
(4) Kihota Hollohan vs. Zachillhu 1992 Supp (2)SCC651
AIR1984SC1260
Doctrine of (1) Marbury vs. Madison , 1803
Judicial Review (2) State of Madras vs. V.G.Row, AIR 1952 SC196
Arts. 13(1) & (2) (3) Kesavananda Bharati vs. State of Kerala, AIR1976 SC
(4) Minerva Mills Ltd. Vs. UOI
(5) L. Chandra Kumar vs. Union of India AIR1997 SC1125
Doctrine of Bashesher Nath vs. Income Tax Commissioner AIR1959
Waver. Arts. SC149
Article Doctrine of Article 245(1) –
245 Territorial Nexus (1)Wallace vs. Income Tax Commissioner, Bombay,
AIR1948PC118
(2)State of Bombay vs. R.M.D.C.AIR1957SC699
(3) Tata Iron & Steel Company vs. State of Bihar 1958
(4) State of Bihar vs. Charusila Das 1959
Article 245(2)-
(1)A.H.Wadia vs. Income –Tax Commissioner, Bombay
AIR1949FC18
Article Harmonious (1) Calcutta Gas Co. State of W. B. 1952
246 Construction (2)Gujarat University vs. Krishna AIR1963 SC703
(3) O.N. Mahindroo vs. Bar Councilm1968
(4) D.A.V.College vs. Staete of Punjab 1971
Doctrine of Pith (1) Prafulla Kumar vs. Bank of Commerce, Khulna,
and Substance AIR1947PC60
(2)State of Bomay vs. F.N.Balsara AIR1951S.C.318
(3) State of Rajasthan vs. G. Chawla, 1972
Doctrine of (1) State of Bihar vs. Kameshwar Singh AIR 1952SC952
Colourable (2) K.C.G. Narayan Dev. State of Orissa AIR1953 SC375
Legislation
88
Article Residuary Union of India vs. H.S. Dhillon AIR 1972SC1061

248 powers of
Legislation
Article Doctrine of (1) Zaberbhai vs. State of BombayAIR1954SC752
254 Repugnancy (2)PremNath vs. State of Jammu & KashmirAIR1959SC749
(3)Deep Chand vs. State of U.P. AIR1959SC648
(4) M.Karunanidhi vs. UOI AIR1979

Arts. 13(1) & (3) R.M.D.C. vs. Union of India AIR1957 S.C.
(2)…to the extent (4) Kihota Hollohan vs. Zachillhu1992 Supp(2)SCC651
of the
inconsistency or
repugnancy
1950 A. K. Gopalan vs. Preventing Detention Act, 1950- Section 14 was declared
S.C. State of Madras ultra vires. S.C., ―The impugned Act minus this section can
remain unaffected.‖
1951 State of Bomay Bombay Prohibition Act, 1949- S.C., ―The provisions which
S.C. vs. F.N.Balsara have been declared as void do not affect the entire statute ,
therefore , there is no necessity for declaring the statute as
invalid.‖
1957 R.M.D.C. vs. Prize Competitions Act, 1955. Disputed law was severable.
S.C. Union of India Court declared unconstitutional only those parts which related
to competition not involving skill. According to Article
19(1)(g) Parliament could restrict prize competitions only of
gambling nature but not those involving skill.
1992 Kihota Hollohan S.C. by a majority of 3:2has upheld the validity of validity of
S.C. vs. Zachillhu Schedule X minus Para 7.
AIR1984SC1260
Pre-Constitutional Law
1955 Bhikaji Narain Berar Motors Vehicles (Amendment ) Act, 1947- Article 19(1)
Article Dhakras vs. State (g)- First Amendment Act, 1951
13(1) of M.P
Post-Constitutional Law
1959 Deep Chand vs. Doctrine of Eclipse is not applied on Post-Constitutional Law
Article State of U.P.
13(2)
1974 State of Gujarat Dispute was regarding in respect of Article 19. The S.C. held
Article vs. Ambica Mills that Art.13 (2) will affect only in respect of citizens and
13(2) AIR1974 regarding other, it would be applicable because Article 19 is
89
available only for citizens. Doctrine of Eclipse is not applied

against citizens.
1984 Dulare Lodh vs. Doctrine of Eclipse is applicable in case of all Post-
Article IIIrd Additional Constitutional Law even in case of citizens. Ejectment of
13(2) District Judge, tenant and Execution of Decree.
Kanpur
Articles Doctrine of (1) Marbury vs. Madison , 1803
13,32, Judicial Review (2) State of Madras vs. V.G.Row, AIR 1952 SC196
& 226 Arts. 13(1) & (2) (3) Kesavananda Bharati vs. State of Kerala, AIR1976 SC
(4)L. Chandra Kumar vs. Union of India AIR1997 SC1125
1803 Marbury vs. U.S.A. Constitution does not expressly mention about Judicial
Madison Review. Justice Marshall, Chief Justice of U.S. Supreme
Court , in the case of Marbury vs. Medison propounded the
Principle of Judicial Review.
1952 State of Madras Justice Patanjali Shatri , Chief Justice of Supreme Court ,
vs. V.G.Row, observed, ― Our Constitution contains express provisions for
Judicial Review of legislation as to its conformity with the
Constitution unlike in America where the Supreme Court has
assumed extensive powers..‖
1976 Kesavananda Judicial Review is basic structure of the Constitution.
Bharati vs. State
of Kerala,
1980 Minerva Mills Justice Chandrachud, C.J., ―Rights without remedies are as
Ltd. Vs. UOI writ in water. A controlled Constitution will then become
uncontrolled.‖
1997 L. Chandra Kumar Justice Ahmadi , C.J., ―….Power of Judicial Review over
vs. Union of India legislative actions vested in the High Court under Article 226
and in this Court under Article 32 of the Constitution is an
integral and essential features of the Constitution …..‖
Doctrine of
Waver. Arts.
13(1) & (2)
1959 Bashesher Nath Doctrine of Waver is not applicable in India unlike USA.
vs. Income Tax
Commissioner
Doctrine of Article 245(1) –

Territorial Nexus (1)Wallace vs. Income Tax Commissioner, Bombay,
AIR1948PC118
(2)State of Bombay vs. R.M.D.C.AIR1957SC699
(3) Tata Iron & Steel Company vs. State of Bihar 1958
(4) State of Bihar vs. Charusila Das 1959
Article 245(2)-
(1) A.H.Wadia vs. Income –Tax Commissioner, Bombay
AIR1949FC18
Article 245(1)
90
1948 Wallace vs. A company which was registered in England was a partner
Income Tax in a firm in India. Doctrine of Territorial nexus was
Commissioner, applied. Levy of tax was upheld because major parts of the
Bombay income was derived from British India.
1957 State of Bombay There must be sufficient nexus between the person sought to
vs. R.M.D.C. be charged and the State seeking to tax him. Sufficiency of
territorial connection involves consideration of two elements,
namely, (1) The Connection must be real and not illusory
(2)The liability sought to be imposed must be pertinent to that
connection.
1958 Tata Iron & Steel Doctrine of Nexus was applied to sales tax.
Company vs.
State of Bihar
1959 State of Bihar vs. Legislature has the power to legislate with respect to charitable
Charusila Das and religious trusts situate within its territory even though any
part of the trust property , small or large is situated in another
State
Non-application of The territorial limit on State legislation under Article 245 (1)
Doctrine of does not apply either to State executive schemes such as
Territorial nexus nationalization of inter-state road transport under the Motor
Vehicles Act (a Central Legislation ) or to trade and business
carried on by a State under the Authority of Article 298
Article 245(2)-
1949 A.H.Wadia vs. In the case of sovereign legislature question of extra-
Income –Tax territoriality of any enactment can never be challenged in the
Commissioner, Municipal Court.
Bombay
Article 246
Doctrine of Pith Substantially vs. Incidentally. The rule envisages that
and Substance legislation as a whole must be considered.
1947 Prafulla Kumar vs. True character of law. Bengal Money Lenders Act, 1940.
Lord Bank of Relation between ‗Promissory Notes‘ (Union List) and Money
Porter Commerce, lending (State List). The Court held that the Act was not void.
Khulna, The Court said that true nature of this enactment is dealing
money lending.
1951 State of Bomay S.C. , ―It is well settled that the validity of an Act is not
vs. F.N. Balsara affected if it incidentally trenches on matters outside the
Prohibition of authorized field and ,therefore , it is necessary to enquire in
sale, purchase use each case what is the pith and substances of the Act impugned.
possession etc. Vs. If the Act so viewed, substantially falls within the powers
Export and expressly conferred upon the legislature which enacted it
Import cannot be held to be invalid merely because it incidentally
encroaches on the matters which have been assigned to another
Legislature.‖
1972 State of Rajasthan Law restricting the use of sound amplifiers. Entry 6 of State
vs. G. Chawla List-Public health and sanitation vs. List 1, Entry 31-― Post
91
and telegraphs , telephones , wireless, broadcasting and other

like forms of communication.‖ State law is valid.
Doctrine of What you cannot do directly,

Colourable You cannot do indirectly.
Legislation
1952 State of Bihar vs. Law was declared unconstitutional.
Kameshwar Singh
1953 K.C.G. Narayan Orissa Agriculture Income Tax (Amendment) Act, 1950. Law
Dev. State of was declared constitutional. S.C. observed, ―Transgression
Orissa may be patent , manifest or direct, but it may also be disguised
Substance rather , covert or indirect….It is the substance of the Act that is
than form. material and not merely the form or outward appearance, and
if the subject-matter in substance is something which is
beyond the powers of that legislature to legislate upon the form
in which law is clothed cannot save it from condemnation .
The legislature cannot violate the constitutional prohibitions
by employing an indirect method.‖
20 Dec. Dr. D.C. Wadhwa it would most certainly be a Colourable exercise of
1986 & Ors. vs. State power for the Government to ignore the Legislature and to re-
Of Bihar & Ors . promulgate the Ordinance and thus to continue to regulate the
This case is life and liberty of the citizens through Ordinance made by the
mainly related to Executive.
Art.213.
Article Harmonious
246 Construction
1962 Calcutta Gas Co. It is also well settled that widest amplitude should be given to
State of W. B. the language of the entries. But some of the entries in the
different List or in the same List may overlap and sometimes
may also appear to be in direct conflict with each other. It is
then the duty of this Court to reconcile the entries and bring
about harmony between them….It is only when such a
reconciliation proves impossible , then, and only then, should
the overriding power of the Union legislature , the non
obstante clause (Notwithstanding anything in…)operate and
the Union power prevail.
1963 Gujarat University Education is the divided area between Centre and States. List I,
vs. Krishna Entry- 63,64,65 & 66 and List III, Entry -25. Dispute was
regarding medium of instruction. Whether the Gujarat State
Legislature was competent to enact Gujarat University Act,
1949 whereby exclusive medium of instruction (Gujarati) was
prescribed. The final outcome of the majority opinion appears
to be that a statute such as one which prescribes exclusive
medium in the University can not be sustained as it encroaches
upon the jurisdiction of the Union by virtue of item 66 of list I.
Item 11 of List II ( now Item 25 List III) and item 66 of list I. I
92
must be harmoniously construed.

1968 O.N. Mahindroo Question involved – Constitutionality of the Advocates Act,
vs. Bar Council 1961. Items 77 & 78 of list I - persons entitled to practice
before the Supreme Court and High Courts. Entry 26 of list
III-‗Legal , medical and other professions‘. The Supreme
Court applied the rule of HARMONIOUS CONSTRUCTION
and held that the Union Parliament is exclusively empowered
to legislate in respect of persons entitled to practice in the
Supreme Court and High Court and power to legislate in
respect of rest of the Practitioners falls under Entry 26 of list
III.
1971 D.A.V.College vs. The Supreme Court held that no State has the legislative
Staete of Punjab competence to prescribe any particular medium of instruction
in respect of Higher Education , if it interfere with the power
of Parliament under item 66 of list I.
Article Doctrine of Article 254(1) only applies where there is inconsistency
254 Repugnancy between Central Law and State Law relating to subject
mentioned in the Concurrent List.
1954 Zaberbhai vs. Parliament enacted the Essential Supplies Act, 1946 for
State of Bombay regulating production , supply and distribution of essential
commodities . A contravention of any provision of the above
act was punishable with imprisonment up to 3 years or fine or
both.
In 1947, considering the punishment inadequate , the Bombay
Legislature passed an Act enhancing the punishment provided
under the Central Law. The Bombay Act received the assent
of the President and thus prevailed over the Central Law and
became operative in Bombay .
However , in 1950 Parliament amended its Act of 1946 and
enhanced the punishment . It was held that as both occupied
the same field ( enhanced punishment ) the State law became
void as being repugnant.
1959 Prem Nath vs.
State of Jammu &
Kashmir
1959 Deep Chand vs. The Uttar Pradesh Transport Service (Development) Act,
State of U.P. 1955 passed by the State Legislature after obtaining the
assent of the President, and the validity of the scheme of
nationalization framed and the notifications issued by the
State Government under it. Parliament in 1956 with a view to
introducing a uniform law on nationalization of Motor
Transport amended the Motor Vehicles Act, 1939by adding a
new chapter to the Act enabling the State Government to
frame and execute a schemes of nationalization of Motor
Transport.
It was held that the two laws occupied the same field and the
93
State law , to the extent of inconsistency would be void.

1979 M.Karunanidhi vs. Fazal Ali , J, summarized the test of repugnancy in the form of
UOI the following propositions-
There was conflict (1) In order to decide the questions of repugnancy it must
between Tamil be shown that the two enactments contain inconsistent
Nadu Public Men and irreconcilable provisions, so that they cannot stand
(Criminal together or operate in the same field; (2) that there can be no
Misconduct ) Act repeal by implication unless the inconsistency appears on the
1947 and face of the two statutes; (3) that where the two statutes
Prevention of occupy a particular field, but there is room or possibility of
Corruption Act, both the statutes operating in the same field without coming
1947. Appellant into collision with each other, no repugnancy results; (4) that
was prosecuted for where there is no inconsistency but a statute occupying the
misusing his same field seeks to create distinct and separate offences, no
official position question of repugnancy arises and both the statutes continue
in purchasing to operate in the same field.
wheat from
Punjab.
TODAY, I AM GOING TO DISCUSS TWO EVENTS ( 06 DEC. 1956 & 06 DEC.1992)

which adversely affected India. First event is death of World Leader, Crusader of suppressed
class and women, Noble Jurist Economist , Social Reformer & Father of Indian Constitution,
Bharat Ratna Baba Saheb Bhim Rao Ambedkar Ji and second events Demolition of Babari
Masjid in Ayodhya, Faizabad, Uttar Pradesh.
94
Contribution of Baba Saheb Bhim Rao Amedkar.- 14April 1891( Mhaw,Madhya Pradesh) -06
Dec.1956 (Delhi)-Today our great leader Baba Saheb leave us with his guidance and intellect .
Although, he is no more with his body, but we can find out him surrounding us if we try to find
out him . He was the second person after Revered Jyotirao Fhule who loudly fought for those
people who were human being but had not been treated as a human being . He fought for those
people for whom there was separate road, well, restaurant etc. So in the Constitution of India,
some special provisions were added, for example, ―We the people of India.‖ It means
participation of all people irrespective of caste, sex, status, religion, language etc. Article 15 (1)
and (2), Article 17 etc. Being a first Law Minister of India, He introduced Hindu Code Bill and
argued for equality and liberty for women also. On this issue, he sacrificed his office of Law
Minister in Sep. 1951. He was not against Hindu religion but he wanted only to reform Hindu
religion. He adopted Buddist religion (14 Oct. 1956). He passes away on 06 Dec. 1956. Mission
of Baba Saheb has not been completed till now. A lot of work we have to do to complete
mission of Baba Saheb.
Demolition of Babari Masjid- (06 Dec. 1992).It is a killing of our democracy. Some goons for
political mileage and deviating the attention of public from relevant cause created anarchy in
country abated public for demolition of Babari Mosque. It may be true that birth place of Lord
Ram was demolished and very place Babari Masjid was built. But when matter was pending in
the Court, there was no need to demolish Babari Masjid. They should have been faith in judiciary
and Constitution of India. It is a worst condition of our Country that till now decision is pending
and culprit are holding public post. In case of S.R. Bommai vs. UOI (11March 1994) Supreme
95
Court held that Article 356 in respect of Madhya Pradesh, Rajasthan and Himachal Pradesh is
Constitutional.
Smt. INDIRA GANDHI (19 Nov. 1917 – 31 Oct. 1984 ). Today, we are commemorating birth
century of great leader of India Smt. INDIRA GANDHI.
EXCELLENT WORK- (1) External Aggression by Pakistan in 2nd Dec. 1971. In her regime,
Pakistan was divided into two parts (1971) namely (i) East Pakistan - Bangladesh & (ii) West
Pakistan- Pakistan.
(2) She worked for poor people ,for example (i) Nationalization of Banks (1969) (2) By 25 th
Constitutional Amendment in 1971, it was provided that in case of conflict between fundamental
rights and Art. 39 (b) & (c), DPSP (Art. 39 (b) & (c), will prevail. (3) Abolition of Privy Purse
(26th Constitutional Amendment in 1971).
(4) Test of Nuclear bomb on 18 May1974.
(5) By 36th Constitutional Amendment, Sikkim was admitted into India on 16 May 1975.
(6) Abolition of terrorism in Punjab (1984) .
SOME WRONG DECISIONS-
(1) Use of Article 356 in Kerala in 1959. She was elected as a Congress President in 1959 and
she played a vital role in removal of E. M. S. Namboodiripad Government ( Communist Party of
India -from 5 April 1957 to 31 July 1959 ).
(2) Appointment of Hon‘ble Justice Ajit Nath Ray as CJI (26 April 1973 – 28 Jan. 1977)by
superseding three senior most judges and appointment of Hon‘ble Justice M.H.Beg by
superseding Hon‘ble Justice H.R. Khanna, senior most judge of Supreme Court in 29
January1977.
(3) Declaration of third emergency ( 25 June 1975-21 March 1977).
In the conclusion I can say that she was a great leader of India.
96
(LL.B. BHU, LL.M.- University of Delhi, UGC- NET-JRF, Ph. D.-BHU(Pursuing) Assistant
professor selected by University of Delhi , U.P. Higher Education Service Commission (22nd
Rank )and UPSC as 1st rank holder . Special thanks to Rajendran Veerappan, Venkateshwaran ,
Gayathri, Mary , Arathi , Trapti Aggarwal and other person who liked, commented and shared
my post .
IMPEACHMENT OF PRESIDENT& REMOVAL OF JUDGES IN INDIA

Impeachment is a process by which President is removed from the office before completing the
prescribed term of office. Concept of impeachment of President has been borrowed from
America‘s Constitution. ―Impeachment‖ word in Constitution of India is used only for
removal of President of India48. Concept for removal of Judges has been borrowed from
England. But in legal luminaries and public, ―impeachment‖ word is also famous for removal
of members of four other bodies. These members are following-
(1) Judges of Supreme Court- Article 124(4)49 , (2) Judges of High Courts Article 217(1) (b) 50,
(3) Comptroller and Auditor General of India Article 148(1)51 (4) Chief Election Commissioner
48
Article 56(1) (b), Term of office of President. ―The President may, for violation of the
Constitution, be removed from office by impeachment in the manner provided in Article 61.‖
Article 61. Procedure for impeachment of the President (1) When a President is to be
impeached for violation of the Constitution, the charge shall be preferred by either House of
Parliament. (2) No such charge shall be preferred unless— (a) the proposal to prefer such charge
is contained in a resolution which has been moved after at least fourteen days‘ notice in writing
signed by not less than one-fourth of the total number of members of the House has been
given of their intention to move the resolution, and (b) such resolution has been passed by a
majority of not less than two-thirds of the total membership of the House. (3) When a charge
has been so preferred by either House of Parliament, the other House shall investigate the charge
or cause the charge to be investigated and the President shall have the right to appear and to be
represented at such investigation. (4) If as a result of the investigation a resolution is passed by a
majority of not less than two-thirds of the total membership of the House by which the charge
was investigated or caused to be investigated, declaring that the charge preferred against the
President has been sustained, such resolution shall have the effect of removing the President
from his office as from the date on which the resolution is so passed.
49
Article 124(4) - A Judge of the Supreme Court shall not be removed from his office except by
an order of the President passed after an address by each House of Parliament supported by a
majority of the total membership of that House and by a majority of not less than two- thirds of
the members of that House present and voting has been presented to the President in the same
session for such removal on the ground of proved misbehavior or incapacity.
97
Article 324(5) Provided 52. Judges of High Courts, Comptroller and Auditor General of India &
Chief Election Commissioner are removed on the same grounds and procedure as Judges of
Supreme Court are removed. According to Article 124(5), Parliament may by law regulate the
procedure for the presentation of an address and for the investigation and proof of the
misbehaviour or incapacity of a Judge under clause (4) of Article 124. Parliament, by using the
powers conferred on it under Article 124(5), has passed The Judges (Inquiry) Act, 1968.
IMPEACHMENT OF PRESIDENT- According to Article 56(1) (b), ―The President may, for
violation of the Constitution, be removed from office by impeachment in the manner provided in
Article 61.‖ According to Article 60, President takes oath of preserve, protect and defend the
Constitution of India. According to Article 61, impeachment proceedings can be started for
removal of President on the ground of violation of the Constitution of India. President is the
formal head of India. So, it has been tried to make proper balance between to prevent misuse of
post of President and dignity of head of Country.
PROCEDURE FOR REMOVAL OF PRESIDENT- Proceeding for removal of President can
be started either in Lok Sabha or in Rajya Sabha. In the Election of President, nominated
members of either House do not participate53. While in the impeachment proceedings, all
members including nominated members in Lok Sabha and Rajya Sabha also participate.
Members of the Legislative Assemblies do not participate in impeachment proceedings. There
are following stages for passing of impeachment-
(1) PROPOSAL TO REFER CHARGE – Such proposal must be signed by not less than one-
fourth of the total number of the members of the House. In case of Lok Sabha, one-fourth of
545, that is 136 members of Lok Sabha. In case of Rajya Sabha, one – fourth of 245, that is 61
members of Rajya Sabha.
(2) 14 DAYS‘ NOTICE TO PRESIDENT-When the proposal has been signed by not less
than one-fourth of the total number of the members of the House, then, after at least fourteen
days‘ notice in writing shall be given to President of India.
(3) PASSING OF RESOLUTION- The resolution must be passed by majority of not less than
two-thirds of the total membership of the House. For the example, in case of Lok Sabha,
resolution must have been passed by 363 members of the House. In case of Rajya Sabha,
resolution must have been passed by 163 members of the House. Here important point is that,
resolution must be passed by two-third members of the House rather than two-third of present
and voting.
50
Article 217(1) (b) .A Judge may be removed from his office by the President in the manner
provided in clause (4) of article 124 for the removal of a Judge of the Supreme Court;
51
Article 148(1) - There shall be a Comptroller and Auditor General of India who shall be
appointed by the President by warrant under his hand and seal and shall only be removed from
office in like manner and on the like grounds as a Judge of the Supreme Court.
52
Article 324(5) Provided. ―Provided that the Chief Election Commissioner shall not be
removed from his office except in like manner and on the like grounds as a Judge of the Supreme
Court and the conditions of service of the Chief Election Commissioner shall not be varied to his
disadvantage after his appointment.‖
53
Article 54, Election of President. Electoral College is constituted only by elected members.
98
(4) SECOND HOUSE- After passing of first House, resolution must be passed by another
House. Another House shall investigate or cause to be investigated the matter and the
President shall have the right to appear and to be represented at such investigation. If resolution
is also passed by majority of not less than two-thirds of the total membership of the House, the
President shall be deemed to be removed from the passing of Second resolution.
PROCEDURE FOR REMOVAL OF PRESIDENT AND JUDGES OF SUPREME COURT

PRESIDENT JUDGES OF SUPREME COURT
Grounds Grounds
Violation of the Constitution (1) Proved misbehavior or (2) Proved incapacity
Proposal for removal Proposal for removal
Notice in writing signed by not less Judges (Inquiry) Act, 1968, Section 3-(a) in the case
than one-fourth of the total number of a notice given in the House of the People, by not less
of members of the House (One- than one hundred members of that House; (b) in the case
fourth). In case of Lok Sabha, 136 of a notice given in the Council of States, by not less
members of Lok Sabha. In case of than fifty members of that Council;(100 Members of
Rajya Sabha, 61 members of Rajya Lok Sabha, or 50 Members of Rajya Sabha).
Sabha.
Acceptance of Notice Acceptance of Notice by Speaker or Chairperson
In the case of removal of CJI, Dipak Mishra, notice
signed by
Investigation by Committee Investigation by Committee
Judges (Inquiry) Committee shall be constituted of three
members under Section 3 of Judges (Inquiry) Act,
1968.
Speaker or, as the case may be, the Chairman shall
constitute a Committee consisting of three members of
whom (a) one shall be chosen from among the Chief
Justice and other Judges of the Supreme Court ; (b)
one shall be chosen from among the Chief Justices of
the High Courts; and (c) one shall be a person who is,
in the opinion of the Speaker or, as the case may be, the
Chairman, a distinguished jurist.
At the conclusion of the investigation, the Committee
shall submit its report to the Speaker or, as the case may
be, to the Chairman.
Notice Notice
14 Days prior notice
99
Passing of Resolution Passing of Resolution

Such resolution has been passed by The resolution must be passed supported by a majority
a majority of not less than two- of the total membership of that House and by a majority
thirds of the total membership of of not less than two- thirds of the members of that
the House. For the example, in case House present and voting. Here, minimum number is
of Lok Sabha, resolution must have fixed, i.e. in case of Lok Sabha, 273 Members and in
been passed by 363 members of the case of Rajya Sabha, 123 members. Suppose that, in
House. In case of Rajya Sabha, Lok Sabha only 273 members and Rajya Sabha only 123
resolution must have been passed by members are present and passed a resolution for
163 members of the House. Here, removing the Judge of the Supreme Court after
number is already fixed. complying other conditions, they can do it. In another
example, suppose that 500 members in Lok Sabha are
present, then the resolution must be passed by at least
333 members of the House. Suppose that 545 members
in Lok Sabha are present, then the resolution must be
passed by at least 363 members .
In the same Session
Motion for removing the Judges must be passed in the
same Session and presented to the President.
REMOVAL OF JUDGES OF SUPREME COURT- According to Article 124 of the
Constitution of India , Judges may be removed only on two grounds, namely on (1) Proved
misbehavior or (2) Proved incapacity. Here ―proved‖ word is very important. According to
Article 124(5), Parliament is empowered to make law and procedure regarding investigation of
charges levelled on judges. By using this power, Parliament has passed Judges (Inquiry) Act,
1968. According to section 3 of this Act, in case of Lok Sabha 100 members or in case of Rajya
Sabha 50 members as the case may be, may present a motion for removal to Speaker or
Chairperson as the case may be. After this prescribed Authority shall constitute a committee for
investigation of such charges. Such Committee shall be constituted of three members, namely (a)
one shall be chosen from among the Chief Justice and other Judges of the Supreme Court ;
(b) one shall be chosen from among the Chief Justices of the High Courts; and (c) one shall be
a person who is, in the opinion of the Speaker or, as the case may be, the Chairman, a
distinguished jurist. At the conclusion of the investigation, the Committee shall submit its
report to the Speaker or, as the case may be, to the Chairman. After this, resolution must be
passed with special majority from the House from where proceedings for removal has been
started. After this, in the same session, such resolution must also be passed from other house.
After passing from both houses, President shall remove such judge from the office.
Till now, even a single judge has not been removed from office. There is a big lacuna in the law.
In impeachment proceedings, there is no vital role of judiciary except investigation of charges.
Everything is decided with political considerations. For example case of Justice V. Ramaswami.
Even in case of Justice Soumitra Sen, resolution was passed from Rajya Sabha, but he ,
anticipating the result of Lok Sabha, resigned from the post and today, enjoying all the benefit
of retired judge. There are following some cases in detail-
(1)Justice V. Ramaswami of the Supreme Court-(1993)- Left parties and Bharatiya Janta
Party submitted a notice of motion to the Indian Parliament seeking his removal from office. In
regard to investigation and proof of misbehaviour alleged against Justice V. Ramaswami of the
100
Supreme Court, a three-member Committee was appointed under the Judges (Inquiry) Act54. It
comprised Justice P. B. Sawant of the Supreme Court as presiding officer, P. D. Desai, Chief
Justice, Bombay High Court and Justice O. Chinnappa Reddy, former judge of the
Supreme Court, as members. This Committee unanimously found the charges levelled against
Justice V. Ramaswami proved. The enquiry committee indicted the sitting Supreme Court judge
but Parliament absolved him. On 10May,1993, 401 Members were present in the Lok Sabha but
Congress boycott with 205 and in favour of motion , there was only 196 votes. The motion for
his removal in the Lok Sabha failed because of political considerations. Eminent lawyer Mr.
Kapil Sibal was defending Justice V. Ramaswami. Even after this event Justice V. Ramaswami
did not resign.
He was the first judge against whom Parliament initiated impeachment proceedings.
(2) Justice Soumitra Sen, Calcutta High Court –
Motion for removal- In 2009, 58 MPs of the Rajya Sabha moved a motion for impeachment of
Calcutta High Court Judge Soumitra Sen for his involvement in financial misappropriation.
Setting of Inquiry Committee- Probe panel was set up by Rajya Sabha chairman Hamid
Ansari in February 2009. It was headed by SC judge Justice B Sudershan Reddy and had as its
members Punjab and Haryana High Court Chief Justice Mukul Mudgal and noted Jurist Fali S.
Nariman. The Committee said the charges were duly proved.
Principle of Audi Alteram Partem-Justice Sen was given an opportunity to defend himself
through his counsel Mr. Subash Bhattacharya .
Passing of Resolution by Rajya Sabha- On 18 August 2011, Rajya Sabha passed the
impeachment motion by overwhelming majority of 189 votes in favour and 17 against.
Resignation of Justice S.Sen- Ahead of the impeachment motion against him in the Lok Sabha
on 5 & 6 September 2011, he resigned on 1 September 2011. In his resignation letter he said
that, "Since the Rajya Sabha has decided in its wisdom that he should not continue as a judge, he
has decided not to go to the Lok Sabha, and put in his papers instead.
Session of Lok Sabha on 5 & 6 September 2011- After resignation of Justice Soumitra Sen,
Lok Sabha decided to drop the impeachment proceedings against him because he had resigned.
Justice Soumitra Sen was first judge against whom Rajya Sabha passed resolution of
impeachment.
In this way , his matter would come under the category of voluntary resignation rather than
removal by President. He will be entitled for all benefit.
(3) Paul Daniel Dinakaran Premkumar was the Chief Justice of the Sikkim High Court.
On a complaint from 76 members of Parliament, the Rajya Sabha chairman admitted a motion
for the removal of Justice Dinakaran.
After that, Rajya Sabha chairman Hamid Ansari had in January 2010 constituted the three-
member panel comprising Supreme Court Justice Aftab Alam, Karnataka High Court Chief
54
Section 3 of Judges (Inquiry) Act, 1968
101
Justice J S Khehar and senior advocate P P Rao to examine the 12 charges framed in the notice
of motion adopted by the House. But P.D.Dinakaran resigned from his post on 29 July,2011.
Rank )and UPSC as 1st rank holder for Puducherry . Special thanks to Rajendran Veerappan,
Venkateshwaran, Gayathri, Mary, Arathi , Trapti Aggarwal and other person who liked,
commented and shared my post .
RIGHT TO PROPERTY IS A LEGAL RIGHT

KRISHNA MURARI YADAV55
Law related to ‗Right to property‘ may be divided into two parts. Law before 44 th Constitutional
Amendment, 1978 and after this Amendment. Article 19(1) (f) and Article 31 were repealed and
Article 300 A was inserted by 44th Constitutional Amendment, 197856.
Statement of Objects and Reasons of the 44th Constitutional Amendment – According to
Paragraph 3 of the Statement, ―The right to property, which has been the occasion for more
than one amendment of the Constitution, would cease to be a fundamental right and
become only a legal right.‖
According to Paragraph 5 of the Statement, ― Property, while ceasing to be a fundamental
right, would, however, be given express recognition as a legal right, provision being made
that no person shall be deprived of his property save in accordance with law.‖
Professor M.P. Jain, ―By this Amendment, Fundamental right to property was converted into
ordinary Constitutional right by enacting Article 300A.‖57
Professor V.N. Shukla, ―One of the reasons for the deletion of Articles 19(1)(f) and 31 and
insertion of Article 33A was to reduce the right to property from the status of fundamental right
55
ASSISTANT PROFESSOR, UNIVERSITY OF DELHI, DR. AMBEDKAR
G.L.C.PUDUCHERRY, MBSPC, GANGAPUR, VARANASI.
56
With effect from 20-06-1979.
57
Prof. M. P. Jain, Indian Constitutional Law, p. n. 1300, Wadhwa and Company Nagpur, New
Delhi, Fifth edition/2003.
102
to that of a legal right , that is, the right will be available against executive interference but not
against the legislative interference.‖58
Article Amendment Effect Government
Article 19 (1) 44th Constitutional Amendment, 1978 Repealed Janata Party
(f)
Article 19 (5) 44th Constitutional Amendment, 1978 Modified Janata Party
Article 31 44th Constitutional Amendment, 1978 Repealed Janata Party
st
Article 31A 1 Constitutional Amendment , 1951 Inserted Nehru Ji
st
Article 31B 1 Constitutional Amendment , 1951 Inserted Nehru Ji
Schedule IX 1st Constitutional Amendment , 1951 Inserted Nehru Ji
th
Article 31C 25 Constitutional Amendment , 1971 Inserted Indira Ji
Keshavananda Bharati vs. State of Kerala 1973 Indira Ji
nd
Article 31C 42 Constitutional Amendment , 1976 Modified Indira Ji
Minerva Mills Ltd. Vs. Union of India, 1980 Janata Party
th
Article 300A 44 Constitutional Amendment, 1978 Inserted Janata Party
Article 31A - Saving of laws providing for acquisition of estates, etc.-Article 31B- Validation of
Certain Acts and Regulation. Article 31C-Saving of laws giving effect to certain Directive
Principles. Articles 31A, 31B and 31 C are exception of Article 13.
Sanjeev Coke Mfg. Co. vs. Bharat Cooking Coal Limited 59The Supreme Court has held that
where Article 31C comes in, Article 14 goes out.
During national movement, our freedom fighters were inspired by socialist philosophy. They
believe that resources of country are for all persons and it must be enjoyed by all persons
irrespective of their religion, race, caste, sex and economic condition. Zamindari system was
main hurdle for development of nation. So in several States, this system was abolished and land
was acquired by States and thereafter, it was distributed among poor people. Such acquisition of
property was challenged. For the example, Bihar Land Reforms Act,1950 was held invalid by
Patna High Court in the case of Kameshwar Singh vs. State on the basis of Article 14( There was
no reasonable classification).
At that time, there was paucity of resources and Government was not in a position to pay huge
amount of money as a compensation. So by First Amendment, Articles 31A 31B and Schedule
IX were inserted to protect agrarian laws.
According to Article 31A, no law providing for the acquisition by the State of any estate or any
rights therein or for the extinguishment or medication of any such right shall be deemed to be
void on the ground that it is inconsistent with or takes away or abridges any of the rights
conferred by Article 14 and 19. It means such laws are exempted from Article 13 of the
58
Singh, M.P., V.N.Shukla‟s Constitution Of India, p.n.749 Eastern Book Company ,
Lucknow,10edition ,2001).
59
(1983)1 SCC147.
103
According to Article 31B, without prejudice to the generality of provisions of Article 31A, any
Acts and Regulations specified in the Ninth Schedule shall not be invalid on the grounds of
inconsistent with the provisions of Part III of the Constitution of India.
Relation between Fundamental Rights and Directive Principles of State Policy –Article 31C
By 25th Constitutional Amendment 1971, Article 31C60 was inserted. Article 31C gives Article
39(b) and (c) primacy over the fundamental rights guaranteed by Articles 14 and 19. It was also
provided that it cannot be challenged in any Court. It means these provisions are beyond the
power of Judicial Review.
This Amendment was challenged in Keshavananda Bharati vs. State of kerala, 1973. In this
case, Supreme Court held that supremacy of Article 39 (b) and (c) is constitutional but these are
not beyond the power of judicial review. Judicial Review is the basic structure of the
Constitution.
42nd Constitutional Amendment, 1976 it was provided that in case of conflict between
Fundamental Rights and DPSP, all DPSP shall prevail over Fundamental Rights. It was
challenged in Minerva Mills Ltd. Vs. Union of India, 1980. In this case court held that harmony
between FRs and DPSP are basic structure of the Constitution. The Court declared 42 nd
amendment regarding supremacy of DPSP unconstitutional. The Court however held that 31C as
originally introduced by 25th Amendment is constitutionally valid.
I.R. Coelho (dead) by LR vs. State of Tamil Nadu61- In this case, it was held that any law put
in Ninth Schedule after Keshawanand Bharati case would be subject matter of Judicial Review.
44th Constitutional Amendment, 1978- After the emergency period (1975-1977) Janata Party
won the election and Mr. Morarji Desai became Prime Minister of India. During his regime, 44th
Constitutional Amendment, was passed. By this Amendment, Article 19(1) (f) and Article 31
were abolished and restriction mentioned in Article 19(5) regarding right to property was also
removed. Article 300A was inserted. Effect of Article 300A is that right to property is a legal
rights. Here, Legal rights means that right which is available against only executive rather than
Legislative action. It means this may be modified or abolished Legislation.
RIGHT TO PROPERTY
S.N. BEFORE 44TH Constitutional After 44TH Constitutional
Amendment Amendment
1 Right to Property as a Fundamental Right Right to Property as a Legal Right
2 Fundamental Right is available against Legal Right is available only against
Executive as well as Legislative action executive action rather than Legislative
both. action.
3 Article 19(f) and 31- Existed Article 19(f) and 31- Omitted
4 Article 19 (5) Restrictions – Article19- (d) Article 19 (5) Restrictions – Article19-
(e) and (f) (d) and (e)
60
Article 31C-Saving of laws giving effect to certain Directive Principles.
61
2007 (1)SC 137
104
5 25Th Constitutional Amendment-Article All DPSP shall prevail over Articles 14

31C- Article 39 (b) and (c) shall prevail and 19.
over Articles 14,19 and 31. Minerva Mills Case. 42nd Amendment
42nd Amendment- All DPSP shall prevail unconstitutional while 25th Amendment
over Articles 14, 19 and 31. constitutional
Article 31A and Article 31C clearly mention that ―Notwithstanding anything contained in
Article 13…‖ certain laws regarding acquisition of property and implementation of Article 39 (b)
and (c) shall not be deemed to void on the ground that it is inconsistent with, or takes away or
abridges any of the rights conferred by Article 14 and 19.
Article 31C protects certain laws put in Schedule IX not only against Article 14 and 19 but also
all Article mentioned in Part III (Articles 12-35) of the Constitution of India.
ARTICLE 44-UNIFORM CIVIL CODE

―The State shall endeavour to secure for the citizens a uniform civil code throughout the
territory of India.”
S.N. YEAR NAME OF CASE IMPORTANT POINT
1 23April Mohd. Ahmed Khan CJI, Y.V. Chandrachud,
1985 vs. Shah Bano (1) It is a matter of regret that Article 44 of our
Begum And Ors. Constitution has remained a dead letter.
First case on (2) It provides that ―The State shall endeavour to
‗Uniform Civil Code‘ secure for the citizens a uniform civil code
throughout the territory of India‖. There is no
evidence of any official activity for framing a
common civil code for the country.
(3) A Common Civil Code will help the cause of
national integration by removing disparate
loyalties to laws which have conflicting ideologies.
(4)The Supreme Court has ruled that a Muslim
husband is liable to pay maintenance to the
divorced wife beyond the Iddat period.
2 10 May, Ms. Jordan (1) A comparison of the relevant provisions of the
62
ASSISTANT PROFESSOR, MBSPC, GANGAPUR, VARANASI. UNIVERSITY OF
DELHI, DR. AMBEDKAR G.L.C.PUDUCHERRY,
105
1985 Diengdeh vs. S.S. Christian Marriage Act 1872, Hindu Marriage Act
UGC Chopra 1955, Special Marriage Act 1954, Parsi Marriage
NET Need of „Uniform and Divorce Act 1936, Dissolution of Muslim
2017 III Civil Code‟ Marriage Act, 1939, show that the law relating to
Paper especially in respect judicial separation, divorce and nullity of marriage
of marriage and is far, far from uniform.
divorce. (2) Surely the time has now come for a complete
Necessity of reform of the law of marriage and make a uniform
irretrievable break law applicable to all people irrespective of religion
down of marriage or caste. It appears to be necessary to introduce
and mutual consent irretrievable break down of marriage and mutual
as grounds of divorce consent as grounds of divorce in all cases.
in all cases. (3) We suggest that the time has come for the
intervention of the legislature in these matters to
provide for a uniform code of marriage and
divorce.
3 6 April, Maharshi Avadhesh Supreme Court had specifically declined to issue a
1993 vs. Union Of India . writ of mandamus directing the Union of India to
Supreme Court consider the question of enacting a common Civil
denied to issue Code for all citizens of India holding that the issue
mandamus‟ raised being a matter of policy, it was for the
Legislature to take effective steps as the Court
cannot legislate.
4 10 May SMT. SARLA Facts-These are four petitions under Article 32 of
1995 MUDGAL, the Constitution of India. SMT. SARLA MUDGAL,
PRESIDENT, is the President of "KALYANI"- a registered
KALYANI& ORS. society - which is an organisation working for the
Vs. UNION OF welfare of needy-families and women in distress.
INDIA & ORS. (1) RELATION BETWEEN ARTICLE 44 AND
ARTICLES 25 TO 28
Article 44 is based on the concept that there is no
necessary connection between religion and personal
law in a civilised society. Article 25 guarantees
religious freedom whereas Article 44 seeks to divest
religion from social relations and personal law.
Marriage, succession and like matters of a secular
character cannot be brought within the guarantee
enshrined under Articles 25, 26 and 27. The
personal law of the Hindus, such as relating to
marriage, succession and the like have all a
sacramental origin, in the same manner as in the
case of the Muslims or the Christians. The Hindus
alongwith Sikhs, Buddhists and Jains have forsaken
their sentiments in the cause of the national unity
and integration, some other communities would not,
though the Constitution enjoins the establishment of
106
a "common civil Code" for the whole of India.

(2) Criticism of Government-
The Successive Governments till-date have been

wholly re-miss in their duty of implementing the
constitutional mandate under Article 44 of the
(3) Direction for Government of India through the

Prime Minister
Supreme Court, requested the Government of India

through the Prime Minister of the country to have a
fresh look at Article 44 of the Constitution of India
and "endeavour to secure for the citizens a uniform
civil code throught the territory of India".
Supreme Court further direct the Government of

India through Secretary, Ministry of Law and
Justice to file an affidavit of a responsible officer in
this Court in August, 1996 indicating therein the
steps taken and efforts made, by the Government of
India, towards securing a "uniform civil code" for
the citizens of India.
(4)Second Marriage was void- Supreme Court held

that the second marriage of a Hindu- husband after
conversion to Islam, without having his first
marriage dissolved under law, would be invalid.
The second marriage would be void in terms of the
provisions of Section 494 IPC and the apostate-
husband would be guilty of the offence
under Section 494 IPC.
5 17 Pannalal Bansilal ―In a pluralist society like India in which people
January, Pitti & Ors. Etc vs have faith in their respective religions, beliefs or
1996 State Of Andhra tenets propounded by different religious or their
Pradesh & Anr offshoots, the founding fathers, while making the
Constitution, were confronted with problems to
―0Uniform Civil unify and integrate people of India professing
Code‖ perhaps may different religious faiths, born in different castes,
be counter- sex or Sub-section s in the society speaking
productive to unity different languages and dialects in different
and integrity of the religions and provided a secular Constitution to
nation. integrate all sections of the society as a united
Bharat. The directive principles of the Constitution
themselves visualize diversity and attempted to
107
foster uniformity among people of different faiths.

A uniform law, though is highly desirable,
enactment thereof in one go perhaps may be
counter-productive to unity and integrity of the
nation. In a democracy governed by rule of law,
gradual progressive change and order should be
brought about. Making law or amendment to a law
is a slow process and the legislature attempts to
remedy where the need is felt most acute. It would,
therefore, be inexpedient and incorrect to think
that all laws have to be made uniformly applicable
to all people in one go. The mischief or defect
which is most acute can be remedied by process of
law at stages.
6 5 April, Lily Thomas, Etc. The Court has retraced its steps and has stated that it
2000 Etc. vs. Union Of never issued any directions for the codification of a
India & Ors. common civil code.
7 22 August, Sayara Bano Begum Constitutional debate regarding ‗Uniform Civil
2017 vs. Union of India Code‘ was discussed thoroughly.
UGC Gujarat Women This case is related to ‗Uniform Civil Code‘
NET Workers
2017 III Association Case
Paper
24 Ahmedabad Women
February, Action Group ... vs
1997 Union Of India on 24
February, 1997
14/02/2006 Seema vs. Ashwani. Compulsory registration of Marriages.
It was not This is one step JJ. Arijit Pasayat & S.H. Kapadia, ―We are of the
related to towards ‗Uniform view that marriages of all persons who are citizens
‗Uniform Civil Code‘. of India belonging to various religions should be
Civil made compulsorily registrable in their respective
Code‘. States, where the marriage is solemnized.‖
108
ARTICLE 32-REMEDIES FOR ENFORCEMENT OF RIGHTS CONFERRED BY PART

III
Article 32 is based on the principle of ‗Ubi jus ibi remedium‘. ‗Ubi jus ibi remedium‘ means
where is right, there is remedy. There are six fundamental rights one of them is Right to
Constitutional Remedies enshrined in Article 32 of the Constitution of India. According to Baba
Saheb Bhimrao Ambedkar, Article 32 is the heart and soul of the Constitution of India. Baba
Saheb knew very well that declaration of rights without remedy would be meaningless. So right
to remedy is also a fundamental right and Supreme Court cannot deny from providing remedies
in case of violation of fundamental rights.
There are four clauses of Article 32 which are following-
Clause (1) Right to move the Supreme Court
Clause (2) Power of the Supreme Court
Clause (3) Power of Parliament to confer the power of Supreme Court to other Court
Clause (4) Suspension of right to move the Supreme Court
ARTICLE 32. REMEDIES FOR ENFORCEMENT OF RIGHTS CONFERRED BY THIS

PART.
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed.
63
109
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in
the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever
may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for
by this Constitution.
CLAUSE- 1 Right to move the Supreme Court
Clause 1 of Article 32 is very important. This clause does not provide who can file appropriate
proceedings for the enforcement of the fundamental rights. It does not mention that only victim
or his representative or his authorised agent can file appropriate proceeding before the Supreme
Court. So any person may file appropriate proceeding before the Court. It is the reason for
development of ‗Public Interest Litigation‘ in India.
MEANING OF APPROPRIATE PROCEEDINGS –
Interpretation of ―APPROPRIATE PROCEEDINGS‖ word is a bane for Indian Democracy
especially in the field of human rights and environmental laws. In the initial stage, it was
interpreted in a very narrow sense. Later on, it was interpreted in a wider sense and Principle of
―Locus Standi‖ ( Right or capacity to bring an action or to appear in a court) was denied and
Public Interest Litigation was accepted. According to Principle of Locus Standi means only that
person can stand before the Court whose right has been violated. We can say that Public Interest
Litigation is an exception of Principle of ―Locus Standi‖. The Court said that ‗appropriate
proceeding‘ is not confined only to particular format. Even a letter which is containing clear
information regarding violation of human rights would be treated appropriate proceedings. In the
case of People‘s Union for Democratic Rights and Ors. vs. Union of India & Ors 64, it was laid
down that Public Interest Litigation could be initiated not only by filing formal petitions in the
Supreme Court (Article 32) or High Court (Article 226) as the case may be but even by sending
letters and telegrams so as to provide easy access to Court. Concept of public interest litigation
had its origin in the United States.
CLAUSE- 2 Power of the Supreme Court

There are three powers of Supreme Court for enforcement of Fundamental Rights, namely, (1)
Power to issue of Directions, (2) Power to issue of Orders (3) Power to issue of Writs
POWERS OF SUPREME COURT
1 Power to issue of Directions,
2 Power to issue of Orders
3 Power to issue of Writs
Kinds of Writs Origin of concept of writ is Britain. It was mainly power
64
Supreme Court, Date of Judgment, 18 September, 1982.
110
of King. There are several types of writs. Near about 25

types of writs. But, in our Constitution, only important
writs have been mentioned. For our Constitution, there are
5 types of writs, namely (1) Habeas Corpus (2)Mandamus
(3) Quo warranto (4) Prohibition (5) Certiorari
(I)Writ of Habeas Corpus To produce the corpus (body) before the Court.
(II)Writ of Mandamus Command for to do or omit to do
(III)Writ of Quo warranto What is your authority to hold particular public post?
(IV)Writ of Prohibition It is issued only against Court or Quasi-judicial Body.
Prohibition of authority when matter is pending
(V)Writ of Certiorari It is issued only against Court or Quasi-judicial Body. To
certify (to correct) when matter is not pending
CLAUSE- 3 Power of Parliament to confer the power of Supreme Court to other Court-
Parliament may confer the power of Supreme Court to other Court but cannot curtail the power
of Supreme Court mentioned in Clause 2 of Article 32. Parliament has also not power to curtail
the right of person which has been conferred under clause 1 of Article 32 to move the Supreme
Court.
CLAUSE- 4 Suspension of right to move the Supreme Court is not allowed except according to
the provisions of the Constitution of India. For example, according to Article 359, fundamental
right may be suspended.
LEADING CASES RELATED TO PUBLIC INTEREST LITIGATION
Justice P.N. Bhagwati,
“Public Interest Litigation is a strategic arm of the legal aid movement which is intended to
bring justice within the reach of the poor masses who constitute the low visibility area of
humanity.‖65
Year of Cases Name of Cases Contents

PIL word was not used. ‗Union was allowed,
First Case on PIL.
technically he was not fit under the category of
‗Locus Standi‘ in this case.
10 March, Mumbai Kamgar First Case on PIL.
1976 Sabha, Bombay vs. (1) V. R. Krishna Iyer, ―Technically, the Union cannot
M/S Abdulbhai be the appellant, the workmen being the real
65
People‘s Union for Democratic Rights vs. UOI. Date of judgment 18 September 1982,
Supreme Court,
111
Faizullabhai & Ors. parties. Welfare of workers being a primary concern of

V. R. Krishna Iyer our Constitution (Part IV), we have to understand and
interpret the new norms of procedure at the pre-
litigative and litigative stages, conceptually
recognizing the representative capacity of labour
unions. We regard this appeal as one by the workmen
compendiously projected and impleaded through the
Union.‖ Union was allowed.
(2) Where two judicial choices are available, the
construction in conformity with the social philosophy
of Part IV has preference. (3) The duties can be
promoted by constitutional means. Article 51A can be
used to interpret ambiguous statutes.
12 February, Hussainara Khatoon vs. Under-trial Prisoners – To vindicate the right of
1979 Home Secretary, State personal liberty under Article 21 of the Bihar under
of Bihar, trials started with an article written by K. M. Rustam Ji
Justice P.N. Bhagwati, in the Indian Express where he pointed out how under
trial prisoners were languishing in the jails in Bihar for
years without trial. An advocate, Kapil Hingorani,
then filed a petition under Article 32 in the Supreme
Court to protect the personal liberty of the under trials
prisoners.
(1) The Court held, ―Right to a speedy trial‖ a
fundamental right is implicit in the guarantee of life
and personal liberty enshrined in Article 21 of the
(2) A procedure which keeps large number of
people behind bars without trial for long, cannot
possibly be regarded as ―reasonable, just or fair‖ so
as to be in conformity with the requirement of Article
21. It is necessary, therefore, that the law as enacted by
the Legislature and as administered by the courts must
radically change its approach to pre-trial detention and
ensure ―reasonable, just or fair‖ procedure which has
a creative connotation after the decision of the
Supreme Court in Maneka Gandhi‘s case.
(3) One reason why our legal and judicial system
continually denies justice to the poor by keeping them
for long years in pre-trial detention is the highly
unsatisfactory bail system, which suffers from a
property oriented approach. It proceeds on the
erroneous assumption that risk of monetary loss is the
only deterrent against fleeing from justice.
9 March Hussainara Khatoon vs.
1979, Home Secretary, State
4 May, 1979 of Bihar,
112
Justice P.N. Bhagwati,

29 July, 1980 Municipal Council, Justice Krishna Iyer, ―If the centre of gravity of
Ratlam vs. Shri justice is to shift, as the Preamble to the Constitution
Vardhichand & Ors mandates, from the traditional individualism of locus
standi to the community orientation of public interest
litigation, these issues must be considered. In that
sense, the case before us between the Ratlam
Municipality and the citizens of a ward, is a path-finder
in the field of people's involvement in the justicing
process, sans which as Prof. Sikes points out,(1) the
system may crumble under the burden of its own
insensitivity. The key question we have to answer is
whether by affirmative action a court can compel a
statutory body to carry out its duty to the community
by constructing sanitation facilities at great cost and on
a time-bound basis.‖
14November, Akhil Bharatiya Soshit Justice Krishna Iyer said, ―Whether the petitioners
1980. First Karamchari Sangh belong to a recognised union or not, the fact remains
time (Railway) vs. Union Of that a large body of persons with a common grievance
unrecognized India And Ors . ( I may exists and they have approached this Court under Art.
association be wrong, but I think 32. Our current processual jurisprudence is not of
was allowed that first time in Indian individualistic Anglo- Indian mould. It is broad-based
to maintain Law, ‗public interest and people-oriented, and envisions access to justice
writ petition litigation‘ word was through 'class actions', 'public interest litigation', and
under Article used. No authentic 'representative proceedings'.
32. information).
Apprehension of misuse
of PIL
30 S.P. Gupta vs. Union of Justice P.N. Bhagwati, ―These writ petitions filed in
December, India And Anr. different High Courts and transferred to this Court
1981 It is interesting to note under Article 139 of the Constitution raise issues of
Apprehension that the concept of great constitutional importance affecting the
of misuse of public interest litigation independence of the judiciary and they have been
PIL had its origin in the argued at great length before us‖.
United States. Apprehension of misuse of PIL- P.N. Bhagwati, J. ―we
must be careful to see that the member of the public,
who approaches the Court in cases of this kind, is
acting bona fide and not for personal gain or private
profit or political motivation or other oblique
consideration. The Court must not allow its process to
be abused by politicians and others to delay legitimate
administrative action or to gain a political objective.
Andre Rabie has warned that ―political pressure
groups who could not achieve their aims through the
administrative process‖ and we might add, through the
political process, ―may try to use the courts to further
113
their aims.‖ These are some of the dangers in public

interest litigation which the court has to be careful to
avoid. It is also necessary for the court to bear in mind
that there is a vital distinction between locus standi and
justiciability and it is not every default on the part of
the State or a public authority that is justiciable. The
court must take care to see that it does not overstep
the limits of its judicial function and trespass into
areas which are reserved to the Executive and the
Legislature by the Constitution. It is a fascinating
exercise for the Court to deal with public interest
litigation because it is a new jurisprudence which the
court is evolving, a jurisprudence which demands
judicial statesmanship and high creative ability. The
frontiers of public law are expanding far and wide and
new concepts and doctrines which will change the
complexion of the law and which were so far as
embedded in the womb of the future, are beginning to
be born.
Purpose of PIL Legal system is for all, not only for rich person. No
need to consider so called champions of human rights
or self-styled human right activist frown upon it (PIL)
as waste of time of the highest court
18September People‘s Union for People‘s Union for Democratic Rights is an
1982 Democratic Rights vs. organization formed for the purpose of protecting
Asiad UOI. democratic rights. It commissioned three social
Projects Case Justice P.N. Bhagwati, scientists for the purpose of investigating and inquiring
Letter The Supreme Court into the conditions under which the workmen engaged
treated the letter as a in the various Asiad Projects were working. Based on
writ petition. the report made by these three social scientists after
Violation of various personal investigation and study. The petitioner
labour laws in relation addressed a letter to Hon'ble Mr. Justice
to workmen employed Bhagwati complaining of violation of various labour
in the construction laws by the respondents and/or their agents and
work connected with the seeking interference by the Supreme Court to render
Asian Games like social justice by means of appropriate directions to
Constitution of India, the affected workmen. The Supreme Court treated the
1950 Arts. 14, 23 and letter as a writ petition on the judicial side and
24,Minimum wages Act, issued notice to the Union of India, Delhi
1948 and The Administration and the Delhi Development Authority.
employment of Children Justice P.N. Bhagwati, ― Public Interest Litigation is
Act, 1938 and Contract a strategic arm of the legal aid movement which is
Labour (Regulation and intended to bring justice within the reach of the
Abolition) Act 1970 . poor masses who constitute the low visibility area of
Importance of PIL- It is humanity.‖
through public interest Purpose of PIL- Public interest litigation is brought
114
litigation that the before the court not for the purpose of enforcing the
problems of the poor are right of one individual against another as happens in
now coming to the fore the case of ordinary litigation, but it is intended to
front and the entire promote and vindicate public interest which demands
theatre of the law is that violations of constitutional or legal rights of large
changing. It holds out numbers of people who are poor, ignorant or in a
great possibilities for the socially or economically disadvantaged position
future. This writ petition should not go unnoticed and unredressed.
is one such instance of If the Fundamental Right of the poor and helpless
public interest litigation. victims of injustice is sought to be enforced by public
Those who are decrying interest litigation, the so called champions of human
public interest litigation rights frown upon it as waste of time of the highest
do not seem to realise court in the land, which, according to them, should not
that courts are not meant engage itself in such small and trifling matters.
only for the rich and the Moreover, these self-styled human rights activists
well-to-do, for the forget that civil and political rights, priceless and
landlord and the gentry, invaluable as they are for freedom and democracy,
for the business magnate simply do not exist for the vast masses of our people.
and the industrial Large numbers of men, women and children who
tycoon, but they exist constitute the bulk of our population are today living a
also for the poor and the sub-human existence in conditions of abject poverty:
down-trodden the have- utter grinding poverty has broken their back and sapped
nots and the their moral fibre. They have no faith in the existing
handicapped and the social and economic system. What civil and political
half-hungry millions of rights are these poor and deprived sections of humanity
our countrymen. going to enforce ?
There is a misconception in the minds of some lawyers,
journalists and men in public life that public interest
litigation is unnecessarily cluttering up the files of the
court and adding to the already staggering arrears of
cases which are pending for long years and it should
not therefore be encouraged by the court. This is, to our
mind, a totally perverse view smacking of elitist and
status quoist approach.
PIL may initiated by formal petitions, letters and

telegrams
1982 People‘s Union for It was laid down that Public Interest Litigation could
Letters and Democratic Rights vs. be initiated not only by filing formal petitions in the
telegrams UOI. High Court but even by sending letters and telegrams
so as to provide easy access to Court.
Rebukement of State Supreme Court rebuked the State Government for
Government by raising preliminary objection and said that State
Supreme court for Government should take it an opportunity to take care
raising preliminary of its subjects.
objection.
115
16 Bandhua Mukti The Supreme Court entertained a matter concerning

December, Morcha vs. Union of release of bonded labour raised be an Organization i.e.
1983 India Bandhua Mukti Morcha through ―Letter‖. The
Case was The petitioner, an petitioner also mentioned in the letter the names of the
brought organisation dedicated stone quarries and particulars of labourers who were
through to the cause of release working as bonded labourers and prayed that a writ
‗Letter‘. of bonded labourers in be issued for proper implementation of the various
Supreme the country, addressed a provisions of the social welfare legislations. The
Court letter to Hon'ble Supreme Court rebuked the State government for
rebuked the Bhagwati, J. alleging: raising a preliminary objection to stall an inquiry by the
State (1) that there were a Court into the following words,
Government large number of Hon'ble Bhagwati, J. ― The learned Additional
for raising labourers from different Solicitor General appearing on behalf of the State of
preliminary parts of the country Harynana as also Mr. Phadke on behalf of one of the
objection and who were working in mine lessees contended that even if what is alleged by
said that some of the stone the petitioner in his letter which has been treated as a
State quarries situate in writ petition, is true, it cannot support a writ petition
Government district Faridabad, State under Article 32 of the Constitution, because no
should take it of Haryana under fundamental right of the petitioner or of the workmen
an "inhuman and on whose behalf the writ petition has been filed, can be
opportunity intolerable conditions; said to have been infringed. This contention is, in our
to take care (2) that a large number opinion, futile and it is indeed surprising that the
of its of them were bonded State Government should have raised it in answer to
subjects. labourers. the writ petition. We can appreciate the anxiety of the
mine lessees to resist the writ petition on any ground
available to them, be it hyper-technical or even
frivolous, but we find it incomprehensible that the State
Government should urge such a preliminary objection
with a view to stifling at the thresh-hold an inquiry by
the Court as to whether the workmen are living in
bondage and under inhuman conditions. We should
have thought that if any citizen brings before the
Court a complaint that a large number of peasants or
workers are bonded serfs or are being subjected to
exploitation by a few mine lessees or contractors or
employers or are being denied the benefits of social
welfare laws, the State Government, which is, under
our constitutional scheme, charged with the mission
of bringing about a new socioeconomic order where
there will be social and economic justice for every one
and equality of status and opportunity for all, would
welcome an inquiry by the court, so that if it is found
that there are in fact bonded labourers or even if the
workers are not bonded in the strict sense of the term
as defined in the Bonded Labour System (Abolition)
Act 1976 but they are made to provide forced labour
116
or are consigned to a life of utter deprivation and

degradation such a situation can be set right by the
State Government. Even if the State Government is on
its own inquiry satisfied that the workmen are not
bonded and are not compelled to provide forced labour
and are living and working in decent conditions with
all the basic necessities of life provided to them, the
State Government should not baulk an inquiry by the
court when a complaint is brought by a citizen, but it
should be anxious to satisfy the court and through the
court the people of the country, that it is discharging
its constitutional obligation fairly and adequately and
the workmen are being ensured social and economic
justice. We have on more occasions than one said that
public interest litigation is not in the nature of
adversary litigation but it is a challenge and an
opportunity to the government and its officers to make
basic human rights meaningful to the deprived and
vulnerable sections of the community and to assure
them social and economic justice which is the signature
tune of our Constitution. The Government and its
officers must welcome public interest litigation,
because it would provide them an occasion to examine
whether the poor and the down-trodden are getting
their social and economic entitlements or whether they
are continuing to ermine victims of deception and
exploitation at the hands of strong and powerful
sections of the community and whether social and
economic justice has become a meaningful reality for
them or it has remained merely a teasing illusion and a
promise of unreality, so that in case a the complaint in
the public interest litigation is found to be true, they
can in discharge of their constitutional obligation root
out exploitation and injustice and ensure to the weaker
sections their rights and entitlements.
M.C. Mehta Supreme Court vs. Whether ‗Letter‘ is necessary to address Supreme
And Anr vs ‗Particular Judge‘. Court or address to ‗particular judge‘ is sufficient. No
Union Of Generally Supreme need of affidavit.
India & Ors. Court. But in the case of
20 December, women, children,
1986 suppressed class, letter
to particular judge is
sufficient.
20 M.C. Mehta And Anr We must not forget that letters would ordinarily be
December, vs Union Of India & addressed by poor and disadvantaged persons or by
1986 Ors. This case was social action groups who may not know the proper
117
Letter originated in the

form of address. They may know only a particular
They may aftermath of oleum gas
Judge who comes from their State and they may
know only a leak from Shriram Food
therefore address the letters to him. If the Court
particular and Fertilisers Ltd. were to insist that the letters must be addressed to the
Judge who complex at Delhi. This
court, or to the Chief Justice and his companion
comes from gas leak occurred soon
Judges, it would exclude from the judicial ken a large
their State after the infamous
number of letters and in the result deny access to
and they may Bhopal gas leak and justice to the deprived and vulnerable sections of the
therefore created a lot of panic in
community. We are therefore of the view that even if a
address the Delhi. Jurisprudence--
letter is addressed to an individual Judge of the court, it
letters to Law--Should keep should be entertained, provided of course it is by or on
him. pace with changing behalf of a person in custody or on behalf of a woman
Socio-economic or a child or a class of deprived or disadvantaged
norms---Where a law of
persons. We may point out that now there is no
the past does not fit in to
difficulty in entertaining letters addressed to individual
the present context, justice of the court, because this Court has a Public
Court should evolve Interest Litigation Cell to which all letters addressed to
new law. Justice
the Court or to the individual justices are forwarded
Bhagwati denied the and the staff attached to this Cell examines the letters
principle of strict
and it is only after scrutiny by the staff members
liability and evolvedattached to this Cell that the letters are placed before
new principle i.e.
the Chief Justice and under his direction, they are listed
Principle of Absolutebefore the Court. We must therefore hold that letters
Liability. addressed to individual justice of the court should not
be rejected merely because they fail to conform to the
preferred form of address. Nor should the court adopt
a rigid stance that no letters will be entertained unless
they are supported by an affidavit. If the court were to
insist on an affidavit as a condition of entertaining the
letters the entire object and purpose of epistolary
jurisdiction would be frustrated because most of the
poor and disadvantaged persons will then not be able to
have easy access to the Court and even the social action
groups will find it difficult to approach the Court. We
may point out that the court has so far been entertaining
letters without an affidavit and it is only in a few rare
cases that it has been found that the allegations made in
the letters were false. But that might happen also in
cases where the jurisdiction of the Court is invoked in a
regular way:
Mohan Lal Sharma vs. Letters in any form including postcards and telegrams
State of U.P.66 addressed to any judge have been entertained as
appropriate proceeding.
Some Important Cases
66
(1989)2SCC600
118
198630Dec. M.C.Mehta vs. UOI Justice Kuldip Singh,(14 December 1988 – 21

(Taj Trapezium Case) December 1996). Supreme Court issued several
guidelines to control pollution from industries in
Mathura to protect Taj Mahal.
1987 M.C.Mehta vs. UOI. Forty three respondents admitted that Tanneries
22 Sep (Kanpur Tanneries discharged their trade effluents into the sewage nallah
Case) which led to the municipal sewage plant before they
were thrown into the river Ganga. Supreme Court
passed an order for closing of Tanneries and said that
in spite of several statutes government did not take
action .It passed directions to prevent pollutions from
tanneries.
1991 Subhash Kumar vs. Article 21-Right to live includes right to enjoyment of
9Jan. State of Bihar pollution free water and air. If anything endangers or
(Quality of life) impairs that quality of life in derogation of laws, a
citizen has a right to invoke Article 32 for removing
pollution of water or air which may be detrimental to
the quality of life.
Indian Council for The petitioner, the Indian Council for Enviro-Legal
199613Feb Enviro-Legal Action vs. Action brought this action to prohibit and remedy the
UOI pollution caused by several chemical industrial plants
(Bichhri village Case) in Bichhri village, Udaipur District, Rajasthan. The
Polluter Pays Principle principle of ‘Polluter Pays‘ was applied in this case
and Absolute Liability inasmuch as "the incident involved deliberate release of
untreated acidic process wastewater and negligent
handling of waste sludge knowing fully well the
implication of such acts." "The cost of damage to be
disbursed to the affected villagers is estimated at
Rs.342.8 lakhs and remediation of impacted well
waters and soil at Rs.3738.5 lakhs. This cost needs to
be borne by the management of the industry in keeping
with the Polluter Pays principle and the doctrine of
Absolute liability, as applied to Sri Ram Food and
Fertilizers Industry in the case of Oleum leak in 1985."
1996 Vellore Citizens Welfare Pollution which was being caused by enormous
28 Aug Forum vs. UOI. discharge of untreated effluent by the tanneries and
J.Kuldip Singh (All other industries in the State of Tamil Nadu . It was
three principles was stated that the tanneries are discharging untreated
discussed and along effluent into agricultural fields to, road-Sides, water
with two third principle ways and open lands. The untreated effluent was
namely Sustainable finally discharged in river Palar which was the main
Development was source of water supply to the residents of the area.
accepted. "The Precautionary Principle" and "The Polluter Pays"
principle are essential features of "Sustainable
Development". The "Onus of proof" is on the actor or
the developer/industrial to show that his action is
119
environmentally benign.
1996 M.C. Mehta vs. Kamal Mr. Kamal Nath was Minister of environment and
13Dec. Nath. Kuldip Sing, Forests. Kamal Nath's dream of having a house on the
Public Trust Doctrine bank of the Beas in the shadow the bank of the Beas in
the of the snow-capped Zanskar ranges ( Kullu-Manali,
Himachal Pradesh). The Court said ―We see no reason
why the public trust doctrine should not be expanded to
include all eco-systems operating in our natural
resources. The public trust doctrine is a part of the law
of the land. Our legal system - based on English
Common Law - includes the public trust doctrine as
part of its jurisprudence. The State is the trustee of all
natural resources which are by nature meant for public
use and enjoyment. Public at large is the beneficiary of
the sea- shore, running waters, airs, forests and
ecologically fragile lands. The State as a trustee is
under a legal duty to protect the natural resources.
These resources meant for public use cannot be
converted into private ownership.‖
200518 July In Re: Noise Pollution; W.P.was filed by Shri Anil K. Mittal, an engineer by
Restricting use of profession moving the Court pro bono publico. The
loudspeakers. CJI immediate provocation for filing the petition was that a
R.C.Lahoti 13 year old girl was a victim of rape. Her cries for help
sunk and went unheard due to blaring noise of music
over loudspeaker in the neighborhood. The victim girl,
later in the evening, set herself ablaze and died of
100% burn injuries. Article 21 includes freedom from
noise. Complete ban on bursting sound between 10
P.M. to 6A.M.
200613Feb. Intellectual Forum IN the name of urban development , environment
Tirupathi vs. State of cannot be destroyed.
A.P.
2012 Research Foundation for Disposal of hazardous and toxic substances.
Science vs.UOI
BAN ON SMOKING IN PUBLIC PLACE
2002 Murli S. Deora vs.UOI Non-smoker should not be deprived of his life without
due process of law. Non-smokers are affected by
various disease. It is indirectly affect to right to life.
There is no reason to compel noon-smokers to be
helpless victims of air pollution. S.C. banned on
smoking on public place.
Protection against illegal arrest , detentions and
custodial death
24 March, Smt. Nilabati Behera Compensation 1,50,000 Rs.
1993 Alias Lalit ... vs State Of Letter of a mother informing Supreme Court death
Letter Orissa And Ors of her son in custody was treated as PIL.
120
18 December, Shri D.K. Basu, Ashok….Supreme Court propounded detailed guidelines for
1996 Letter K. Johri vs State Of arrest and detention.
was treated as West Bengal, State OfD.K. Basu on 26th August, 1986 addressed a letter to
a writ petition U.P the Chief Justice of India drawing his attention to
certain news items published in the Telegraph dated 20,
21 and 22 of July, 1986 and in the Statesman and India
express dated 17th August, 1986 regarding deaths in
police lock-ups and custody.
2000 PIL Chandrima Das vs. Rape with Bangladeshi Woman. Compensation was
under Article Chairman, Railway allowed by High Court and decision was Supreme
226 Board (In High Court ) Court.
MISUSE OF PIL
28 August, Janata Dal vs. While it is the duty of this Court to enforce
1992 H.S.Chowdhary fundamental rights, it is also the duty of this Court to
ensure that this weapon under Article 32 should not be
misused or per milled to be misused creating a
bottleneck in the Superior Court preventing other
genuine violation of fundamental rights being
considered by the Court.
Mr. H.S. Chowdhary has no locus standi (a) to file the
petition under Article 51-A as a public interest litigant
praying that no letter rogatory/request be issued at the
request of the CBI and he be permitted to join the
inquiry before the Special Court which on February 5,
1990 directed issuance of letter rogatory/request to the
Competent Judicial Authorities of the Confederation of
Switzerland.
RELATION BETWEEN FUNDAMENTAL RIGHTS & D.P. OF STATE POLICY
Grounds Fundamental Rights –Part III (12- DPSP -Part IV (36-51)
35)
Definition of State Article 12. Definition- In this Part, Article 36. Definition In this Part,
Article 12 and unless the context otherwise unless the context otherwise requires,
Article 36 requires, ―the State‘‘ includes the ―the State‖ has the same meaning as
Government and Parliament of in Part III. It means for the purpose
India and the Government and the Part IV also unless the context
Legislature of each of the States otherwise requires, ―the State‘‘
and all local or other authorities includes the Government and
within the territory of India or Parliament of India and the
under the control of the Government and the Legislature of
Government of India each of the States and all local or
other authorities within the territory
of India or under the control of the
67
121
Government of India.
Articles 13&32 According to Article 13, any law There are three parts of Article 37-
(Justiciable) whether before or after the (1) Non-Justiciable- The provisions
and Article 37 commencement of the Constitution, contained in this Part shall not be
(Non-Justiciable) in case of inconsistency, up to the enforceable by any court,
extent of inconsistency would be (2) Importance of DPSP- The
void. According to Article 32 (1), principles therein laid down are
the right to move the Supreme nevertheless fundamental in the
Court by appropriate proceedings governance of the country and
for the enforcement of the rights (3)Duty of State- It shall be the duty
conferred by this Part is guaranteed of the State to apply these principles
in making laws.
Rigid view State of Madras vs. Champakam The directive principles of the State
9April 1951 Dorairajan policy, which by article 37 are
DPSPs are Relation between Article 29(2) and expressly made unenforceable by a
subsidiary to FRs. Article 46. Court, cannot override the provisions
The directive principles of State found in Part III which,
policy have to conform to and notwithstanding other provisions, are
run as subsidiary to the Chapter expressly made enforceable by
of Fundamental Rights. appropriate Writs, Orders or
directions under article 32. The
chapter of Fundamental Rights is
sacrosanct and not liable to be
abridged by any Legislative or
Executive Act or order, except to the
extent provided in the appropriate
article in Part III.
23 April, 1958 Mohd. Hanif Quareshi v. The The directive principles of State
State of Bihar. Principles laid policy have to conform to and run
down in Champakam Case were as subsidiary to the Chapter of
reiterated in this case. Fundamental Rights.
22 May, In Re: The Kerala Education Bill, Nevertheless, in determining the
1958―Harmonious ... vs. Unknown . Primacy of FRs scope and ambit of the fundamental
Construction.‖ were accepted but it was laid down rights relied on by or on behalf of
that attempt should be done for any person or body the court may not
―Harmonious Construction.‖ entirely ignore these directive
principles of State policy laid down
in Part IV of the Constitution but
should adopt the principle of
harmonious construction and should
attempt to give effect to both as
much as possible.
25th Constitutional By 25th Constitutional Article 31C gives Article 39(b) and
Amendment, 1971 Amendment 1971, Article 31C68 (c) primacy over the fundamental
68
Article 31C-Saving of laws giving effect to certain Directive Principles.
122
Article 39(b) & (c) was inserted. First time, DPSPs rights guaranteed by Articles 14, 19
prevails over were prevailed over fundamental and 31.
Articles 14, 19 and rights.
31.
24 April 1973 Keshavananda Bharati vs. State of 25th Constitutional Amendment was
Kerala declared constitutional. FRs and
It can well be said that DPSPs DPSPs constitute the conscience of
prescribed the goal to be attained the Constitution ….There is
and the FRs lay down the means antithesis between both …and can
by which that goal is to be be applied together. They are
achieved. supplementary and complimentary
to each other.
42nd Supremacy of all DPSPs In case of conflict between

Constitutional Fundamental Rights and DPSP, all
Amendment, 1976 DPSPs shall prevail over
Fundamental Rights.
1980 Minerva Mills Ltd. Vs. Union of The Court declared 42nd amendment
India, regarding supremacy of DPSP
In this case court held that unconstitutional. The Court however
harmony between FRs and DPSP held that 31C as originally
are basic structure of the introduced by 25th Amendment is
Constitution. constitutionally valid.
To give absolute primacy to one Those rights (Fundamental Rights)
over the other is to disturb the are not an end in themselves but are
harmony of the other. the means to an end. The end is
specified in Part IV
1993 Unnikrishnan vs. State of Andhra Supreme Court held, ―It is thus well
Pradesh established by the decisions of this
Parts III and IV are supplementary Court that the provisions of Parts III
and complementary to each other and IV are supplementary and
complementary to each other and
that Fundamental Rights are but a
means to achieve the goal indicated
in Part IV. It is also held that the
Fundamental Rights must be
construed in the light of the Directive
Principles.‖
DPSPs PLACED INTO CATEGORY OF FUNDAMENTAL RIGHTS
ARTICLE 39A CONVERTED

INTO ARTICLE 21
17 august M. H. Hoskot vs. State of ‗Legal aid‘ and ‗speedy trail‘ trial
1978 Maharashtra are fundamental rights under Article
123
The philosophy of legal aid as an 21 available to all prisoners and can

inalienable element of fair procedure be enforced.
1979 Hussainara Khatoon vs. Home Free legal services to poor is essential
Secretary, State of Bihar, Justice element of 'reasonable fair and just',
P.N. Bhagwati, procedure.
ARTICLE 39(D) CONVERTED Article 39(d) Equal pay for equal

INTO ARTICLE 14 AND 19 work, Article 14- Equality before
law, Article 16 –Equal opportunity
for all
22 Randhir Singh vs. Union of India The petitioner is a driver constable in
February, It is true that the principle of 'equal the Delhi Police Force under the Delhi
1982 pay for equal work' is not expressly Administration. The scale of pay of a
declared by our Constitution to be a driver in the Railway Protection Force
fundamental right. But it certainly is a is Rs. 260-400. The scale of pay of
Constitutional goal. Art. 39(d) of the driver in the non-secretariat offices in
Constitution proclaims 'equal pay for Delhi is Rs. 260-6-326-EB-8-350,
equal work for both men and while that of Secretariat offices in
women" as a Directive Principle of Delhi is Rs. 260-6-290-EB-6-326-8-
State Policy. 'Equal pay for equal 366-EB-8-8-8-390-10 400. The scale
work for both men and women' of pay of drivers in the office of the
means equal pay for equal work for Language Commission is Rs. 260-300
everyone and as between the sexes. while the drivers of heavy vehicles in
Directive principles, as has been the Fire Brigade and the
pointed out in some of the judgments Department of Light House is Rs. 330-
of this Court have to be read into the 480. The petitioner and other driver
fundamental rights as a matter of constables made a representation to
interpretation. Art. 14 of the the authorities that their case was
Constitution enjoins the state not to omitted to be considered separately by
deny any person equality before the the Third Pay Commission and that
law or the equal protection of the laws their pay scales should be the same as
and Art. 16 declares that there shall be the drivers of heavy vehicles in other
equality of opportunity for all citizens departments.
in matters relating to employment or
appointment to any office under the
State. These equality clauses of the
Constitution must mean something to
everyone.
ARTICLE 45 CONVERTED INTO
ARTICLE 21 & 21A
1992 Miss. Mohini Jain vs. State of J. Kuldip Singh, Capitation Fee Case,-
Karnataka Right to education is a fundamental
right U/A.21 which cannot be denied
by imposing higher fee which is known
as ‗Capitation Fee‘.
1993 Unni Krishnan vs. State of A.P. Supreme Court examined the
124
correctness of Mohini Jain case and

partly accepted ruling of Mohani Case.
The Court accepted that right ot
education is a F R U/A 21 which flows
from right to life but said that right to
free education is available only to
children until they complete the age
of 14 years.
2002 86th Article 21A was inserted. Right to
Education as Fundamental Right under
Article 21A and Article 45 was
substituted. Article 45- Provision for
free and compulsory education for
children up-to the age of six years.
KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, PUDUCHERRY

SCHOOLS OF JURISPRUDENCE
SN JURISTS CONTRIBUTIONS
1 DEFINITIONS OF JURISPRUDENCE
Jurisprudence Jurisprudentia (Latin Word), Juris (Law) + Prudencia (Knowledge) =Knowledge
of law. Jurisprudence is methods by which you can find out (1) source of law (2)
validity of law (3) object of law (4) Functioning of law (5) effect of law. The
expression ‗Law‘ in relation to jurisprudence means fundamental legal principles.
Ulpian ―Jurisprudence is the observation of things human and divine, knowledge of just
and unjust.‖
John Austin ―Jurisprudence is the Philosophy of positive law‖. Positive law means law made
by sovereign. He was the first jurist to make jurisprudence as a science. There are
two types of jurisprudence, (1) General Jurisprudence & (2) Particular
Jurisprudence.
Salmond ―Jurisprudence is the science of the first principle of law.‖ There are two types
125
of jurisprudence (1) Generic Jurisprudence and (2) Specific Jurisprudence

Gray ―Jurisprudence is the science of law….‖
Holland ―Jurisprudence is the formal science of positive law.‖ Formal Science means ‗it
deals not with concrete details but only with the fundamental (basic) principles
underlying them.
Dr. Allen ―Jurisprudence is the scientific synthesis of the essential principles of law.‖
Keetan ―Jurisprudence is the study and systemic arrangement of the general principles
of law.‖
H.L.A.Hart Jurisprudence is the scientific study of Union of rules (Primary and Secondary
Rules.) Primary rules means rules which imposes duty. Secondary Rules means
rules which confers powers whereby new duties may be created and defective
duties may be varied or repealed.
Julius Stone Jurisprudence is the lawyer‘s extraversion.
Laski Jurisprudence is eyes of law.
Patterson Jurisprudence is a social science.
2 KIND OF JURISPRUDENCE
Bentham There are two types of jurisprudence (1)Expository/ Expositorial (What the law is)
(2)Evaluative/Censorial (What the law ought to be)
Austin There are two types of jurisprudence, (1) General Jurisprudence & (2) Particular
Jurisprudence.
Salmond There are two types of jurisprudence (1) Generic Jurisprudence and (2) Specific
Jurisprudence
3 IMPORTANT POINT
J Austin (1)Law properly so called (Positive law, behind which there is sanction) and (2)
Law improperly so called (Lacking of sanction.)
4 BOOKS
Hugo Grotius De Jure Belli Ec Pacis, ( On the Law of War and Peace ) 1625
Bentham Limits of Jurisprudence Defined, Theories of Legislation, The Introduction to the
Principles of Morals and Legistation
Austin Province of Jurisprudence Determined
Julius Stone Province of Jurisprudence Redetermined, Legal System and Lawyer‘s Reasoning
Ihering Law as a means to an end
Pound Jurisprudence
Hart The Concept of Law
Fuller The Morality of Law
Maine Ancient Law
Friedman Law in Changing Societies
Hohfeld Fundamental Legal Conception
Paton A Text Book of Jurisprudence
Goodhart ―Essays in Jurisprudenceand Common Law‖
Savigny Das Recht Des Bestizes (The Law of Possession). System of modern Roman Law
Buckland Some reflections on Jurisprudence
5 SCHOOL (1) Natural Law School (2) Analytical School (3) Historical School (5)
Sociological School (6) Realistic School
6 NATURAL LAW SCHOOL
126
(1) Ancient Natural Law derived from Greek or Unani thought. Natural law derives its validity
Period from nature. Nature never commits any discrimination. For example, if five people
(2) Medieval are in ground in day light, sun will shower its light over all person equally without
Period making any discrimination on the basis of religion, race, caste, sex or place of
(3) birth etc. Natural law is a method to search humanity. So theme of this school is
Renaissance based on just fair and reasonableness, uniformity and universality. Law without
Period morality cannot exist. In this way, it establish check and balance. Rule of Law and
(4) Modern due process of law is based on this School. In India, E.P.Royappa (1974) and
Period. Maneka Gandhi case (1978) are based on philosophy of this School. Human rights
derived from this thought.
(1) (1) Heraclitus (2) Socrates(3) Plato(4) Aristotle (5) Cicero
ANCIENT
PERIOD
(1) Heraclitus Reason is one of the essential elements of law. He established base of natural law.
(530-470 B.C.)
(2) Socrates Like natural physical law, there is a natural moral law. Person must obey
(469-399 B.C.) command of state, if he does not like he should go in another State.
(3) Plato 427- Concept of ideal State which he termed as Republic. Only intelligent and worthy
347 person must be a king.
B.C.)Republic(
380BC)
(4) Aristotle Natural law is a reason free from all passions.
(384-322 B.C.)
(5) Cicero True law is right reason in agreement with nature; it is universal application,
(106-43 B.C.) unchanging and everlasting..
(2)MEDIEVA This period was dominated by Church. It was tried to establish superiority of
L PERIOD Church. They used natural law theory to propagate Christianity
(6)St. He provided religious colour to law. During dark period, he explained law in new
Augustine(345 way. He treated nature and God as a source of law.
-430AD)
(7)St. Thomas Classification of law (1) Low of God (2) Natural law which revealed through
Acquinas reason (3) Divine Law (4) Human law which we now called ‗positive law‘.
(1225-1274) Reason and will in law. (Dictates of Reasoning).
(3) RENAISSANCE PERIOD
(8) Hugo Laws of War and peace (1625), Theory of functional law, Father of International
Grotius (1583- Law, ―Natural law was not merely based on ‗reason‘ but on ‗right‘ reason self-
1645) supporting reason of man.‖ He propagated equality of States and their freedom to
regulate internal as well as external relations.
Hobbes(1588- Social Contract theory.
1679)
J.Locke(1632-
1704)
J.Rousseau(17 General Will Theory.
12-1778)
IMMANUAL Book-Critique of Pure Reason. (1) Theory of Categorical Imperative. The
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KANT (1724- categorical imperative expects a man to act in such a way that he is guided by
1804) dictated of his own conscious. It is a human right of self- determination.(2)
Doctrine of Autonomy of will-It means an action emanating from reason but it
does not mean the freedom to do so one pleases.
(4) MODERN PERIOD.
Stammler ―Law is the law of nature with variable content‖.
Kohler Inner Impulse- ―Law is the standard of conduct which in consequence of the
inner impulse that urges upon men towards a reasonable form of life, emanates
from the whole and is forced upon the individual‖.
L.L.Fuller Natural law theory denies rigid separation of ‗as it is‘ and ‗as it ought to be‘. Law
Inner contains two types of morality-(1) External morality of law (2) Internal Morality
morality of of Law. What is relation between law and morality? He distinguishes ‗morality as
law. it is‘ (Morality of Duty) from ‗morality as it ought to be‘(Morality of
aspiration).He further sub-divided ‗moral duty‘ into affirmative duty and negative
duty(forbearance). ‗Is‘ and ‗ought‘ both are inseparable.
According to him, morality of duty includes basic requirements of social living
whereas morality of aspiration means good life of excellence e.g., forbearing from
indulging into extra-marital sex. Inner morality of law.
H.L.Hart Internal structure of natural school. Minimum content of Law. Law and morality
(Mainly are complimentary and supplementary of each other.
belongs to
analytical
School)
John Rawls Theory of Justice (1972)
ANALYTICA Main focus was on the source of law. It came in reaction of natural law school.
7 L SCHOOL Main focus was to bring certainty in law. So Jurist of this school always tried to
separate law from morality. That‘s why they treated the sovereign as a source of
law and ignored nature, custom and judge made law as a source of law.
Bentham Principle of Hedonism (Pain and pleasure theory), Individualism Utilitarian
(Exponent of Theory, Greatest happiness of greatest number.
Utilitarianism )
Austin There can be no law without a legislative act. His views was that typical law is
(Command statute and legislation. He did not approve precedent and custom as a source of
Theory)Father law. Positive law is the aggregate of rules set by man as politically superior to man
of English as politically inferior subjects. He attributes (1) Sovereign (2) command (3) duty
Jurisprudence (4) sovereignty as the four essential attributes of positive law. ―Existence of law is
one thing, its merit and demerit another …..A law which actually exists, is a
law, though we happen to dislike it.‖ A.K.Gopalan vs. State of Madras, 19
May,1950.
H.L.A.Hart Primary and Secondary Rules. Law and morality are complimentary and
supplementary of each other.
Kelson(Normat Grundnorm Theory/Normative theory/Pyramid of Norms. Pure theory of law
ive Order) means law is free from ethics , politics, sociology , history , religion etc.
HISTORICA Historical school came in reaction of Analytical School and Natural school.
8 L SCHOOL Historical school vehemently criticized both school and said that without support
of custom and usages, if any law is enacted, it would always invite revolt. If law is
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enacted on the basis of custom and usage, it would be followed by people on their
conscience and there would be no need of police raj. According to this school,
main source of law is custom which develops from conscience of people. Law is
found and it is not made. It emphasis on the question ―How did law comes to
be‖.
Montesquieu(1 Montesquieu was the first jurist who adopted historical methods perusing the
689-1755) study of legal institution. ―Laws are the creation of climate and local
institutions‖. He propounded the doctrine of ‗Separation of Power‘.
Edmund Organic Process. Evolution of law is an organic process and expression of
Burke(1729- common belief, faith and practices of the community as a whole.
1797)
Savigny (1779- Founder of Historical School. He is called Darwinian before Darwin because
1861)(German he applied evolutionary principle to the development of legal system before
y) Founder of Darwin. (Darwin., 12 1809- 1882). Volksgeist (Spirit of the People).Law develops
Historical like language. Savigny opposed codification of German law on the basis of
School. French law because at that time Germany was under control of French
Volksgeist Government. He admired Roman Laws. He propounded national character of
(Spirit of the law. Books – The Law of Possession, The History of Roman Laws in Middle
People). Ages, The System of Modern Roman Laws.
Puchta (1798- ―Neither the State nor the people alone are a source of law but law comes into
1856) existence as a result of conflict between general and individual will.‖
Sir Henry Social Darwinist. Status , Status to contract , contract to status. There are two
Maine (1822- types of societies (1)Primitive or Static Society(2) Progressive Society –(1) In
1888) Britain primitive societies ,law developed in four stages (i) Devine Law (ii) Customary
Father of Law (iii)Priestly Class as a sole repository of Customary law (iv) Codification.
British After codification, such societies is called static society. (2) Progressive
Historical Societies- A society which developed after codification is called as progressive
Schoool, Main society. In this society, law develops in three following way, (1) Legal
emphasis on fiction,(2)Equity(3)Legislation .
comparative Pater familiar constituted the lowest unit of primitive communities. (1) Pater
studies of familiar.(2) Family group .(3) Gens (4) Formation of tribes (5) Community (6)
laws. Commonwealth
9 Phylosophical/ Hugo Grotius, Immanual Kant( Distinction between ‗Form‘ and ‗Matter‘),
Ethical school Hegal, Kohler, Kohler, Stammler
10 SOCIOLOGI Main focus of sociological school is on functioning of law. Purpose of law is to
CAL make balance between conflicting interest of individuals and societies. Bentham
SCHOOL propounded individual utilitarian theory while Ihring propounded social utilitarian
theory.There are three main tenets of this school.
Rudolph Von Books- Spirit of law, Law as a means to an end. Father of modern sociological
Ihering(1818- jurisprudence. (1) Law is a result of constant struggle, (2) Law is to serve a social
1892)(German purpose (3) Law alone is not a means to control the society. (4) Social
y) Social Utilitarianism Social interest of the society must gain priority over individual
Utilitarianism interest. Levers of Social Motion. In India Supreme court with the help of this
/ Interest school, has decided several cases when Directive Principles of State policy (social
Theory , interest) prevails over individual interest (Fundamental rights but not all FRs).
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Social Control
Theory.
Eugen Ehrlich He divided law into two parts (1) Norms of decisions or formal science (This
(1862-1922) types of law are found in form of Statutory law, and Judicial decisions. It is mainly
Living Law directions for public authority to regulate their conduct). (2) Norms of
Organization or Living Law (This types of law are found from inner order of
societies. It is extra-legal control which regulate social relations of men).
Living Law is the law which dominates social life even though it has not been
promulgated in the form of enactment or decisions of the court. Living law is
wider in scope than the statutory law enacted by state. A statute which is
habitually disregarded is not the part of living law. For example, Dowry
Prohibition Act, 1961. ―Centre of gravity of legal development in the present time
or past, lies neither in juristic science nor in the judicial decisions, but in society
itself.”
Leon Duguit No right, Only duty. Social Solidarity is combination of two wards, social and
(1859-1928) solidarity. Here solidarity means interdependence. Combined meaning of social
Doctrine of solidarity is that in society every persons are dependent to each other. It means a
Social single person cannot produce all things whereby he can fulfil his desire. For
Solidarity example a single person cannot produce wheat, computer, vehicles etc. In the
society, if everyone fulfils his duties, no questions arise about duty. ―Law is a rule
which men obey not by virtue of any higher principle because they have to live as
a member of societies.‖ ―Mutual co-operation and mutual interdependence
between individuals, groups and societies according to the principle of division of
labour for the purpose of social cohesion.
Roscoe Pound Minimum Investment, Maximum Production. The courts, legislators,
(1870-1964) administrators and jurists must work with a plan and make an effort to maintain a
Social balance between competing interest in the societies .Three types of interest-(1)
Engineering Private Interests (2) Public Interests (3) Social Interest. In order to evaluate the
means balance conflicting interests in due order of priority, every society has some basic
between assumptions and according to that assumptions, interest is given priority. He
competing propounded five assumptions (Jural Postulates) which is given preference – (1)
interest in the Jural Postulate, Security (2) Jural Postulate-Enjoyment of own labour. (3) Jural
societies. ―We Postulate Other will perform the contract in good faith (4) Jural Postulate-To
cannot perform his work in such a way as not to cause harm to other person (5) Jural
understand Postulate- Other will enjoy a things which are harmful for other in such a ways
what a thing is that it does not cause harm to the other person for example scape of dangerous
unless we things (strict liability).
study what it
does‖. Jural
Postulate.
11 MARXIST THEORY
Karl Marx Law is an instruments used by economically ruling class to keep subordinate
class in subjection. It is a means to exploit weaker class.
12 REALISTIC It is a branch of Sociological school. It declares that by observing conduct of
SCHOOL Judges, their previous decision, family background, status of parties, and advocate,
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(Judges make judgment can be predicted.

laws)
Karl ―The traditional outlook that the rules decide cases and therefore , they should be
Llewellyn(189 looked into the law books has become outdated and now the focal point of
3-1862) Law attention should be the behaviour and thinking of the deciding judges or the court.
Books Hence , there is need to shift the emphasis from precedent to the study of case-
Outdated law.‖
Jerome Book-Law and Modern mind, ―Judges do not make law, but instead they
Frank(1889- discover it.‖ Personality of judges and his past experience play a dominant role in
1957) molding the law and giving it a concrete shape.
Gray Judges alone make the law. Judges are truly giver.
13 IMPORTANT MAXIMS
Per Incuriam Per incuriam literally means ―Through lack of care‖. It refers to a judgment which
has been decide by ignoring statutory provisions or earlier judgment which would
have been considered.
Ratio D. Ratio decidendi- Reason of Decision
Obiter Dicta Something said by the judge by way, which does not have any binding authority.
Goodhart ―A conclusion based on a fact the existence of which has not been
determined by the court.‖ In the Course of judgment, a judge may make various
observations which are not precisely relevant to the issues before him. For
instance, he may illustrate his reasoning by reference to hypothetical situations.
CBI is a caged parrot during the hearing of Coal Scam Case, 08 May,2013.
S.R.Bommai Case, the Court said that Articles 15, 16, &25 are basic structure.
These are obiter dicta. Because questions regarding these Articles were not
involved. Ratio of the case is that secularism is a part of basic structure of the
Constitution.
Doctrine of ―Let the decision stand in its rightful place.‖ There are two types of precedent ,
Stare Decisis namely (1) Authoritative, Binding over subordinate Courts, e.g., Decision of
Supreme Court is binding over all courts.(2) Persuasive ( It is not binding , but it
must be taken into consideration , e.g., decision of one High Court for another
High Court ..
Theories of There are two theories regarding judicial precedent (1) Declaratory Theory (2)
judicial Constructive theory. (1) Declaratory Theory- judges only declare the law. They
precedent do not make laws. Judges only discover the law. They do not make the law. (1)
Blackstone, Coke (2) Constructive theory. Judges makes the laws. Gray ―Judges
alone make the law. Judges are truly law giver.
CONCEPT OF JURISPRUDENCE
(1) Rights and Duties,(2) Legal Personality(3)Possession (4) Ownership
1 (1) RIGHTS AND DUTIES,

i DEFINITION OF RIGHTS
Austin ―A party has a right when another or others are bound or obliged by law to do or
forebear towards or in regard of him.‖
Salmond ―Right is an interest recognized and protected by a rule or justice. It is an interest
in respect of which there is duty and disregard of which is wrong.‖ Important
Point - First stage is recognition and second stage is protection by State . Wrong
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Definition- Right is an interest protected(2nd Stage) and recognized(first stage) by

rule or justice.
Ihering ―Right is legally protected interest.‖
Duguit No existence of rights, there is only and only duties. Law being an expression of
social solidarity, demands that everyone should abide by his duties and has no
right to claim..
Ii RELATION BETWEEN RIGHTS AND DUTIES
INTRODUCT Rights and Duties are co-relative of each other. Hohfeld propounded jural co-
ION relation says that right‘s jural co-relation is duty. One without other cannot exist.
For example, without father (whether known or unknown) son is not possible or
without husband, wife is not possible. But Austin says that there are certain
exceptional cases when there is duties but no rights. There are two types of duties
(1) Absolute duties are those duties which exist without right. (2) Relative Duties
are those duties which exist with rights.
Austin There are four duties which have no corresponding rights, namely, (1) Self
(Absolute Regarding Duties- e.g., not to commit suicide, not to consume liquor or drugs.(2)
Duties) Duties toward indeterminate person or public at large, e.g., not to commit
nuisance.(3) Duties towards non-human-e.g., duties toward God or animals or
birds.(4) Duties towards sovereign or state.
Allen Allen has supported Austin‘s view regarding absolute duties.
Salmond Criticism of Absolute Duties of Austin‘s view- ―There can be no duty without a
Parent without right any more than there can be a husband without wife or parent without
child child.‖
Gray Son ―Rights and duties are inseparable and existence of one without the other is as
without a impossible as that of a son without a father or husband without a wife.‖
father
iii THEORY OF TWO THEORIES OF LEGAL RIGHTS-(1) Will theory-Hegal, Kant , Puchta
RIGHT Salmond &Hume (2) Interest Theory-Ihering
(a) Will Theory Subject matter of right is derived from human will. Puchta, ―A legal right is a
power over an object which by means of his right can be subjected to the will of
the person enjoying the right‖.
(b) Interest Basis of legal right is interest and not will. Right is a legally protected interest. by
Theory
Iv Essential According to Salmond , there are five essential elements of right ,(1)The person
elements of of inherence(,Right holder) (2) The person of incidence (Duty Holder) (3)
Right Contents of the Right (Acts or omission) (4) Subject matter of Right ( It is the
(Salmond) things over which a right is exercised) (5) Title of the Right
Salmond Salmond illustrates these elements of legal right by referring to an example.
Examples-If ‗A‘ buys a piece of land from ‗B‘, (1) A is the subject or owner of
the right so required. (2)The person bound by correlative duty are person in
general, for a right of this kind avails against the world at large. (3)The content of
the right consists in non-interference with the purchaser‘s exclusive use of land.
(4) The object or subject matter of the right is the conveyance by which it was
acquired from the owners. (5) Ownership is a title.
V RIGHTS AND ITS LEGAL CO-RELATIVES
Hohfeld‘s VERTICLE ARROW – Jural Co-relative (Like Husband and wife or parent and
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Tabular form son, without one, another cannot exist. ) (1) Right and Duty,(2) Liberty/Privilage
( Salmond used and No right/ Claim (3) Power and liability/ subjection (4) Immunity and
the word Disability/no power
‗claim‘ instead HORIZONTAL ARROW- Jural Cotradiction (Life and death of same person is
of right not possible. both are contradictory to each other. Another example, Meeting of
North and South Pole). (1) Right and Liberty,(2) Duty and No right/ Claim (3)
Power and Immunity (4) Disability/ no power and liability/ subjection
Vi CLASSIFICATION OF RIGHTS
1 PERFECT AND IMPERFECT RIGHTS
Enforceable Perfect right is a right which is enforceable by law, e.g., recovery of debt.
and non- Imperfect Right is a right which is not enforceable by law; e.g., recovery of time
Enforceable barred debt.
2 POSITIVE AND NEGATIVE RIGHTS
To do and not Positive right is a right of which jural co-relative is positive duty. Positive duty is
to do requires to do something; e.g., Right to recover compensation, damages and debt.
Negative right is a right which prohibits duty holder (person of inherence) to do
anything. In case of right of ownership, negative right is that other person shall not
create nuisance.
3 REAL(RIGHT IN REM)& PERSONAL RIGHTS ( RIGHT IN PERSONAM)
Right against Real ( Right in Rem ) - it imposes duty in general, duty of whole world ; not to
whole world create nuisance or right to reputation .Personal Rights ( Right in Personam) – it
and imposes duty upon particular person e.g., performance of particular contract.
Particular
person
4 PROPRIETARY AND PERSONAL RIGHTS
Proprietary rights related to property ; Money. Personal Rights related to person ;
e.g., right to reputation, personal liberty ,life etc.
5 RIGHTS IN RE PROPRIA AND RIGHTS IN RE PROPRIA
Rights in re propria means right over one‘s own property; right to enjoyment of
own house. Rights in re propria means right to use of another‘s property; e.g.,
right to way over property of another‘s person, an easement right.
6 PRINCIPLE AND ACCESSARY RIGHTS
Existence of Priniciple right is independent whereas accessory right are ancillary
to primary right.
7 PRIMARY AND SANCTIONING RIGHT
Primary right are also called antecedent or substantive right. Sanctioning right is
remedial right.
8 LEGAL AND EQUITABLE RIGHTS
Legal rights were recognized by Common Law Courts. Equitable right were
reognised by Chancery Court which was known as Court of Equity.
9 VESTED AND CONTINGENT RIGHTS
Vested Right (Section 19 TPA)-It creates immediate rights & Contingent Right is
a right which comes into effect after happening or non-happening of future event
(21TPA). Contingent right may be converted into vested right but vested right may
not be converted into contingent right.
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10 PUBLIC AND PRIVATE RIGHTS

A right vested in the State is public right. The State enforces such right as a
representative of people in public interest. Public right is possessed by every
member of the public. For example 4th generation rights. Private rights are
concerned with private individuals. Enforcement of rights under Contact Act,1872
or TPA, 1882 are private rights.
02 LEGAL PERSONALITY
DEFINITION
Salmond ―A person is any being to whom the law regards as capable of rights or duties.
Right or duties Any being that is to so capable, is a person whether it be human being or not, and
nothing that is not so capable is a person even though he be a man.‖
Gray Rights ―A person is an entity to which rights and duties may be attributed.‖
and Duties
Paton ―Legal personality is a medium through which some such units are created in
medium whom rights can be vested.‖
Legal Status (1) Unborn Person, (2) Dead man (3) Animal (4) Idol(5) Mosque (6) Guru Granth
Sahib.
(1) LEGAL STATUS OF UNBORN PERSON
Paton Child in mother‘s womb is not a legal person because he is without right.
Montreal The law recognizes legal personality to unborn children. A child in mother‘s
Tramways co. womb is by fiction of law treated as already born and regarded as person for many
V.Leveille, purposes. For example section 13 of TPA, Section 20 of Hindu Succession Act,
1833Unborn 1956, Section 299, Explanation 3 of IPC. Montreal Tramways co. V.Leveille, 1833
was Legal (Canadaian Court) Unborn was Legal Person. Canadaian Court awarded
Person. remedy for injury which was caused when he was unborn.
( 2) LEGAL STATUS OF DEAD MAN
As a general rule, a dead man is not a legal person, but for certain purposes (e.g.,
body, reputation and his estates) he is a legal person.
Salmond ― The personality of a human being may be said to commence with his birth and
ceases with his death…..There are three things in respect of which anxieties of
living men extends beyond the period of their death, of which law will take notice
. They are men‘s body, his reputation and his estates.‖ Rule- Dead man is not
person. Exceptions, (1)Body (2) Reputation (3) Estates.
AIR2002SC Ashray Adhikar Abhiyan vs. UOI. In this case court held that even a homeless
person when found dead on the road, has a right of a decent burial or cremation as
per his religious faith.
(3) LEGAL STATUS OF ANIMAL
Law does not recognize beasts or lower animals as person because they are merely
things and have no natural or legal rights.
Salmond Animals are mere objects of legal rights and duties, but never the subjects of them.
(4) LEGAL STATUS OF ‗IDOL‘
Idol is a juristic person and its position is like minor and pujari (priest) acts as
guardian.
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Privy Council, Pramatha Nath Mullick vs. Pradyumna kumar Mullick. Privy Council held that
1925 an idol is juristic person, and its will as to its location must be duly respected.
Supreme Yogendra Nath Naskar vs. CIT. Supreme Court held that an idol is juristic
Court,1969 person, and tax may imposed.
LEGAL STATUS OF ‗MOSQUE‘
LahorHC1925 Maula Bux vs. Hafizuddin Mosque is the legal person. Mosque is the legal
person.
Privy Council Masjid Shahid Ganj Mosque vs. Shiromani Gurudwara Parbandhak Committee
1940 It may not sue and be sued. Mosque is not the legal person. Mosque is not the
legal person
(6)LEGAL STATUS OF GURU GRANTH SAHIB
S.C.2000 Shiromani Gurudwara Parbandhak Committee vs. Somnath Das. ‗Guru Granth
Sahib‘ holy Granth of Sikhs is a legal person.
Kinds of There are two types of person,(1)Natural Person; human being.(2) Legal Person,
Legal Person entity declared by law as a person e.g., Company, educational istitutions, etc.
Kinds of A corporation is an artificial person enjoying in law capacity to have rights and
Corporation duties and holding property. Corporation are of two kinds (1) Corporation
Aggregate (2) Corporation Sole
(1) Corporation Aggregate is an ‗association of human being‘ united for the purpose
Corporation of forwarding their certain interests, limited companies are the best example of
Aggregate Corporation Aggregate. Union of India is a legal person; Section 79 of CPC and
Article 300 of Constitution. Government of India is not legal person..
One man Co. Saloman vs. Saloman & Co. 1887 There can be one man company. It denies
Soloman from pierced the veil of corporate personality. Corporate body has its own
Case1887 existence or personality separate and distinct from its members and therefore a
shareholder cannot be held liable for the acts of the company even though he holds
virtually entire share capital. It recognized limited liability of the company.
People‘s Pleasure Park Co. vs. Roheledar, 1908 American Court saidthat for
some purposes corporation aggregate has separate entity.
Tata Engineering & Locomotive Co. Ltd., AIR1965SC40, Supreme Court held
―The corporation in law is equal to a natural person and has a legal entity of its
own. It is entirely separate from that of its shareholders and its assets are separate
from those of its shareholder.‖
Lifting/ There are two leading cases; (1) Daimler Co.Ltd. Vs. Continental Tyre &
Piercing the Rubber Company (1916)- For determing the real character and status of the
Corporate company , the court may ignore its separate entity and lift the corporate veil.
Veil Jones vs. Lipman (1962) in case of fraud or improper conduct, the Court lifted the
veil..
(2) Corporation sole is an incorporated series of successive persons. Main purpose of
Corporation this is to maintain continuity of an office. It consists of a single person who is
Sole personalized and regarded by law as a single person. It is perpetual, e.g., Post -
Master General, Public Trustee, CAG, President of India, Crown of England.
Salmond Living person comes and goes, but this creation (corporate sole ) of law always
exist.
THEORIES (1) Fiction Theory-Savigny, Salmond ,Kelson & Holland (2) Concession
Theory-Savignny, Salmond Dicey (3) Realist Theory –Gierke (4) Bracket
135
Theory-Ihering (5) Purpose Theory-Brinz.

POSSESSION POSSESSION
Possession is prima facie evidence of ownership. Relevant section for this is

section 110 of Indian Evidence Act. Possession is protected under Cr.P.C., section
145, and Specific Relief Act,1963 ,Sections 5-8.
MEANING OF POSSESSION (Effective Control Of Object)
Pollock ―Having a physical control over a thing constitutes a possession.‖
Salmond ―The possession of a material object is the continuing exercise of a claim to the
exclusive use of it.‖
Salmond Possession is the most basic relation between man and things.
ESSENTIAL ELEMENTS OF POSSESSION
Savigny Legal Possession has two essential elements, namely,(1)Corpus Possessionis
(2)Animus Domini
Holland Legal Possession has two essential elements, namely,(1)Corpus (2)Animus
Salmond (1)Possession in fact (2) Possession in law
Ihering Animus is not an essential elements but only as supplemental to the claim of
legal possession.
KIND OF POSSESSION
CORPOREAL AND INCORPOREAL POSSESSION
Tangible vs. Corporeal possession is the possession of material things, e. g., books, land house
Intangible etc. Incorporeal possession of immaterial or intelligible things which we cannot
touch,e.g., possession oof trade-marks , goodwill etc.
MADIATE AND IMMEDIATE POSSESSION
Indirect vs. Medium possession is possession of a things through another person. Salmond
Direct pointed some example of mediate possession (1) Possession through agent or
servant.(2) Possession held through a borrower or hirer to tanant where the res i.e.
the object can be demanded at will. Immediate means at once or direct. If you
purchase any book from shop for yourself , it is immediate possession for you.
English law English law does not recognize difference between mediate and immediate
possession.
CONCURRENT or DUPICATE POSSESSION
CONSTRUCTIVE POSSESSION
According to Pollock, constructive possession is the possession in law and not
actual possession. It is a right to recover possession. For example, delivery of keys
of a building may give rise to constructive possession of the contents to the
transferee of the key.
ADVERSE POSSESSION
Use of land of another person after prescribed period continuously and peacefully
provides adverse possession. 12 years in case of property other than property of
Government is sufficient for adverse possession.
LEADING CASES
Merry vs. A man purchased a chest of drawers (bureau) at an auction and took possession of
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Green it. Subsequently he discovered that there was some money in the secret drawer
1847 belonging to the vendor but he appropriated the same. The court held him the
guilty of larceny (theft) because the purchaser was ignorant about the existence of
money and secret drawer hence he cannot be said to have animus in regard to that
money and could not intend to possess the contents of the secret drawer until he
found it.
Bridge vs. In this case, it was decided by the court that the bundle of notes found on the floor
Hawkesworth of a shop passed into the possession of the finder rather than shop-keeper.
1851
R.Vs. Moor In this case, a bank note was dropped in the shop of the accused who took it and
1861 converted it too his own use. The accused was convicted of larceny. Since he was
not in possession of the note until he actually discovered it.(Criminal
Misappropriation )
Hannah vs. Defendant purchased a house in 1938, but he never occupied it. In 1940 the house
Peel 1945 was requisitioned by the government. A soldier who was stationed in the house
found a brooch on the top of window-frame covered by dust. Brooch was given to
police for giving of real owner. Police without finding real owner gave the
possession to the purchaser. Then soldier filed a suit and claimed the brooch from
owner who had purchased the house but never occupied the house and at the time
of purchasing, he had no knowledge regarding brooch. The Court approved claim
of soldier. Reason (1) Finder‘s claim prevails over all others except the rightful
owner (2) Since the defendant was never in possession of the house and had no
knowledge of the brooch until it was brought to the police, he neither had de facto
possession of it nor the animus of excluding others.
MODE OF GETTING POSSESSION
(1)By taking (2) By delivery (3) By operation of law
OWNERSHIP
In Roman law ownership and possession were respectively termed as ‗dominium‘
and ‗possessio‘. The term dominium denoted absolute right to a thing while
possession implied only physical control.
DEFINITION OF OWNERSHIP ( Right in rem)
Hibbert Ownership includes (1) Right to use of a thing (2) Right to exclude other from
(Distroy) using it (3) Right to dispose of it. (4) Right to destroy.
Austin ―Ownership is a right indefinite in point of user, unrestricted in point of
(Indefinite) disposition, and unlimited in point of duration.‖
Salmond ―Ownership, in its most comprehensive signification, denotes the relation
between a person and right that is vested in him.‖
Holland ―Ownership is plenary control over an object.‖
Buckland ―Ownership is the ultimate right to the thing or what is left when all other rights
vested in various people are taken out.‖
Pollock Ownership is the entirety of the powers of use and disposal allowed by law.‖
137
Hohfeld Bucket of water. ― Ownership is collection of right…..Ownership is no more to

(Collection of be conceived as an aggregate of rights than a bucket of water is conceived as an
Right) aggregate of separate drops.‖
Henry Maine Community liability principle
DIFFERENT KINDS OF RIGHTS
CORPOREAL AND INCORPORIAL OWNERSHIP
Ownership of land is corporeal right while ownership of goodwill is incorporeal
ownership.
SOLE OWNERSHIP AND CO-OWNERSHIP
When the right of ownership is vested exclusively in one person, it is called sole
ownership. When two are more persons have the same right vested in them, it is
called co-ownership. Example, the members of a partnership are co-ownership of
the partnership property.
TRUST OWNERSHIP AND BENEFICIAL OWNERSHIP
LEGAL OWNERSHIP AND EQUITABLE OWNERSHIP
VESTET OWNERSHIP &CONTINGENT OWNERSHIP

Section 19 and section 21 of TPA
ABSOLUTE OWNERSHIP & LIMITED OWNERSHIP
Section 14 of Hindu Succession Act, 1956 limited right.

(LL.B. BHU, LL.M.- University of Delhi, UGC- NET-JRF, Ph.D. –BHU(Pursuing) Assistant
my post .
INTERNATIONAL LAW
S.N. CHAPTER-1 MEANING AND DEFINITION OF I. LAW

1 INTRODUCTION Hugo Grotius is Father of International Law whose book
is De Jure Belli Ec Pacis, (On the Law of War and Peace)
published in 1625 because he discussed about law of
nations in his book. ‗International Law‘ word was first
coined by Bentham in 1789, (Book-Principles of Morals
and Legislation.)
138
A INTERNATIONAL LAW IS NOT LAW

Austin ―International Law is positive morality‖. Reason- In
‗Positive International case of non-obedience of command of sovereign, there
Morality‘ must be punishment. In case of international law, there is
no machinery for enforcement of international law. (Now
situation has been changed.)
Austin (Club or society.) ―International Law is not true but ‗Positive International
Morality‘ only, analogous to the rules binding a club or
society.‖
Holland (1) ―International law is law only for courtesy‖.
Vanishing point is a (2) ―International law is the vanishing point of
point where two parallel Jurisprudence.‖ Meaning of Vanishing point- Vanishing
line seems to meet each point is a point where two parallel line seems to be meeting
other but in reality, they to each other but in reality, they never meet to each other.
never meet to each other. When you see sun rise, it seems that sun are coming from
sea, but reality is different. In the same way, subject matter
of jurisprudence is law. So International law is not law.
International law and Jurisprudence are two parallel line.
So it seems that international law is subject matter of
jurisprudence, but it is not so.
Justice V.R.Krishna Iyer ―It is sad truism that International law is still the vanishing
―Mass Expulsion as point of jurisprudence.‖ Today his view is not correct.
Violation Of Human
Rights‖ (1973).
B INTERNATIONAL LAW IS LAW
Oppenheim (State) ―Law of nations or International law is the name for the
body of customary and treaty rules which are considered
legally binding by States in their intercourse with each
other‖.
Hall (Modern Civilized ―International law consists of certain rules of conduct
State) which modern civilized States regard as being binding on
them in their relation within one another‖
Briely (Civilized State) ―The law of Nations or International Law, may be defined
as the body of rules and principles of action which are
binding upon civilized states in their relations with one
another.‖
J.L.Briely UGC ― As a matter of fact International Law is neither a myth
Dec,2015 on the one hand nor a panacea on the other , but just a one
institution among others which we can use for the building
of a better international order.‖
Pitt Cobbett(Civilized ―International Law may be described as sum of the rules
State and their subjects) accepted by civilized States as determined their conduct
towards each other and towards each other subjects.‖
Schwarzenberger International Law as the body of legal rules which apply
(International between sovereign States and such other entities as have
Personality) been granted international personality‖
139
R.Vs. Keyn (1876) Chief Justice Coleridge, ―Law of Nations is that

(Civilized States & collection of usages which civilized States have agreed to
collection of usages) observe in their dealing with one another.‖
West Rand Central Gold Chief Justice Lord Alverstone, ―International Law is the
Mining Co. Vs. R.( aggregate of the rules to which nations have agreed to
aggregate of the rules) conform in their conduct towards one another.‖
Starke (Best Definition) ―International Law is that body of law which is composed
(Subject matter of for its greater part of the principles and rules of conduct
International Law is which States feel themselves bound to observe , and
States, international therefore , do commonly observe in their relations with
institutions or each other, which includes also: (a) the rules of law
organizations, relating to the functioning of international institutions or
individuals, non-States organizations, their relations with each other, and their
entities) relations with states and individuals, and (b)certain rules
of law relating to individuals and non-States entities so far
as the rights or duties of such individuals and non-States
entities are the concern of the international community.‖
S.S.Lotus Case (1927) International Law governs relations between independent
States……‖
C J.J Starke INTERNATIONAL LAW IS A WEAK LAW BUT
TRUE LAW
Pacquete Habana Case Justice Gray, ―International Law is part of our law, and
(USA Supreme Court- must be ascertained and administered by the Courts of
1900) Justice Gray Justice of appropriate jurisdiction….‖
International law is true In the context of sanctions contemplated by Articles 5,6,41
law Reasons- Articles and 42of the Charter of the United Nations ‗International
5,6,41 and 42of Law‘ is as much law as any other law.
International law is a After observing Article 27 (Double Veto Power) and
weak law. Reasons- Article 94 (Enforcement of Judgment by Security Council
Article 27 and Article 94 – even here all permanent members have veto power) it
and Voluntary becomes clear that international law is weak law.
Jurisdiction of Court- Voluntary Jurisdiction of Court- Art.36 of Statute of
Art.36 of Statute of Charter of ONU.
Charter of ONU.
2 BASIS OF There are three theories regarding basis of International
INTERNATIONAL Law, namely, (1) Naturalist Theory, Jurist- H. Grotius,
LAW Pufendorf & Vattel. (2) positivists Theory,- Bynkershok
(3) Ecclectic Theory- Vattel (4) Consent theory, -
Anzilotti, Triepel & Oppenheim(5) Auto Limitation
Theory (6) Pacta Sunt Servanda- Anzilotti, (7) Theory
of Fundamental Rights
3 SOME IMPORTANT WORDS
A Pacta Sunt Servanda- Pacta Sunt Servanda means the agreement entered into
Anzilotti by the states must be followed by them in good faith.
B Jus Cogens (Vienna Jus Cogens means ―Peremptory norms of general
Convention on the Law international law from which no derogation is permissible.
140
of Treaties, 1969, Article According to Article 53, a treaty is void, if at the time of
53.) its conclusion , it conflicts with a peremptory norm of
general international law.
C Opinio Juris et Opinio Juris et necessitates means States must recognize
necessitates the custom as binding upon them as law. It is an essential
ingredient for formation of custom.
CHAPTER-2 SOURCES OF INTERNATIONAL LAW

A INTRODUCTION
ARTICLE 38 (There are Article 38(1)(a) International conventions whether
two types of conventions general or particular, established rules expressly
(1) General Conventions recognized by the contesting states; (b) International
(2) Particular Custom, as evidence of a general practice accepted as law
Conventions. Domestic ; (c) General Principles of law recognized by civilized
custom is not the source nations and (d) judicial decisions and Teaching of the most
of law, only international highly qualified publicists, Article 38 (2) Ex acquo et
customs are source of bono. There are two types of source-(1) Primary Source-
law. There are two types International Conventions, custom & general principles
of source-(1) Primary (2)Secondary Source – Judicial Decisions and teachings
Source,(2)Secondary reputed author .
Source
There are seven types of (1)International conventions whether general or
source,namely, (1) particular, established rules expressly recognized by the
International contesting states; (2) International Custom, as evidence
Conventions, (2) custom of a general practice accepted as law; (3) General
(3) general principles (4) Principles of law recognized by civilized nations. (4)
Judicial Decisions (5) Judicial decisions (5) Teaching (Book) of the most highly
teachings of reputed qualified publicists, (6) Ex acquo et bono (7) Resolution
author (6) Ex acquo et of UNO-Nicaragua vs.USA,1986
bono (7) Resolution of
UNO
B International INTERNATIONAL CONVENTIONS (TREATIES)
Conventions
Most important source There are two types of conventions (1) General
of law. Earlier ‗Custom‘ Conventions (2) Particular Conventions. (1) General
was most important Treaty (Law Making Treaty)- General treaties are those
source of law. wherein most of the States of the world community are
parties and which are open to accession by others. It
141
creates general norms of conduct for whole country .Hague

Convention, 1899and 1907and Renunciation of War, 1928.
Law making treaties perform the same functions in the
international field as legislation does in the State field.
(2)Particular Treaties (Treaty Contracts) -Particular
treaties are generally referred to bilateral treaties, or
pluriateral treaties or ordinary treaties wherein number of
parties is two or more than two. They are also known
contractual types of treaty or treaty contracts.
C INTERNATIONAL Usage is the early stage of custom. It is not necessary that
CUSTOM (International the usage should always precede a custom. It is also not
Custom, as evidence of a necessary that a usage must always become a custom. In
general practice accepted certain cases a usage may become a custom, in certain
as law)- It is the oldest other cases, it may not become.
and original source of J.J.Starke ―Usage represents the twilight stage of custom ,
law. J.J.Starke Usage is custom therefore begins where usage ends.‖
twilight
Formation of There are four essential ingredient which are require for
Customary Rule. Opinio formation of customary rule (1)Long Duration (2)
Juris et necessitates Uniformity or consistency (3) Generality of practice (4)
means States must Opinio Juris et necessitates .
recognize the custom as
binding upon them as
law.
(1) Long Duration North Sea Continental Self Case and Military and Para-
Military Activities in and Against Nicaragua Case (1986).
Even in certain cases short period is sufficient to form
practice.
West Rand Central For a valid international custom it is necessary that it
Gold Mining Company should be proved by satisfactory evidence that the custom
Ltd. Vs. R. (1905). In is of a such nature that it has received general consent of
this case ‗test; regarding the States and no civilized state shall oppose it.
the general recognition of
custom was laid down.
Portugal vs. India, 1960 When any regard to any matter or practice , two States
follow it repeatedly for a long time , it becomes a binding
customary rule.
Opinio Juris et In the Lotus case, Permanent Court of International Justice
necessitates (Lotus case observed that Opinio Juris is an essential element in the
&North Sea Continental formation of Customary law. Same principle was
Case) propounded in North Sea Continental Case.
D GENERAL General principles of law recognized by civilized nations
PRINCIPLES OF LAW means those principles which have been recognized by
RECOGNIZED BY civilized nations of the world community in their
CIVILIZED NATIONS. domestic law. For example- Justice, equality and
Conscience, Res Judicata, Estoppel, Circumstantial
142
Evidence.
Justice, equality and R. Vs. Keyn (1876). International law is based on justice,
Conscience equity and good conscience which has been accepted by
long practice of States.
Res Judicata (1) Chorzow Factory (Indemnity Jurisdiction) Case, (1928)
(2) Diversion of Water from Meuse,(1937).
Doctrine of Estoppel (1) Diversion of Water from Meuse,(1937),) (2) Temple of
Preah Vihar (1962), (3) Barcelona Traction Case (Second
Phase)(1970).
Doctrine of Subrogation Mavrommatis Palestine Concession Case
Frontier Dispute Case The Court of Justice held that it can take the help of that
( Faso vs. Mali) equity which both the parties have accepted or given
consent to.
E JUDICIAL According to Article 38(1) (d) Judicial Decision is
DECISIONS subsidiary source of law. According to Article 59, decision
of ICJ has no binding force except between the parties and
in respect of that particular case. Due to Article 59, Rule of
Precedent is not followed. So By Art. 38, judicial decision
was declared subsidiary source of law. But in practice,
judicial decisions are very relevant.
F Teaching (Book) of the Grotius, Vattel and Bynkershoek are amongst those
most highly qualified whose writing have been quoted by ICJ and others
publicists Tribunals, for example Diversion of Water from Meuse.
Pacquete Habana Case The works and opinions of jurist could be resorted to for
(USA Supreme Court- the evidence of customs and usages. ―..Where there is no
1900) Justice Gray treaty and no controlling executive of legislative act or
judicial decision, resort must be had to the customs and
usages, of civilized nations and as evidence of these , to the
works of jurists and commentators who by years of labour
research and experience have made themselves peculiarly
well acquainted with the subjects which they treat…..‖
G EX ACQUO ET BONO EX ACQUO ET BONO means ―according to right and
good‖ of ―from equity and conscience.‖ This source would
be applied only when both the parties have authorized the
court to decide the case according to good conscience.
Then court does not follow any source of law.
F RESOLUTION OF General Assembly performs the functions of law- making
GENERAL in two ways – Firstly, It makes international agreement for
ASSEMBLY example, The Genocide Conventions , 1949, International
Conventions On Rights of the Child ,1989. Secondly- By
its subsidiary law making organs such as the International
Law Commission and U.N. Commission on International
Trade Law.
CHAPTER III RELATION BETWEEN I.L. AND MUNICIPLE LAW
143
THEORIES (These (1) Monism/Monistic Theory (2) Dualism Theory (3)

theories have been put Specific Adoption Theory (4) Transformation Theory (5)
forward to explain the Delegation Theory
relationship between
international law and
State law.)
(1) (1)MonismTheory, Emphasize on scientific study of internal structure of law.
Moser, Martens & Law is unified branch of law. ‗Mono‘ means single.
Kelsen, (AustrianJurist According to this theory municipal law as well as
1881-1973). Municipal international law are parts of universal (one) legal system .
and IL are branch of Law is seen as a single entity of which national and
mono law, namely, international versions are merely particular manifestations.
Universal Legal System.
(2) (2) Dualism Theory Municipal and I.L.both are different. For example, both
(Two- Municipal and IL have different source(IL- Custom grows all over the world,
are not branch of same ML- Custom grows within the particular territory of each
law. Both are totally Nation.) , regarding subjects (I.L.-Mainly relation between
different.) Triepel, states, ML- mainly relations between State and
Anziloti , and individuals.).
Oppenheim.
(3) (3) Specific Adoption International law cannot be applied in the field of
Theory. Article 253 municipal unless Municipal Law either permits it or adopt
it specifically. Here Article 253 of constitution of India
may be quoted.
(4) (4) Transformation Without transformation, international law cannot be
Theory applied in the field of Municipal law.
(5) (5) Delegation Theory Internationl law has delegated power to every nation how
to apply IL in their country.
CHAPTER IV RECOGNITION
(1) RECOGNITION OF STATE

A Meaning of State-Four Montevideo Convention on the Rights and Duties of
attributes are required, States, 1933, Article 1- ―The State as a person of
namely, Article 1; International Law should possess the following
(a)Population qualifications: (a) a permanent population ;( b) a defined
(b)Territory(c)governme territory; (c) a government; and (d) capacity to enter into
nt(d) Sovereign relations with other States.
B Meaning of Recognition When one State either declares or treats another entity as
equivalent to its, it is called recognition of one state by
another state.
C Theories of Recognition (1) Declaratory theory, (2) Constitutive Theory.
144
I DECLARATORY According to this theory, only four essential ingredients

THEORY ( Hall, Brierly ((a) Population (b) Territory(c) Government (d)
& Fisher) (Clue word toSovereign) are necessary and recognition by one State is
remember-BF in Hall) merely a declaration of existing fact. Recognition is not
the fifth ingredient of ‗State‘.
Hall ―A State enters into the family of nations as a right when
it has acquired the essential attributes of statehood‖.
Brierly ―A State may exist without being recognized by other
States, and if it does exist in fact, then, whether or not it
has been formally recognized by other states, it has a right
to be treated by them as a State.‖
Ii (2)CONSTITUTIVE According to this theory, There are five essential
THEORY.(Anzilotti, ingredient of State-(a) Population (b) Territory (c)
Hegal, Holland and Government (d) Sovereign and (e) recognition by State.
Oppenheim) Personality of a state is created not by fact but through
recognition by other States. A new entity cannot become a
state ipso facto. To be State, recognition is sine qua non.
Oppenheim ―State is, and becomes an International Person, through
recognition only and exclusively.‖
Lauterpacht Granting of recognition is a duty of State.
2 TYPES OF (1)Recognition of State, (De facto & De Jure) (2)

RECOGNITION Recognition of Government (a) Tobar Doctrine and (b)
Estrada Doctrine(c) Stimson Doctrine(d) Hallestein
Doctrine. ( De facto & De Jure) (3) Recognition of
Belligerency (4) Recognition of Insurgency
A De Facto Recognition. Oppenheim, ―De facto recognition takes place, when in
Generally, De Facto the view of the recognizing States, the new authority
recognition is granted although actually independent and wielding effective
prior to De jure power in the territory under its control , has not acquired
recognition. USSR was sufficient stability…‖ De Facto Recognition may be
recognized by Great withdrawn.
Britain –De fact in 1921
and De jure in 1924.
B De Jure Recognition De Jure recognition is granted when an entity gets all
essentials of statehood with stability. Recognition is a
political matter. Sometimes De jure recognition is granted
without granting de facto recognition. For example India
and Bhutan granted De Jure recognition to Bangladesh on
06 Dec., 1971 after three days of war between Pak- Indo
without granting de facto recognition. De jure recognition
cannot be withdrawn.
C DIFFERENCE DE FACTO & DE JURE
BETWEEN
Oppenheim ―Recognition de facto is indistinguishable from de jure
recognition inasmuch as the legislative and other internal
145
measures of the authority recognized de facto are, before

the court of the recognizing State , treated on the same
footing as those of the State or Government recognized de
jure.‖
Schwarzenberger ―De facto recognition is by nature provisional and may be
made dependent upon conditions which the new entity has
to comply. It differs from de jure , in that there is not yet a
formal exchange of diplomatic representative . De jure
recognition ….is complete , implying , full and normal
diplomatic relations.‖
1921 Luthar vs. Sagor There is no distinction between de facto and de jure
recognition for the purpose of giving effect to the internal
acts of the recognized States.
1937 Bank of Ethiopia vs. Do.
National Bank of Egypt
and Liguuori
1939 Arantzazu Mendi Case Nationalist Government of Spain which was recognized as
a de facto government of the part of Spain under its
control, was entitled to jurisdiction immunity in an action
brought against it by the de jure Government of Spain.
1952 Civil Air Transport Inc. The case laid down two important preposition, (1)Where
vs Central Air Transport State is granted ‗de facto‘ recognition initially and ‗de jure‘
Corporation recognition later on , the effect of recognition starts from
the date of ‗de facto‘ recognition. (2) Retroactive effect of
de jure recognition of a Government did not mean that
legal acts performed by other or previous de jure
government would become invalid.
Difference between de In case of de facto recognition- (1) No full diplomatic
facto and de jure relations and immunities (2) Recognized States cannot
claim property situated in recognizing states. (3) It may be
withdrawn. (4) Generally it is prior stage of recognition.
D Recognition of Clue word to remember- Tobar means True. True

Government (Tobar means legitimate. So Tobar doctrine is also called Doctrine
Doctrine and Estrada of legitimacy. If the Government has come into power by
Doctrine).(1)Tobar legitimate manner rather than by force, recognition shall be
Doctrine /Doctrine of given only to that Government. Example-How can any
legitimacy (1907 & country say that Indian Government has come power by
1923)-Tobar was Foreign tampering EVM machine rather than legitimate manner? In
Minister of Equador. this way, main defect of this theory was that it was
interfering in domestic matter of State.
(2) Estrada Doctrine/ To remove the defect of Tobar Doctrine , Estrada
Doctrne of effectiveness Doctrine was propounded. According to this theory,
or Continuity (1930)- Recognition shall be continued, it is immaterial how
Estrada was Foreign Government has been formed whether by legitimate
Minister of Mexico. manner or illegitimate manner. Diplomatic relation would
146
be continued. This doctrine is also called doctrine of

effectiveness.
(3) Stimson Doctrine , According to this doctrine, if a State grants recognition to
Secretary of State of another State in violation of international treaty , such a
USA (Non recognition recognition would not be valid.
Doctrine)
Hallestein Doctrine This Doctrine was propounded in the context of division of
Germany in two i.e. East & West Germany. According to
this doctrine no State should have diplomatic relations with
both Germany. After the unification of Germany ,this
doctrine has no relevancy.
CHAPTER V UNITED NATIONS ORGANIZATION
Kelson Main purpose of UNO is establishment of ‗world peace‘.
1941 Declaration of St. James Representative of several countries met at the ancient St.
June Palace James Palaceand signed a declaration which is known as
London Declaration.
1941 Atlantic Charter Meeting of British P.M. Churchil and USA President
Aug. Roosevelt ‗Somewhere at sea‘ in August,1941,
1942 The United Nations Representative of 26 states participated and first time
Jan. Declaration(Washingto ‗United Nations‘ words were used. The name United
1. n) Nations was devised by Franklin D. Roosevelt, USA
President.
1945 Yalta Conference Yalta Conference between Britain, USA and USA and
Feb decided to convene a general conference of about 50
nations for the preparation of Charter of U.N. on 25April,
1945.
1945 San Francisco 25April, 1945 to 25June, 1945. Attended by 51 Nations.
June COnference Final shape was given to Charter and Statute of ICJ. On 26
June, 1945, 50 Nations signed. Poland signed Oct.15,
1945.
24Oct,1945 Charter of United Nations came into force..
Some Important Article
of UNO
Article 1 Purposes of United Nations, Article 1(1) To maintain
international peace and security .Article 1(2) To develop
friendly relations among nations (Principle of self-
determination of law has been incorporated in the Charter
of the United Nations under Articles 1(2), 55 and 55.)
Article 1(3) To achieve international co-operation to
solving international problems related to economic social
etc. Article 1(4) To make the United Nations an
International forum for harmonization.
Article 2 Principles of United Nations Article 2 -Para (1)-Principle
of Sovereign Equality. Para (2)-Fulfilment of obligation in
good faith. Para (3)-Peaceful settlement of international
disputes. Para (4) - Non-use of force .Para (5) Para –
147
Assistant to the United Nations. Para (6) Responsibility of

Non-members. Para (7) –Non-intervention in Domestic
matters of a State.
Articles 3 & 4 Members – Original Members(3) and Subsequent
Members(4)
Articles 5&6 Suspension (5) and Expulsion(6)
Article 7 Organs. There are two types of ‗Organs‘ (1) Principle
Organs (2) Subsidiary organs.
Six Principle Organs- (1) General Assembly- CHAPTER-IV (Articles 9-22)
Article 7 (2) Security Council CHAPTER-V(Articles 23-32)
(3) Economic and Social Council CHAPTER-X (Articles
61-72) (4) Trusteeship Council CHAPTER-XIII (
Articles 86-91) (5) International Court of Justice
CHAPTER-XIV (Articles 92-96) (6) Secretariat
CHAPTER-XV(Articles 97-101).
Article 9 Composition of General Assembly
Article 17 Budget
Article 23 Composition of Security Council
Article 24 Primary Responsibility to maintain Peace and Security is
of Security Council
Article 27(3) Veto Power on any matters other than ‗Procedural
matters‘
Articles 33-38, Chapter- Pacific Settlement of Disputes
VI
Articles 39-51, Chapter- Actions with respect to threat or breach to the peace and
VII acts of aggression
Article 40 Provisional Measures (Cease fire)
Article 41 Use of interruption other than armed forces. For example-
Complete or partial interruption of economic relations and
of rail, sea, air, radio and other forms of communications
and also severance of diplomatic relations.
Article 42 Use of Armed forces. Article 42 would be applied when
Article 41 is not an adequate.
Article 51 Self-Defence (Military and Para-Military Activities Case,
1986.
Article 52 Regional Arrangement, For example, SAARC, ASEAN
etc.
Article 61 ECOSOC Composition (Fifty Four members, Term -3
years.
Article 86 Composition-The Trusteeship Council
Article 92 ICJ is principle judicial organ.
Article93 Membership
Article 94 Enforcement of judgment by Security Council.
Article 96 Advisory opinion
Article 97 Secretary General is Administrator of UNO.
Article102 Registration of treaties.
148
Article 103 Supremacy of Charter

Article104 Legal Capacity of UNO
Article105 Privileges and immunities (Pari material to Article 105 of
Indian Constitution)
Article108 Amendment
Article111 Total Articles 111. Text of UNO in Five Language-(1)
Chinese,(2)French(3)English(4)Russion(5)Spanish
1 GENERAL GENERAL ASSEMBLY CHAPTER-IV (Articles 9-22)

ASSEMBLY
Works of General Assembly may be divided into two parts
(1)Some works which are done independently (2) Some
works which are done on the recommendation of Security
Council
(1)some works which (1) Passing of Budget (Article 17) (2) All the members of
are done independently ECOSOC (54 members) are elected by the General
assembly Article-61 (3) Appointment of Judges of
International Court of Justice. Although Security Council
also participate in election of Judges- Article 4 of Statute
of International Court of Justice (4) Other organs ( except
General Assembly and Security Council ) and specialized
agencies may be authorized by the General Assembly to
take advisory opinion from ICJ.-Article 96 (2).
(2)Some works which (1) Admission of new member (article 4), (2) Suspension
are done on the of member (article 5), and (3) Expulsion of member
recommendation of the (article 6). (4) Appointment of Secretary General – Article
Security Council 97. (5)
1949 REPARATION FOR REPARATION case- UNO is an international person.
INJURIES SUFFERED
IN THE SERVICE OF
THE UNITED
NATIONS
1962 Certain Expenses of the General Assembly passed ‗Uniting for Peace‘ resolution
United Nations on 03 Nov. 1950. In the case of Certain Expenses of the
United Nations, ICJ approved the validity of ‗Uniting for
Peace‘ resolution.
Little Assembly Little Assembly has been created by General Assembly
under Article 22. Under this Article General Assembly has
established International Law Commission, (1947),
UNCTAD(1964), UNITAR (1952) and IDA (1966).
(2) Security Council Seats of Permanent members can be increased by Special

CHAPTER-V(Articles Resolution of Security Council.
23-32
Year Permanent members Member of Security Council
1945 USA,USSR,UK, France 11(5 Permanent+6 For Two years) ( Only one time
149
and China members was increased)

1965 15 Members (5 Permanent+10 For Two years)
ARTICLE 27: For the purpose of voting under Article 27 matter has been
VOTING divided into two parts (1) Article 27 (2)Procedural
Matters- Affirmative vote of nine members (2) Article
27 (3) Other than procedural matter/ Substantive Matters-
VETO POWERS, Affirmative vote of nine members
including the concurring votes of the permanent
members.
VETO POWER - DOUBLE VETO POWER- One Veto power-Article 27
Article 27 (3) - Veto (2)( at the time of deciding the nature of matter whether it
power on substantive is procedural or non -procedural ) + Second Veto power
matters. (Article 27 (3)
(3) ECOSOC ( Two times ECONOMIC AND SOCIAL COUNCIL CHAPTER-X
members were (ARTICLES 61-72)
increased)
1945 Members 18
1965 Members 27
1971 Members 54
(4) Trusteeship Council
CHAPTER-XIII (
Articles 86-91)
(5) ICJ CHAPTER-XIV 15 Judges (called as Members of the Court.). President

(Articles 92-96) and Vice President are appointed for three years. As a
judge, member is elected for 9 years( Article 13 of Statute
of ICJ.). First Lady as a judge is Rosalyn Higgins.
JURISDICTION (1) Contentious Jurisdiction- Forum Prorogatum (2)
Advisory Jurisdiction
Contentious Jurisdiction- (1) Voluntary Jurisdiction –Article 36(1) (2) Ad hoc
Jurisdiction(3) Compulsory Jurisdiction- Article 36(2)
Forum Prorogatum Consent is not required to be given in any particular form
. In certain cases , the Court may infer it from the conduct
of the parties . The consent of the State to the
jurisdiction of the court may also be established by
means of act subsequent to the initiation of the
proceeding which is referred to as the doctrine of
Forum Prorogatum .
Optional Clause Article 36-Optional clause provides the parties to the
Statute may at any time declare that they recognize as
compulsory ipso facto and without special agreement, ―In
relation to any other State accepting the same
obligation.
6 Secretariat CHAPTER-
150
XV(Articles 97-101).
YE LEADING CASES IMPORTANT POINT

AR
1876 R.Vs. Keyn Definition of I.L.(Civilized States & collection of usages)
1900 Pacquete Habana Case Justice Gray, ―International Law is part of our law, and
(USA Supreme Court) must be ascertained and administered by the Courts of
Justice Gray Justice of appropriate jurisdiction….‖
1905 West Rand Central Gold Definition of I.L ( aggregate of the rules)
Mining Co. Vs. R.
1921 Luthar vs. Sagor There is no distinction between de facto and de jure
recognition for the purpose of giving effect to the internal
acts of the recognized States.
1925 Mavrommatis Palestine Doctrine of Subrogation
Concession Case
1927 France v. Turkey Lotus Case, Jurisdiiction on High sea. On 2nd August ,
Lotus Case 1926collision occurred between the French mail
steamer Lotus and Turkish collier on High Seas..
Custom as a source.
1928 Chorzow Factory Res Judicata
(Indemnity Jurisdiction)
Case,
1928 Netherlands v. United Island of Palmas Case
States
1937 Bank of Ethiopia vs. Principles laid down in Luthar vs. Sagor were followed.
National Bank of Egypt
and Liguuori
1937 Diversion of Water from Res Judicata and Doctrine of Estoppel
Meuse,(1937).
1939 Arantzazu Mendi Case Nationalist Government of Spain which was recognized as
a de facto government of the part of Spain under its
control, was entitled to jurisdiction immunity in an action
brought against it by the de jure Government of Spain.
1942 U.S. vs. pink Air law
1949 Reparation for Injuries United Nations Organization is international person.
Suffered in the Service
of the United Nations
Case.
1949 Corfu Channel Case, (State responsibility- modes of reparation-use of
Disbute between Albania circumstantial evidence-right of innocent passage- passage
and Britain of warships through territorial waters-s
1950 ASYLUM CASE (Regional Custom- Essential Requirements)
Columbia v. Peru
1952 Civil Air Transport Inc. The case laid down two important preposition, (1)Where
vs Central Air Transport State is granted ‗de facto‘ recognition initially and ‗de jure‘
Corporation recognition later on , the effect of recognition starts from
151
the date of ‗de facto‘ recognition. (2) Retroactive effect of

de jure recognition of a Government did not mean that
legal acts performed by other or previous de jure
government would become invalid.
1954 Effect of awards of (Application of the Principle of Res judicata)
compensation made by
the united nations
administrative tribunal
advisory opinion of i.c.j.
1960 Portugal v. India RIGHT OF PASSAGE OVER INDIAN TERRITORY
CASE
1962 Certain Expenses of the General Assembly passed ‗Uniting for Peace‘ resolution
United Nations on 03 Nov. 1950. In the case of Certain Expenses of the
United Nations, ICJ approved the validity of ‗Uniting for
Peace‘ resolution.
1962 (2) Temple of Preah Doctrine of Estoppel
Vihar
1969 North Sea Continental (Whether Article 6 of the Geneva Convention on
Shelf Cases, ICJ Rep. Continental Shelf customary rule? Principles applicable in
1969, the delimitation of continental shelf)
1970 Doctrine of Estoppel Barcelona Traction Case (Second Phase).
1985 Frontier Dispute Case The Court of Justice held that it can take the help of that
( Burkina Faso vs. equity which both the parties have accepted or given
Republic of Mali) consent to.
1996 Advisory Opinion of ICJ
on the Legality of the
Threat or Use of Nuclear
Weapons,
1998 Spain Vs. Canada Fisheries Jurisdiction Case
2010 Accordance with Advisory Opinion of ICJ , Kosovo Case, (Resolutions of
International Law of the Security Council as a source of international law)
Unilateral Declaration of
Independence in Respect
of Kosovo Case, 2010

Rank) and UPSC as 1st rank holder .
152
INDIAN PENAL CODE, 1860

PART-1
ALL IMPORTANT MAXIMS RELATED TO CRIMINAL LAW
S.N. MAXIM MEANING
1 Whenever any penal law is applied or construed , and that law is
Doctrine Pro Reo giving two interpretation, one lenient to the offender and one strict
to the offender , that interpretation which is lenient or favorable to
the offender will be adopted.
2 Nullum Crimen Sine There must be no crime or punishment, except in accordance with
Lege, Nulla Poena fixed predetermined law.
Sine Lege This maxim ―Nulla Poena Sine lege‖ conveys four different rules,
No law, No Conviction namely,
or Punishment. (1)Non retroactivity of penal laws.It means penal laws which are
(1)Non retroactivity of against the interest of accused will not be applied from retrospective
penal laws. effect. But it does not prohibit accused form taking benefit of
(2) Penal statutes must restrospective laws. In the case of Rattan Lal vs. State of Punjab,
be construed strictly 1965 S.C. Supreme Court also interpreted article 20 (1) and said
(3)Certainty in that ― Ex post facto laws which are beneficial to the accused is not
legislation. prohibited by Art. 20(1) of the Constitution.In this case Justice
(4) Accessibility of the Subba Rao said, ―the object of criminal law is more to reform the
laws. individual offender than to punish him.
(2) Penal statutes must be construed strictly. .It directly affects
Fundamental Rights. So it must be construed strictly.
(3) Certainty in legislation. It should not be construed in such a way
as to cover every act
(4) Accessibility of the laws. Laws are binding over every people.
So it must be published in proper way so that every people may
know it. Harla vs. State of Rajasthan, 1952 S.C. ―It would be
against the Principle of natural justice to permit the subjects of a
State to be penalized by laws of which they had no knowledge and
of which they could not even with the exercise of due diligence have
acquired any knowledge . Natural justice required that before a law
can be operative it must be promulgated and published.
3 Actus non facit reum , The act itself does not make a man guilty, unless the mind is also
nisi mens sit rea guilty. There are four essentials ingredient of crime, namely,(1)
Sherras v. De Rutzen Human Being (2) Guilty Mind (3) Prohibited act, (4) An injury to
1895. human being or society.This maxim denotes that guilty mind and
Justice Wright prohibited act both are part and parcel of crime. It is rule that
without guilty mind, crime cannot be committed. Justice Wright
―In every statute mens rea is to be implied unless contrary is shown‖
Brend vs. Wood, Justice Goddard, ―The general rule applicable to
criminal case is actus non facit reum nisi mens sit rea…It is of the of
the utmost importance for the protection of the liberty of the subject
that a court should always bear in mind that, unless the statute,
either clearly or by necessary implication rules out mens rea as a
153
constituent part of a crime, a defendant should not be found guilty

of an offence against the criminal law unless h5e has got a guilty
mind‖.
4 Actus me invito factus An act done by me against my will is not my act at all. (Section
non est mens actus 94- An act to which a person is compelled by threats…)
5 Autrefois acquit and Previous acquittal or previous conviction may be pleaded by the
Autrefois convict accused as a bar to the subsequent trail.
Article 20 (2) Article 20 (2) embodies only the principle Autrefois convict and
NOT Autrefois acquit. Previous prosecution as well as conviction
both is necessary for claiming the constitutional plea against second
trial for the same offence.
300(1) Cr.P.C. 300(1) Cr.P.C. embodies both Autrefois acquit as well as Autrefois
convict.
6 Nemo debet A man may not be put twice in jeopardy for the same offence.
proeadem causa bis Article 20 (2) & 300(1) Cr. P.C.
vexari
7 Ignorantia facit Ignorance of fact is excused, but ignorance of law is not excused.
excusat Ignorantia Section 76 of IPC.
juris non excusat
8 Ignorance of law is no (1) Ignorantia juris non excusat (2) Ignorantia legis non excusat (3)
excuse( Sec.76 of IPC) Ignorantia legis neminem excusat
9 Ignorance corumquoe Ignorance of those things which one is bound to know does not
scire tenetur non excuse.
excusat(Sec.76 of
IPC)
10 Quod necessitas non Immediate necessity does no know law. Section 81 ,IPC.
habet legem
11 Doli Incapax A person is deemed incapable of forming the intent to commit a
Sections 82 and 83 crime or tort, especially by reason of age. Sections 82 and 83 ( In
case of section 83, if a child is not capable to understand nature and
consequence of his conduct on that occasion).
12 Doli Capax Sections Capable of committing the crime. Section 83 and other section.
83andother sections (In case of section 83, if a child is capable to understand nature and
consequence of his conduct on that occasion).
13 Non compos mentis The Latin non compos mentis translates as ―of unsound mind‖
Sections 84 to 86 There are four kinds of persons who may be said to be not of sound
mind, namely, (1) An idiot (2) A lunatic or a madman (3) Non
compos mentis by reason of illness (4) One who is drunk
14 Furiosis nulla A man mad has no will.( Without mens rea person cannot be
voluntas Section 84 convicted- Actus non facit reum , nisi mens sit rea) Sec.84
15 Furiosus absentis low A mad man is like one who is absent. Section 84
est Section 84
16 Furiosus furore sui A mad man is punished by his own madness Section 84
punier
KIND OF INSANITY There are two kinds of insanity,(1) Insanity by birth (2) Insanity
154
after birth
17 Dementia naturalis Individuals who are insane by birth
18 Dementia adventitia Individuals who becomes insane after his birth.
or accidentialis
19 Compos mentis "having control of one's mind"
20 Delirium tremens It is a kind of insanity, it occurs due to over drinking or habitual
(Medical Juris.) drinking
21 Volenti non fit injuria To which a man consents cannot be considered an injury. Section 87
22 De minimis non curat Law does not concern itself with trifles. Section 95. Rupan Deol
lex Bajaj vs. KPS Gill, 1996 S.C. Courtheld that section 95 is not
applied in case of offences against women. In this case the Court did
not applied section 95.
120A CRIMINAL CONSPIRACY
23 Actus contra actum A contract contrary to law.
ATTEMPT SECTION 511
24 Inchoate crime An inchoate offense, preliminary crime, or inchoate crime,
incomplete crime is a crime of preparing for or seeking to commit
another crime. The most common example of an inchoate offense is
―attempt‖
25 Doctrine of Locus An opportunity to withdraw from a contract or obligation before it is
Paenitentiae completed or to decide not to commit an intended crime. Malkiat
Singh vs. State of Punjab
8 November, 1968 S.C.
26 Cogitationis poenam No man can safely be punished for his guilty purpose, save so far as
nemo patitus they have manifested themselves in overt acts which themselves
proclaim his guilt. (Proximity Rule)(1) Abhayanand Mishra vs. State
of Bihar 1961 (2) Om Prakash vs. State of Punjab 1961 (3) Sudhir
Kumar Mukherjee vs. State of West Bengal, 1973 (4) State of
Maharastra vs. Mohammad Yakub, 1980
155
IMPORTANT STATEMENTS
1 Justice ―In every statute mens rea is to be implied unless contrary is shown‖
Wright
2 Justice Brend vs. Wood, Justice Goddard, ―It is of the of the utmost importance for
Goddard, the protection of the liberty of the subject that a court should always bear in
mind that, unless the statute, either clearly or by necessary implication rules
out mens rea as a constituent part of a crime,
3 Milton ―They also serve who only stand and wait‖. Later on it was used in law by
Lord Sumner in case of Barendra Kumar Ghosh vs. king Emperor, 23
Oct.1924.
4 Lord ―They also serve who only stand and wait‖. Barendra Kumar Ghosh vs.
Sumner king Emperor, 23 Oct.1924.P.C. Post Office case.
5 Sir Mahaboob Shah vs. Emperor, 1944, Sir Madhavan Nair, ―…Care must be
Madhavan taken not to confuse same or similar intention with common intention, the
Nair partition which divides ‗their bonds‘ is often very thin ; nevertheless, the
distinction is real and substantial , and if overlooked , will result in
miscarriage of justice..‖
6 Justice He advocated for abolition of death sentence. ―Since every saint had a past
Krishna Iyer and every sinner a future ….‖
7 Lord Lord Coleridge ―To preserve one's life is generally speaking a duty, but it
Coleridge may be the plainest and the highest duty to sacrifice it. War is full of instances
in which it is a man's duty not to live, but to die.‖ R. vs. Dudley and Stephan
8 Melvill 1876 R. vs. Govinda- Difference between culpable homicide and murder
9 Justice In the scheme of the Penal Code, culpable homicide' is genus and 'murder' its
Ranjit Singh specie. All 'murder' is 'culpable homicide' but not vice versa.
Sarkaria,1976
Difference between culpable homicide and murder
10 Justice ―The distinction between preparation and attempt may be clear in some cases,
Raghubar but, in most of the cases, the dividing line is very thin. Nonetheless, it is a real
Dayal, distinction.‖ Abhayanand Mishra vs. State of Bihar.
11 Justice Abhayanand Mishra vs. State of Bihar. Definition of attempt- such an act need
Raghubar not be the penultimate act towards the commission of that offence but must
Dayal, be an act during the course of committing that offence.
156
TOPIC-TWO
THE INDIAN PENAL CODE, 1860
SYLLABUS 2ND PAPER 3RD PAPER (75 Questions)
OF NET (50 Questions)
General Principles  General Principles of Criminal Law-meaning, nature,
Nature and Definition essentials and stages of offence.  Joint Liability; Abetment
of Offence.  General and Criminal Conspiracy.  Offences against Human Body. 
Exceptions  Common Offences against Property.  Defamation
Intention and
Common Object. 
Criminal Attempt,
Conspiracy and
Abetment.  Offences
against Women.
INTRODUCTION Prime object of criminal law is the protection of the public.
Lord Lord Sir Thomas He was appointed as the first Law Member of the Governor-
Macaulay, James Babington General's Council. He came to India in 1834, and served on
―I would Macaulay (1800- the Supreme Council of India between 1834 and 1838.First
rather be 1859) Pre- Independence Law Commission (1834-1840) was
poor in a FATHER OF constituted. Chairperson of this Law Commission was Lord
cottage full INDIAN PPENAL Macaulay and members of this Commission were (1) J.M.
of books CODE,1860. Macleod, (2) G.W. Anderson, and (3) F. Millet. Penal Code
than a king Date enacted: Report was submitted on 2nd May 1837.Later on this report
without the 6 October 1860 became Indian Penal Code of which Lord Macaulay was
desire to Date assented to: either sole author or principle author. It was revised by Sir
read." 6 October 1860 Barnes Peacock, eminent lawyer, who subsequently became
Date commenced: Chief Justice Of Supreme Court of Calcutta and Member of
1 January 1862 Judicial Committee of the Privy Council. After 22 years it
Enacted by: became law in 1862.
Legislative Council
MAJOR AMENDMENTS IN IPC

1870 The Indian Penal 124A was inserted. Section 34 was substituted.
Code Amendment
Act,1870
1913 CHAPTER VA-Section 120A & 120B, Criminal Conspiracy
The Indian Criminal was inserted.
157
Law Amendment
Act, 1913
1950 The Repealing and Section 55A Definition of Appropriate Government was
Amending Act, 1950 substituted.
1983 The Criminal Law The 1983 Act discussed what constituted custodial rape,
Reasons (Amendment) Act, provided for enhanced punishments under S. 376(2), and
Mathura 1983. brought in presumption of absence of consent in cases
Case (1979) Tuka Ram & Anr. booked under section 376(2) IPC, 1860. This was done by
Vs. State of bringing in an amendment in the Indian Evidence Act;
Maharashtra (15th section 114(A) IEA]. State v. Subhash, FIR No. 2034 of
September 1978) 1981. [The Satya Rani Chadda campaign contributed to the
known as Mathura following amendments : 1.
Case which led to the
1983 Criminal Law
Amendment Act.
IPC 228A & CHAPTER XXI A-498A were inserted. Definition
and punishment of rape were substituted- Sections 375 and
376.
Indian Evidence Act 113 A- Presumption as to abetment of suicide by a married
woman, and 114A- – Presumption as to absence of consent,
were inserted.
Cr.PC. S. 327(2) In case of rape trial, in camera proceedings to be
conducted; S.327(3) it shall not be lawful for any person to
print or publish any matter regarding proceeding.
1986 The Dowry IPC- Inserted -S. 304B: Dowry Death, Indian Penal Code,
Prohibition 1860, IEA, 1872, Inserted -S. 113B: Presumption as to
(Amendment)Act, dowry death,
1986
2000 The Information Several Amendments were done regarding electronic
Technology Act, matters.
2000
2013 The Criminal Law (1) Section 100 Seventhly.(2) S.166APublic Servant
Delhi Gang (Amendment) Act, disobeying direction under law, Indian Penal Code,(3) S.
Rape Case 2013 First time death 166B Punishment for non-treatment of victim (4) 326 A and
(16Dec.2012) sentence in rape case 326 B (5) S. 354 Assault or Criminal Force to Woman with
& was provided in two intent to outrage her modesty, Indian (6) S. 354ASexual
J.S.Verma circumstances. Harassment and Punishment for Sexual Harassment (7)– S.
Committee Justice Verma 354B Assault or use of criminal force to women with intent
Report- The Committee was to disrobe her,(8) – S. 354C : Voyeurism, ,(9) – S. 354D :
Committee constituted to Stalking, ,(10) – S. 375: Rape, ,(11) –S. 376 : Punishment for
submitted its recommend Rape, ,(12) – S. 376A : Punishment for causing death or
report on amendments to the persistent vegetative state due to rape, ,(13) –S. 376B-Sexual
January 23, Criminal Law so as to Intercourse by husband upon his wife during separation,
2013. provide for quicker ,(14) –S.376C -Sexual Intercourse by a Person in
Death trial and enhanced Authority,(15) - S. 376D – Gang rape, ,(16) - S.376E-
158
Sentence (1) punishment for Punishment for repeat,(17) – S. 509 -Word, Gesture or Act
S. 376A, criminals accused of intended to insult the modesty of a woman,
(2) S.376E committing sexual
assault against
women.
MEANING OF
CRIME
Bentham ―Offences are whatever the legislature has prohibited for
good or for bad reasons ….according to the principles of
utility , we give the name of offence to every act which we
think ought to be prohibited by reasons of some evil which it
produces or tends to produce.‖
Henry Maine An ancient time, penal law is not the criminal law, but it
is wrong law.
UPPCS2002 Blackstone ―Crime is an act committed or omitted in violation of
UP Lower public law either forbidding or commanding it.‖
Blackstone ―Crime is violation of public right or duties due to the
whole community, considered as a community, in its social
aggregate capacity.‖
Austin ―A wrong which is pursued at the discretion of the injured
party and his representative is a civil injury. A wrong which
is pursued by the sovereign or his subordinate is a
crime.‖
UPPCS2005 Stephan ―Crime is an act forbidden by law and which is at the same
time revolting to the moral sentiments of the society.‖
UPPCS2003 Kenny ―Crimes are wrongs which sanction is punitive and is no way
remissible by any private person, but is remissible by crown
alone, if remissible at all.‖ Here sanction means punishment
and remissible means pardon by crown.
Keeton ―A crime would seem to be any undesirable act which the
State finds it most convenient to correct by the institution of
proceedings for the infliction of a penalty, instead of leaving
the remedy to the discretion of some injured party.‖
Millar ―Crime is …to be commission or omission of an act
which the law forbids or commands under pain of a
punishment to be imposed by the State by a proceeding
in its own name.‖
159
ELEMENTS OF CRIME
Actus non ELEMENTS OF Actus non facit reum nisi mens sit rea,( ‗the act alone does not
facit reum CRIME amount to guilt; the act must be accompanied by a guilty mind‘.)
nisi mens sit The concept of crime consists of two essential elements viz., (1)
rea Actus Reus (Guilty act) and (2) Mens Rea (Guilty mind).
1 Actus reas Actus reas guilty act is the physical condition of penal liability.
Actus Reus is defined as a result of voluntary human conduct
which law prohibits. It is the doing of some act by the person to
be held liable an ‗act‘ is a willed movement of body.
2 MENS REA Mens Rea means guilty mind or an evil malafide or information
1. Offences of illegal act. Intention:-Intention is defined as ‗the purpose or
against the State design with which an act is done‘. Negligence is not taking care,
i.e. Waging of where there is a duty to take care. Negligence or Carelessness
war Section 121; indicates a state of mind, viz. absence of a desire to cause a
Sedition - Sec. particular consequence. Recklessness occurs when the actor
124-A; 2. does not desire the consequence, but foresees the possibility and
Counterfeiting of consciously takes the risk.
Coins (Section
232); and 3.
Kidnapping and
Abduction
(Section 359 and
363); 4. Bigamy,
mens rea is not
essential
Strict Liability (1)Public Nuisance (2) Criminal Libel (3) Contempt of Court (4)
Abduction (5) Kidnapping (5) Kidnapping (6) Abduction (7)
Bigamy
1965 S.C. Ranjit D.Udeshi Lady Chatterley‘s Lover. Seller was convicted under section 292
(Hicklin vs. State of for selling this book, although he had no knowledge of this book.
Test) Maharashtra
Mens rea is part
and parcel
1798 Fowler v Padget Fowler claimed that Padget had unlawfully broken into his
Actus reus and house, trespassed and converted his goods. Padget claimed that
mens rea both are he was justified in doing so. Lord Kenyon held that there had
essentials for been no act of bankruptcy, and Fowler's intention in leaving his
commission of house was not fraudulent. Under the Act, only intent to defraud
crime. creditors would amount to an Act of bankruptcy.
160
1895 Sherras v. De Fact-Section 16(2) of the Licensing Act, 1872, prohibited a

Wright J Rutzen licensed victualler from supplying liquor to a police constable
―In every Wright J ―There while on duty. It was held that section did not apply where a
statute mens is a presumption licensed victualler bona fide believed that the police officer was
rea is to be that mens r ea, off duty .
implied an evil intention, Wright J ―There is a presumption that mens rea, an evil
unless or a knowledge intention, or a knowledge of the wrongfulness of the act, is an
contrary is of the essential ingredient in every offence; but that presumption is
shown‖ wrongfulness of liable to be displaced either by the words of the statute creating
the act, is an the offence or by the subject-matter with which it deals, and both
essential must be considered.‖
ingredient in
every offence.‖
1909 Jacob Bruhn v. The Prosecution of the Opium Farmer (2) construed S. 73 of the
The King Straits Settlements Opium Ordinance, 1906. Section 73 of the
said Ordinance stated that if any Ship was used for importation,
landing, removal, carriage or conveyance of any..
1946 Brend v. Wood Goddard C. J. ―It is…............. of the utmost importance for the
Goddard C. J protection of the liberty of the subject that a court should always
Revival of bear in mind that, unless the statute, either clearly or by
Mens rea necessary implication rules out mens rea as a constituent part
of a crime, a defendant should not be found guilty of an offence
against the criminal law unless he has got a guilty mind‖.
Men rea is not a part of crime unless it is expressly provided
by the statute
Kennedy Hobbs vs. ―You ought to construe the statute literally unless there is
Winchester something to show that mens rea is required.‖
Corp.
1889 R. vs. Tolson The appellant married in Sept 1880. In Dec 1881 her husband
Wills J. went missing. She was told that he had been on a ship that was
lost at sea. Six years later, believing her husband to be dead, she
married another. 11 months later her husband turned up. She was
charged with the offence of bigamy. Held: She was afforded the
defence of mistake as it was reasonable in the circumstances to
believe that her husband was dead.
Wills J."Although, prima facie and as a general rule, there must
be a mind at fault before there can be a crime, it is not an
inflexible rule, and a statute may relate to such a subject-matter
and may be so framed as to make an act criminal whether there
has been any intention to break the law or otherwise to do wrong
or not".
R. vs. Prince Henry Prince was accused of abducting a 14 year old girl, Annie
He was convicted Phillips, having believed her to be 18 years old. Such an act was
for kidnapping at that time in violation of Article 55. Prince argued that he had
even though made a reasonable mistake in regards to Phillips' age. Despite his
161
kidnapping was excuse for the crime, he was ultimately convicted.

done in good
fath.Court held
that the provision
does not require
guilty intention or
knowledge.
3 February, The Indo-China GAJENDRAGADKAR C. J. ―The intention of the legislature
1964 Steam Navigation in providing for the prohibition prescribed by s. 52A is, inter
Co. Ltd. v. Jasjit alia, to put an end to illegal smuggling which has the effect of
Singh, Addl. disturbing very rudely the national economy of the country. It is
well-known, for example, that smuggling of gold has become a
serious problem in this country and operations of smuggling are
conducted by operators who work on an international basis. The
persons who actually carry out the physical part of smuggling
gold by one means or another are generally no more than agents
and presumably, behind them stands a well- knit Organisation
which, for motives of profit making, undertakes this activity.‖
24 State of The respondent, a German smuggler, left Zurich by plane on 27

August, 1964 Maharashtra vs. th November 1962 with 34 kilos of gold concealed on his
S.C. M.H.George person to be delivered in Manila. The plane arrive in Bombay
on the 28th but the respondent did not come out of the plane.
The Customs Authorities examined the manifest of the aircraft
to see if any gold was consigned by any passenger, and not
finding any entry they entered the plane, searched the
respondent, recovered the gold and charged him with an
offence under ss. 8(1)and 23(1-A) of the Foreign Exchange
Regulation Act (7 of 1947) read with a notification dated 8th
November 1962 of the Reserve Bank of India which was
published in the Gazette of India on 24th November.
N.Ayyangar, Majority opinion He was held guilty.

J.R.Rajagopa
la
Mudholkar,
K.SUBBA Minority opinion He was not held guilty.

RAO J.
22 March, Nathu Lal vs. S.C. ―The appellant is a dealer in foodgrains at Dhar in Madhya
1965 State of M.P Pradesh. He was prosecuted in the Court of the Additional
He was acquitted District Magistrate, Dhar, for having in stock 885 maunds and
because he had 21/4 seers of wheat for the purpose of sale without a licence and
without any guilty for having thereby committed an offence under Section 7of the
mind. Unless Essential Commodities Act, 1955 (Act X of 1955), hereinafter
162
statute expresslycalled the Act. The appellant pleaded that he did not
exclude,law intentionally contravene the provisions of the said section on the
should beground that he stored the said grains after applying for a licence
construed asand was in the belief that it would be issued to him.
including mens Mens rea is an essential ingredient of a criminal offence.
rea. Doubtless a statute may exclude the element of mens rea, but it
is a sound rule of construction adopted in England and also
accepted in India to construe a statutory provision creating an
offence in conformity with the common law rather than against
it unless the statute expressly or by necessary implication
excluded mens rea.
25 July 1989 State of M.P. vs. The respondents who were lorry drivers, cleaners and coolie
S.C. Narayan Singh were carrying fertiliser bags in trucks from Indore (Madhya
Mens rea is Pradesh) to Maharashtra. They were intercepted at a Sales Tax
essential. Barrier near the border of Maharashtra State. They were charged
under section 511. He was acquitted.
1992 S.C. State of Orissa vs.
K.Rajeshwar Rao
2 THE STAGES If a person commits a crime voluntarily, it involves four
OF CRIME important stages, viz. (1) Intention of Contemplation (2)
Preparation; (3) Attempt; and (4) Commission of Crime or
accomplishment
I INTENTION Intention is mental status, which cannot be traced, so mere
intention is not punishable.
Ii PREPARATION 1. Preparation to wage war against the Government (Section
Generally 122) 2. Any one commits damages to the property and
preparation is also destruction of property within the territories of our country and
not punishable. the country which is with peace with our government (Sec. 126)
But there are 3. Preparation for counterfeiting of coins or Government Stamps
some exceptional (Sections 233 to 235), 255 and 257. 4. Possessing counterfeit
cases when at the coins, false weights or measurements and forged documents
stage of (Section 242, 243, 259, 266 and 474) 5. Making preparation to
preparation , commit dacoity (Section 399)
offence is
punishable,
namely,
Iii ATTEMPT LAW OF INCHOATE CRIME

Sir James Definition of ―An act done with intent to commit that crime, and forming part
Stephen attempt of a series of acts which would constitute its actual commission
‗Digest of if it were not interrupted. The point at which such a series of acts
Criminal begins cannot be defined, but depends upon the circumstances of
Law‘, Art. 50 each particular case.‖
Difference Test Or (1) Proximity Rule or Test.(2) Doctrine of Locus Paenitentiae
between Principles (3) Impossibility Test (4) Job Test
Preparation Related To
163
& attempt Attempt

(1) Proximity Cogitationis poenam nemo patitus (No man can safely be
Rule. Proximity punished for his guilty purpose, save so far as they have
not in relation to manifested themselves in overt acts which themselves proclaim
time and action his guilt.)
but to intention.
24 April, Abhayanand Justice Raghubar Dayal, ―We may summarize our views about
1961 S.C. the construction of s. 511, Indian Penal Code, thus: A personal
Mishra vs. State
Justice of commits the offence of 'attempt to commit a particular offence'
Bihar.
Raghubar Definition when (i) he intends to commit that particular offence; and (ii) he,
of
Dayal, attempt- such an
having made preparations and with the intention to commit the
penultimate act need not be offence, does an act towards its commission; such an act need
act means the penultimate not be the penultimate act towards the commission of that
final act. act towards theoffence but must be an act during the course of committing that
He was commission offence.‖
of
convicted for that offence but The Court held that preparation was complete when the
420 r/w 511. must be an act accused prepared the application for submission to the university
and that the moment , he had dispatched.
during the course
of "The distinction between preparation and attempt may be clear
committing
that offence. in some cases, but, in most of the cases, the dividing line is very
thin. Nonetheless, it is a real distinction. The crucial test is
whether the last act, if uninterrupted and successful, would
constitute a crime.
24 April, Om Prakash vs. B was married to the appellant in October, 1951, but their
1961 S.C. State of Punjab relations got strained by 1953. She was ill-treated and her health
Justice deteriorated due to maltreatment and under-nourishment. In
Raghubar 1956 she was deliberately starved and not allowed to leave the house in w
Dayal, ( section 307 of IPC.
Two
historical
judgments
on the same
date by
same judge).
24 Sudhir Kumar The accused person Sudhir Kumar Mukherjee, an employee of a

September, Mukherjee vs. firm had attempted, in collusion with a limestone dealer, to show
1973 S.C. State of West false delivery of limestone to his company by forging the
Justice A. Bengal signature of his superior on the invoice after which it would be
Alagiriswam presented for payment. At the time when he was caught, he had
i, himself not signed the challan evidencing receipt of the goods.
S.C. followed the ratio of Abhayananda case held that the fact
that a challan had been prepared and that the initial of the
concerned clerk had been obtained by the accused on the challan
showed that definite steps had been taken by the accused to
commit the offence of cheating. He was liable for cheating under
164
section 420 r/w section511.

4March 1980 State of The prosecution alleged that on the night of the
S.C. Maharastra vs. occurrence the respondents carried in a truck and a jeep
Justice R.S. Mohammad silver ingots some of which were concealed in a shawl,
Sarkaria Yakub. He was and some others hidden in saw-dust bags from Bombay to a
held liable. lonely creek nearby and that when the ingots were unloaded near
the creek the sound of the engine of a mechanized sea-craft from
the side of the creek was heard by the Customs officials.
(2) Doctrine of An opportunity to withdraw from a contract or obligation before
Locus it is completed or to decide not to commit an intended crime.
Paenitentiae
8 November, Malkiat Singh Justice V. Ramaswami, ―The test for determining whether the
1968 S.C. vs. State of act of the appellants constituted an attempt or preparation is
Punjab whether the overt acts already done are such that if the offender
Justice V.
Facts-Essential changes his mind and does not proceed further in its progress,
Ramaswami
Commodities Act the acts already done would be completely harmless. In the
,1955, ss. 3 and 7 present case it is quite possible that the appellants may have
and Punjab Paddy been warned that they had no licence to carry the paddy and they
(Export Control) may have changed their mind at any place between Samalkha
Order, 1959, Barrier and the Delhi-Punjab boundary and not have proceeded
para.3.Paddy further in their journey.
consigned from For these reasons, we set aside the conviction of the appellants
Punjab to Delhi-- under s. 7 of the Essential Commodities Act and the sentence of
Truck carrying fine imposed upon each of them.‖
paddy stopped by
police at
Samalkha barrier
post within
Punjab which is
about 14 miles
from the the
Punjab-Delhi
Border.
3 (3) Impossibility Punishing the guilty mind even the act itself is innocent.
Test Section 511 Ill. (a). The crucial aspect is the belief of the
person, and the intention preceding his action to do a particular
act. If he has crossed preparation , then it would be an attempt.
21 July, Asgarali The appellant was convicted under Section 312/511, I.P.C., of an
1933 Pradhania vs attempt to cause a miscarriage. The complainant was 20 years of
Emperor . He age, and had been married but divorced by consent. She was
was not held living in her father's house, where she used to sleep in the
liable for cookshed. He asked her to open her mouth, and approached her
miscarriage. with the bottle, and took hold of her chin. But she snatched the
bottle from him and cried out loudly, and her father and some
neighbours came, and the appellant fled. The police were
165
informed, and upon analysis, sulphate of copper was detected in

the powder, but the amount was not ascertained that was
sufficient for abortion. McNair, J. ―On the facts stated in this
case, and for the reasons already given, the appellant cannot in
law, be convicted of an attempt to cause a miscarriage. What he
did was not an "act done towards the commission of the offence"
of causing a miscarriage. Neither the liquid nor the powder being
harmful, they could not have caused a miscarriage. The
appellant's failure was not due to a factor independent of
himself. Consequently, the conviction and sentence must be set
aside and the appellant acquitted.‖
1958 Malaysia Munah Whether an accused is liable for an attempt to cause abortion,
Binti Ali vs. when the woman (complainant) was not actually pregnant, as it
Public came to be known later. Accused was convicted under section
Prosecuter 312 r/w section 511of the Malaysian Penal Code.
4 Job Test is A person on the job may be held guilty. Aman trying to break
connected to the best of steel safes with totally inappropriate or inadequate
impossibility. instrument , would steel be guilty of attempting to steal, even
though it is probably impossible to actually achieve it.
3 GENERAL
EXCEPTIONS
MISTAKE Ignorantia facti excusat , Ignorantia juris(legis) non (neminem)
execusat. Ignorance of fact is excusable, but ignorance of law is
not excusable.
1960 State of Orissa vs.
Ori.H.C. Ram Bahadur
Thapa
1987 S.C. State of Orissa vs.
Bhagaban Barik
1981 S.C. State of West An act done under the orders of superior authority. S.C. held that
Section 76 Bengal vs. Shew the situation warranted and justified the order to open fire and
Mangal Singh. hence accused got the protection of Section 76 and cannot be
Section 76 held guilty
1989 S.C. Kiran Bedi and A lawyer was apprehended by the students of the St. Stephens
Section 79 Jinder Singh vs. College , D.U. and handed over to the police on the allegation of
The Committee of committing an offence within the campus.The said lawyer was
Inquiry handcuffed and produced before the court. Handcuffing of
lawyer was opposed by other lawyers.
Section80
1950 Tunda vs. Rex Two friends , who were fond of wrestling match.
All.H.C.
1997 Bhupendra Singh Proper care and caution
Chavdasama Vs.
State of Gujarat
SECTION 81 DOCTRINE OF NECESSITY
1551 Reninger In order to avoid a dangerous storm at sea, the defendant,
166
Justice vs.Fogossa Fogossa, violated a statute in the way he docked his ship. By the
Polllard QUID strict terms of the statute, Fogossa should have forfeited the
NECESSITAS goods on board. Fogossa pled the defense of necessity and
NON HABET prevailed.
LEGAM The court held: ― In every law there are some things which
when they happen a man may break the words of law , and yet
not the brweak the law itself and such things are exempted out of
the penalty of the law ….It is common proverb , Quid necessitas
non habet legam…where the words of them are broken to avoid
greater inconvenience or through necessity or by compulsion..
1608 Mouse‘s Case A ferryman was carrying forty-seven people, including one
QUID named Mouse , when a storm threatened the barge. Another, one
NECESSITAS passenger threw the cargo overboard to save the barge. Mouse‘s
NON HABET casket included £113 inside and he sued the passenger for its
LEGAM was loss.
upheld. The court found that in cases of necessity, anyone may act to
save lives and there is no liability to them, although there may be
liability against the ferryman. It was, however, still encumbered
on the ferryman to contribute to the reimburse of the loss.
1884 R. vs. Dudley Lord Coleridge ―To preserve one's life is generally speaking a
Lord and Stephan It is duty, but it may be the plainest and the highest duty to sacrifice
Coleridge a leading English it. War is full of instances in which it is a man's duty not to live,
―To preserve criminal case but to die. The duty, in case of shipwreck, of a captain to his
one's life is which established crew, of the crew to the passengers, of soldiers to women and
generally a precedent children, as in the noble case of the Birkenhead (Birkenheadis
speaking a throughout the the name of British ship); these duties impose on men the moral
duty, but it common law necessity, not of the preservation, but of the sacrifice of their
may be the world that lives for others, from which in no country, least of all, it is to be
plainest and necessity is not a hoped, in England, will men ever shrink, as indeed, they have
the highest defence to a not shrunk.‖
duty to charge of
sacrifice it.‖ murder.
1868 Dhania Daji v The accused was a toddy tapper. He observed that toddy was
Emperor (1868) brewing stolen from the trees regularly. To prevent it, he
poisoned toddy in some of the trees. He sold toddy from other
trees. However, by mistake the poisoned toddy was mixed with
other toddy, and some of the consumers were injured and one of
them had died. He was prosecuted. He took the plea of Section
81.The Privy Council did not accept the contention of the just
necessitas, as mixing poison was done by the accused
intentionally and also with the knowledge that it would cause
grave danger to the people. The accused was punished under
section 328.
167
23 Gopal Naidu The accused was a rich person in a village3. He drank and
December, And Anr. vs created public nuisance and also grave danger to the public. The
1922 King-Emperor village Magistrate arrested him. The accused filed a case against
Bom.H.C the village Magistrate.The court upheld the act of villager
Justice Magistrate as it was necessary to protect the people from the
Phillips grave danger of the drunken accused.
Section 82 Doli The words ―doli incapax‖ means ―incapability of the child‖ to
Incapax distinguish right or wrong. Hence the law grants absolute
immunity to such an infant from wrongful acts. In India -7
years, England-10 Years
Section 83
1950 Ulla Mahapatra In case of doubt of age, benefit shall be given to accused.
vs.King Ulla Mahapatra, is a boy of about twelve years of age, he caused
the death of a Dandasi boy named Ranka Naik . First he
threatned and later on accordin to threating , he cut the deceased
to pieces. He was held liable .
1874 Queen Vs. Charged for crime of setting a fire with intent to cause damage
Lakshmi (Arson). She was aware that by such act she would cause
Agradani damage but not aware about punishment. The High Court held
that the Words ―..consequences of his conduct..‖in section 83 do
not refer to penal consequences.
(AIR 1977 Heeralal vs. A child of eleven years quarreled with the deceased. The child
SC 2236) State of Bihar threatened the deceased that he would cut him into pieces. He
picked up his knife and actually stabbed the deceased to death.
In the prosecution, the defence was pleaded under Sec. 83.
The boy was not entitled to get the immunity under Sec. 83
because his words, gesture, assault, keeping a knife in his
pocket, stabbing the deceased, etc., showed that the child had
attained sufficient maturity of understanding to judge the
wrongful act and also the consequences of his act
PERSON OF UNSOUNND MIND

1 MAXIMS
Non compos mentis Non compos mentis means ― person of unsound mind‖
SECTION 84 There are four kinds of persons who may be said to be
unsound mind (1) An idiot (2) A lunatic or idiot man(3)
Unsound mind by reason of illness (4) One who is drunk
Furiosis nulla voluntas Actus non facit reum , nisi mens sit rea) Sec.84 .A man
without guilty intention can not be punished – Actus non
facit reum, nisi mens sit rea.
Furiosus absentis low SECTION 84 A mad man is like a person who is absent.
est
Furiosus furore sui SECTION 84 A mad man is punished for his madness.
168
punier
2 KIND OF INSANITY SECTION 84 There are two types of insanity, (1) Insanity
by birth , (2) Insanity after birth
Dementia naturalis Individuals who are insane by birth.
Dementia adventitia or Individuals who are insane after birth.
accidentialis
Compos mentis Having controls over own mind
Delirium tremens Individuals who are insane by birth.It is a kind of insanity ,
(Medical Juris.) it occurs due to over drinking or habitual drinking.
3 BRITISH LAW
Test Related to person (1) Wild Beast Test. (2) Insane Delusion Test (3) Bowler
of unsound mind Test (4) M‘ Naghten Rule (5) Durham Rule
(1) Wild Beast Test. It is ―Good and Evil test‖.
R. vs. called wild beast test Victim-Lord Onslow. In the 1724, British case of Rex vs.
Arnold because he do like wild Arnold, the judges ruled for the defendant to be acquitted by
, (Forest) beast (animal). reason of insanity because he did not know what he was doing
1724 Wild beast do not know and he was doing no more than a ―wild beast‖ would do.
Justice whether it is good or
Tracy bad.
1724 R. vs. Arnold, This test was evolved in R vs. Arnold. Here, the accused was
Justice Accused was acquitted. tried for wounding and attempting to kill Lord Onslow. By
Tracy Here visitation of God evidence, it was clear that the person was mentally deranged. J
means he thought that Tracy laid the test as follows, "If he was under the visitation
super natural power of God and could not distinguish between good and evil and
was going to kill him. did not know what he did, though he committed the greatest
offence, yet he could not be guilty of any offence against any
law whatsoever."
1760 Lord Ferrer Case Test of ability to distinguish between good and evil was
approved.
(2) INSANE DELUSION Victim- King George III
TEST
1800 R. vs. Hadfield's Case This test was evolved in Hadfield's Case in 1800, where
Delusio James Hadfield had Hadfield was charged with high treason and attempting the
n fired a horse gun at the assassination of King George III. He was acquitted on the
Means kinng George III when ground of insane delusion. Here, the counsel pleaded that
a false he entered into Royal insanity was to be determined by the fact of fixed insane
idea or Box in theatre during delusions with which the accused was suffering and which were
belief the play . He had missed the direct cause of his crime. He pointed out that there are
that is the targetAccused was people who are deprived of their understanding, either
caused acquitted on the permanently or temporarily, and suffer under delusions of
by ground of insanity. alarming description which overpowers the faculties of their
mental victims.
illness.
(3) Bowler test Test of Capacity to distinguish between right and wrong. It was
not clear and definite until the M‘ Naghten Case decided in
1843.
169
1812 Bowler Case

4 Mc Naghten Victim- Murder of a private secretary of the then prime
Rule(Daniel Mc minister of England
Naghten)
1843 R Vs. M‘Naghten In this case, Danial M'Naghten was tried for the murder of
Daniel Mc Naughten, Edmond Drummond private secretary of the Sir Robert Peel,
was under an insane then prime minister of England. He was acquitted on the
delusion that Sir Robert ground of insanity. This caused a lot of uproar and the case was
Peel had injured him sent to bench of fifteen judges who were called upon to lay
and mistaking Edmond down the law regarding criminal responsibility in case of
Drummond for Peel he lunacy. Some questions were posed to the judges which they
shot and killed him.He had to answer. These questions and answers are knows as
was acquitted. M'Naghten's Rules which form the basis of the modern law on
insanity.
Five Principles There were five principles were propounded by 15 Judges
(1) Knowledge that it is (1) Insane delusion was denied. He would be liable in all
contrary to law. It has circumstances if he knew, at the time of committing such
been incorporated in crime, that he was acting contrary to law.
84 of IPC.
(2) Presumption of sane (2) Every man must be presumed to be sane until contrary
Section 105 of Indian is proved. That is, to establish defence on the ground of
Evidence Act, 1872. insanity, it must be clearly proven that the person suffered from
Defence‘s lawyer has to a condition due to which he was not able to understand the
prove the existence of nature of the act or did not know what he was doing was wrong.
insanity at the time of It has been incorporated in IEA,1872.
the commission of an
offence.
(3) His knowledge as to (3) If the accused was conscious that the act was one that he
contrary act is sufficient. ought not to do and if that act was contrary to law, he was
It is immaterial whether punishable. It has not been incorporated in Indian Law.
he knew as to contrary
to law or not.
(4) Partial delusion is (4) If the accused suffers with partial delusion, he must be
equal to sane person. considered in the same situation as to the responsibility, as if
It has not been the facts with respect to which the delusion exists were real. For
incorporated in Indian example, if the accused, under delusion that a person is about to
Law. kill him and attacks and kills the person in self defence, he will
be exempted from punishment. But if the accused, under
delusion that a person has attacked his reputation, and kills the
person due to revenge, he will be punishable.
(5) Incompetency of (5) A medical witness who has not seen the accused previous to
Medical witness who the trial should not be asked his opinion whether on evidence he
has not seen earlier. thinks that the accused was insane
5 Test Durham Rule ( The Durham Rule, sometimes referred to as the ―product test,‖
Product Test or Cause- provides that the defendant is not ―criminally responsible if his
effect Test.) unlawful act is the product of a mental disease or defect.‖
170
Durham Product test means, the simple fact that a person has a
mental disease or defect is not enough to relieve him of
responsibility for a crime. There must be relationship between
the disease and the criminal act, such that the act would not
have been committed if the person had not been suffering from
the disease.
1 July Durham vs. United Monte Durham was charged for housebreaking. Durham has a
1954 States long history of imprisonment and hospitalization. In 1945, at
the age of 17, he was discharged from the Navy after a
psychiatric examination.
SUMMARY
(1) R. vs. Arnold WILD BEAST TEST or ―Good and Evil test‖.
1724 (Justice Tracy)
(2)1800 R. vs. Hadfield INSANE DELUSION TEST
(3)1812 Bowler Case Test of Capacity to distinguish between RIGHT AND
WRONG.
(4) R Vs. Daniel Mc FIVE PRINCIPLES were propounded. Section 84 of IPC is
1843 Naughten based on this case.
(5) Durham Rule (Product There must be relationship between the disease and the criminal
1 July Test)Cause-Effect act, such that the act would not have been committed if the
1954 Relationship Test. person had not been suffering from the disease.
4 INDIAN LAW
Section 84. Act of a ―Nothing is an offence which is done by a person who, at the
person of unsound mind. time of doing it , by reason of unsoundness of mind , is
incapable of knowing the nature of the act ,or that he is doing
what is either wrong or contrary to law.‖
25Jan. State of M.P. vs. Unsoundness of mind at the time of committing the offence.
1961 Ahmadullah
19 Dahyabhai vs. State of Meaning –Difference between medical insanity and legal
March Gujarat insanity.
1964 The brutality and The appellant was the husband of the deceased Kalavati. She
S.C. ferociousness of the act was married to the appellant in the year 1958. On the night of
by itself cannot lead to April 9, 1959, as usual, the appellant and his wife slept in their
the conclusion of bed-room and the doors leading to that room were bolted from
insanity. inside. At about 3 or 3.30 a.m. on the next day Kalavati cried
that she was being killed. The neighbors collected in front of
the said room and called upon the accused to open the door.
When the door was opened they found Kalavati dead with a
number of wounds on her body. The accused was sent up for
trial to the sessions on the charge of murder. He took the
defence of insanity.
1966 Bhakari vs. State of U.P. Unsoundness of mind at the time of committing the offence.
S.C.
1969 Jai Lal vs. Delhi Burden of Proof- From 1958 the, appellant was a Railway
S.C. Administration employee and often lost his temper and had altercations with
Every person is to be other clerks in the office. In October 1960 he was found to be
171
resumed in sane mind. suffering from a mental illness as he exhibited symptom of

The prosecution, in acute schizophrenia and showed disorder of thought, emotion
discharging its burden in and perception of external realities. He was treated for and was
the face of a plea of cured of this illness by July 1961 when he resumed his duties.
insanity , has merely to On the morning of November 25, he went to office as usual but
prove the basic facts as he was late in attendance, he was marked absent. He applied
and rely upon the in writing for one -day's casual leave and returned home. No
normal presumptions one noticed any symptoms of any mental disorder at that time.
aforesaid. It is then the Just after 1 o'clock he entered his neighbour's house and
accused to rebut the stabbed and killed girl 1 1/2 year old and later also stabbed and
presumptions. However injured two other persons with a knife. He was thereafter
the accused need not arrested and interrogated on the same day when he gave
prove the existence of normal and intelligent answers. He was punished.
insanity beyond
reasonable doubts.
1972 Sheralli Wali Unsoundness of mind at the time of committing the offence and
S.C. Mohammed vs. State of Burden of Proof
Guj.
DIFFERENCE Both are different from each other. Medical insanity is solely
BETWEEN dependent on medical grounds while legal insanity depends on
MEDICAL AND the factors required to be proved in a court of law to enable the
LEGAL INSANITY. accused to be acquitted of the charge. Only on the grounds of
For sec.84 only legal legal insanity person can take benefit of section 84. On the
insanity rather than grounds of medical insanity person cannot take benefit of
medical insanity. section 84 of IPC.
1976 Tabu Chetia vs. State Unsoundness of mind as contemplated by sec. 84 is legal
Gauha of Assam UPAPO insanity which means the state of mind in which an accused is
ti (new 2007,UP J2013 incapable of knowing the nature of his act or that he is
name incapable of knowing that he is doing what is either wrong or
Guwah contrary to law. In other words his cognitive faculties are such
ati) that he does not know what he has done or what will follow his
H.C. act.
1974 Oyami Ayatu vs. State Unsoundness of mind at the time of committing the offence.
S.C. of M.P.
1997 S. K. Nair vs. State of
Unsoundness of mind at the time of committing the offence.
S.C. Punjab S.K.Nair was charged for committing the murder of Naik B
Chaudhary and causing another person with ―Khukri‖
(Nepalese degger). At the time of the commission, the accused
did not completely lose his sense of understanding. The words
spoken by the accused and his acts clearly demonstrate that at
the time of the commission of murder he could explain his
intended action with logic. Hence the accused was not
incapable to understand implication of his acts and was
therefore held liable for committing the murder.
2002 Shrikant Anand Rao Shrikant was a police constable. In the morning there was
S.C. Bhosale vs. State of quarrel between husband and wife. While wife was washing
172
Maharashtra clothes in the bathroom, the appellant hit her with a grinding
stone on her head. He had family history suffering from
psychiatric illness. There was no any sufficient motive to kill
her wife. After killing his wife in day light he made no attempt
to hide himself. The Court held that from the circumstances of
the case an inference can reasonably be drawn that the accused
was under delusion at the relevant time. He was acquitted.
SECTIONS 85 & 106

SECTION 85 INVOLUNTARY INTOXICATION. Section 85 is very close to
section 84 because he is in such a position which has not been
caused by him. In this case he get absolute exception.
1551 Reninger vs. The early common law made no concession because of
Fogossa intoxication. The earliest case Reninger vs. Fogossa in England
wherein the court approved the death sentence for a homicide
committed in extreme intoxication
31 Dec Director Public Death caused during rape. Drunkenness is no defence in this case
1920 Prosecution vs. because it could not be established that at the time of committing
Beard the rape defendant so drunk incapable of forming intent to commit
By House of it. He was liable for committing the murder.
Lords, Beard was FACT-A girl of thirteen years while going to market passed
convicted for through a gate of a mill where the accused Beard was the
murder. watchman on duty. Beard attempted to commit the rape. She tried
to scream, therefore the accused placed his hand over her mouth
and pressed his thumb on her throat in a bid to prevent her from
screaming. In this endeavor he unintentionally killed her. He was
liable for committing the murder. Some principles were
propounded by House of Lords regarding intoxication.
SECTION 86 VOLUNTARY INTOXICATION. In case of voluntarily
intoxication, in case of knowledge, he would be treated as sane
person and he cannot take benefit of section 86. He can take
benefit of section 86 only in case of intention.
1956 Basudeo vs. State Basudeo was retired military officer. A boy aged about 15 or 16
S.C. of Pepsu had accompanied him to a marriage party. A Basudeo was very
drunk and intoxicated voluntary, asked the young boy to step aside
a little so that he may occupy a convenient seat. But when he did
not move, Basudeo whipped out a pistol and shot the boy in the
abdomen. He was convicted for murder.
SECTIONS Volenti non fit injuria
87, 88 & 89
SECTIONS BENEFIT OF A PERSON
88,89,92 & 93
SECTIONS Section 92 Explanation- Mere pecuniary benefit is not benefit
88,89,92 within the meaning of SECTIONS 88,89& 92
173
Section 87 (1) NO INTENTION of causing death or grievous hurt or NO

Mainly sports and KNOWLEDGE that by such act it is likely to cause death or
exercise grievous hurt.
(2) Harm is caused with intention (3) Person giving the consent is
above the age of 18 years (4) Such consent may be express or
implied
Section 88 Mainly medical treatment.
Section 89 For the benefit of the child or insane person.
Section 90 No Consent- Consent given (1) by a person under fear of injury (2)
under misconception of fact. (3) By a child under 12 years of
age. (4) by person of Unsound mind (5) by an intoxicated person.
Misconception of
fact.
UPHESC Poonai Fattemah A person consenting under a misconception of fact arising out
2015 vs. Emperor, of a misrepresentation of fact or fraud practiced on him can
1869 not be said to have consented.
(Snake Charmer Fact-The accused, who professed to be a snake charmer persuaded
Case) Section 90 the deceased to allow himself to be bitten by a poisonous snake,
including him to believe that he had power to protect him from
harm. It was held that consent was given under misconception of
fact. So accused was not allowed to take benefit of consent.
SECTION 92 Without consent but for his benefit. Circumstances exist in such a
way that it is not possible to take consent or he is not capable to
give consent. All illustrations of this section are always asked
Illustration (a) Z is thrown from his horse and is insensible. A, surgeon finds…
UPJ2015 Illustration (b) Z is carried off by a tiger. A fires on a tigre…
Illustration (c) A surgeon sees a child suffers an accident
Illustration (d) A is in a house which is on fire, with Z, a child. People below hold
out a blanket. A drops the child ……
Section 93 No communication made in good faith is an offence by reason of
any harm to the person to whom it is made if it is made for the
benefit of that person.
Section 94 Actus me invito factus non est mens actus ( An act done by me
against my will is not my act)
No benefit of sec. No benefit of section 94 in case of (1) Murder-Section 300 (2)
94- (1) Sec.300 Offences against the State punishable in death- Section
(2) section 121 121(Waging war). (3) When person had voluntarily involved-
Joining of gang.
Only instant death Reasonable apprehension must be instant death of the person who
had been compelled to do an act.
Defect of this (1) It protects only in case of instant death of the person who is
Section compelled to do an act. It is not available in case of threat of any
No scope for any other harm for example rape, grievous hurt etc.(2) It is not
relative. available in case of threat to any other relative for example , threat
to instant death of mother father son daughter wife etc.
Section 95 De Minimis non curat lex (Law takes no account of trifles). Rupan
174
De Minimis non Deol Bajaj vs. KPS Gill, 1996 S.C. Court held that section 95 is
curat lex not applied in case of offences against women. In this case the
Court did not applied section 95.
Bentham PRIVATE Bentham (Principle of Penal Laws), ―The right of defence is
DEFENCE absolutely necessary. The vigilance of Magistrates can never make
up for the vigilance of each individual on his own behalf. The fear
of the law can never restrain bad man as the fear of the sum total
of individual resistance. Take away this right and you become in
so doing the accomplice of all bad men
Sections 96-106 Sections 96 to 106 may be divided into three parts (1) Common
sections (2) Sections related to Body (3) Sections related to
property
(1)Common Sections 96,97,98,99, & 106
sections
(2)Sections Sections 100,101&102
related to Body
(3)Sections Sections 103,104 &105
related to
property
Compare (1) Section100-103, Circumstances in which death or any harm
may be caused (2) Section 101-104 Circumstances in which harm
may be caused & (3) Section 102-105 Commencement and
continuance of Right of Private defece.
Section 96 ―Nothing is an offence which is done in the exercise of the right
of private defence.‖
Section 97 Subject Firstly- His own body or body of any other person …against any
to Section 99 offence affecting the human body (Sections 299-377).
Secondly-(1) Any property- Movable or immovable. (2) of himself
or any other person (3) Against TRMC or attempt TRMC (
Trinmool Congress) T-Theft, R-Robbery, M-Mischief, C-Criminal
Trespass
1952 S.C. Amjad Khan vs. Section 100 First- Reasonable apprehension of death or
Golden State grievous hurt
Scales. These things Fact- A communal' riot broke out at Katni on the 5th of March,
He was cannot be weighed 1950, between some Sindhi refugees resident in the town and the
justified to in too fine a set of local Muslims. It was enough that the mob had actually broken
use right to scales or, as some into another part of the house and looted it, that the woman and
private learned Judges children of his family fled to the appellant for protection in terror
defence. have expressed it, of their lives and that the mob was actually beating at his own
in golden scales. doors with their lathis and that Muslim shops had already been
looted and Muslims killed in the adjoining locality. These things
cannot be weighed in too fine a set of scales or, as some learned
Judges have expressed it, in golden scales.
1992 S.C. Yeshwant Rao vs. Section 100 Thirdly and fourthly – Assault with intention of
State of M.P. committing rape or gratifying unnatural lust.
Section 100 Fact- Minor daughter of the accused had gone to the toilet on the
175
Thirdly -Rape rear side of the house. The deceased gripped her and had sexual
intercourse with her. The accused seeing his minor girl being raped
by the deceased hit the deceased with a spade. Daughter was minor
so her consent was immaterial and act of the deceased would
amount to committing rape under section 376 and hence the father
in defence of the body of his daughter was justified in exercising
his right of private defence.
3 Sep. 1959 Vishwa Nath vs. Section 100 Fifthly Kidnapping or abduction. The accused‘s sister
S.C. State of U.P. was staying with her father and brother (accused) because she did
He got the benefit not want to live with her husband.
of Section100, Husband, with three others, went to the quarter of wife‘s father and
Fifth. he went inside and came out dragging his reluctant wife behind
him. She caught hold of the door and husband started pulling her.
At this brother shouted to his father that sister‘s husband was
adamant and thereupon his father replied that he should be beaten.
The appellant took out a knife from his pocket and stabbed once.
The knife penetrated the heart of sister‘s husband and he died.
The Court held that appellant had the right of private defence of
person under the fifth clause of s. 100 and did not cause more
harm than was necessary and acquit him.
11 Dec. Deo Narain vs. It appears that there was some dispute with respect to the
1972 State of U.P. possession of certain plots of land in village Baruara, Police
S.C. The right of Station Dildarnagar, District Ghazipur. Deo Narain with his spear
It is private defence is had attacked.
preventive available for The threat must reasonably give rise to the present and imminent,
and not protection and not remote or distant, danger. This right rests on the general
punitive against- principle that where a crime is endeavored to be committed by
right. apprehended force, it is lawful to repel that force in self-defense.
.. coolly unlawful Where the lathi blows were aimed at a vulnerable part of the body
weigh, as if aggression and like the head, it was held by the S.C. that the victim was justified
in golden not for punishing, in using his spear to defend himself and as a result cause the death
scales. the aggressor for of the deceased.
Deo was the offence ―….In such moments of excitement of disturbed mental
acquitted. committed by him. Equilibrium it is somewhat difficult to expect parties facing grave
It is a preventive aggression to coolly weigh, as if in golden scales, and calmly
and not punitive determine with a composed mind as to what precise kind and
right. severity of blow would be legally sufficient for effectively meeting
the unlawful aggression.
1974 S.C. Kishan vs. State of
M.P.
1974 S.C. State of U.P. vs. Ram Swarup shot him (victim) dead at point blank range. The
Melon Ram Swarup Court held, ―The right of private defence is a right of defence,
Case. The right of not of retribution. It is available in face of imminent peril to those
RPD is not private defence is who act in good faith and in no case can the right be conceded to a
available a right of defence, person who stage-manages a situation wherein the right can be
to not of retribution. used as a shield to justify an act of aggression. If a person goes
176
aggressors. It is not available with a gun to kill another, the intended victim is entitled to act in
to stage self-defence and if be so acts there is no right in the former to kill
managers. him in order to prevent him from acting in self-defence. While
providing for the right of private defence, the Penal Code has
surely not devised a mechanism whereby an attack may be
provoked as a presence for killing.‖ Ram Swarup was convicted
under section 302.
1996 S.C. Mahabir
Choudhary vs.
State of Bihar
2004 S.C. James Martin vs.
State of Kerala
SECTION 99 (1) Acts of public servants other than causing death or grievous
hurt.(2) Time to have recourse to authorities(3) Right does not
extend to causing more harm than necessary
(1) Acts of public Kanwar Singh vs. Delhi Administration, AIR 1965 SC871. A
servants raiding party possessing authority u/s 418, Delhi Municipal
Corporation Act seized the stray cattle belonging to the accused.
The accused resisted the seizure of the cattle and inflicted injuries
on the raiding party. Since the raiding party were public servants
discharging their lawful duties, they were justified in law to seize
the cattle , no right of private defence was available to the
accused. He was convicted.
UGC 2008 (2) Time to have Gurdatta Mal vs. State of U.P. AIR1965SC257. There was a land
recourse to dispute between the accused and the deceased. There was
authorities prolonged civil litigation wherein the deceased had established his
right of title and physical possession of the property. He went
along with his men to harvest the crop with police protection. In
such a situation, it was held that the accused had ample time to
have recourse to authorities and had no right to assault the
deceased to claim possession of the properties. Hence they had no
right of private defence.
(3) Right does not State of U.P. vs. Ram Swarup Victim had started to run away even
extend to causing though he was shot dead.
more harm than Section 105 of IEA. The right of private defence constitutes a
necessary general exception to the offences defined in the Penal Code. The
burden which rests on the accused to prove the exception is not of
the same rigour as the burden of the prosecution to prove the
charge beyond a reasonable doubt. It is enough for accused to
show as in a civil case that the preponderance of probabilities is in
favour of his plea.
177
Rank )and UPSC as 1st rank holder for Puducherry . Special thanks to Rajendran Veerappan,
Venkateshwaran, Gayathri, Mary , Arathi , Trapti Aggarwal and other person who liked,
commented and shared my post .
PART- THREE
JOINT LIABILITY -Sections 34,35,37,38 and 149
SECTION 34 When a criminal act is done by several persons in furtherance of the
common intention of all, each of such persons is liable for that act in the
same manner as if it were done by him alone
Amendment- …in furtherance of the common intention of all,
1870
Milton ―They also serve who only stand and wait‖. Later on it was used in
law by Lord Sumner in case of Barendra Kumar Ghosh vs. king
Emperor, 23 Oct.1924.
Lord Sumner ―They also serve who only stand and wait‖. Barendra Kumar Ghosh
vs. king Emperor, 23 Oct.1924.P.C. Post Office case.
Sir Madhavan Mahaboob Shah vs. Emperor, 1944, Sir Madhavan Nair, ―…Care
Nair must be taken not to confuse same or similar intention with common
intention, the partition which divides ‗their bonds‘ is often very thin ;
nevertheless, the distinction is real and substantial , and if overlooked ,
will result in miscarriage of justice..‖
23 Barendra Kumar The Sub-Postmaster at Sankaritolla Post Office was counting money at
Oct.19 Ghosh vs. king his table in the back room, when several men appeared at the door
24. Emperor, which leads into the room from a courtyard, and, when just inside the
Sankaritolla Post door, called on him to give up the money. Almost immediately
Office Case. afterwards they fired pistols at him. He was hit in two places, in one
Barendra Kumar hand and near the armpit, and died almost at once. Without taking any
Ghosh was a money the assailants fled, separating as they ran. Appellant was
freedom fighter. caught. He was the man outside the room. Lord Sumner, ―They also
He was convicted serve who only stand and wait‖.
for murder u/s302 A criminal act means unity of criminal behaviour which results in
r/w section 34. something, for which an individual would be punishable, if it were all
done by himself alone, that is, in a criminal offence.
1944 Mahaboob Shah Sir Madhavan Nair, ―…Care must be taken not to confuse same or
vs. Emperor similar intention with common intention, the partition which divides
(Indus River ‗their bonds‘ is often very thin ; nevertheless, the distinction is real and
178
Case ) substantial , and if overlooked , will result in miscarriage of justice..‖

3 Dec. Pandurang vs. The common intention should be prior or antecedent to the
1954 State of occurrence.
Hyderabad Supreme Court observed, ―Now in the case of section 34 we think it is
well established that a common intention presupposes prior concert. It
requires a pre-arranged plan because before a man can be vicariously
convicted for the criminal act of another, the act must have been done in
furtherance of the common intention of them all. Accordingly there
must have been a prior meeting of minds. Several persons can
simultaneously attack a man and each can have the same intention,
namely the intention to kill, and each can individually inflict a separate
fatal blow and yet none would have the common intention required by
the section because there was no prior meeting of minds to form a pre-
arranged plan. In a case like that, each would be individually liable for
whatever injury he caused but none could be vicariously convicted for
the act of any of the others; and if the prosecution cannot prove that his
separate blow was a fatal one he cannot be convicted of the murder
however clearly an intention to kill could be proved in his case..‖
3 Feb. Rishi Deo Pandey Common intention may develop on the spot.
1955 vs. State of U.P.
1965 Gurdatta Mal vs. This principle that the provisions only lays down the rule or principle of
UGC2 State of U.P. joint liability and does not create a separate offence was considered by
008 Section 34does the Supreme Court in this case. Sections 34 and 96 of IPC were
not create distinct involved.
offence, it only Supreme Court observed, ―It is well settled that Section 34 of the
lays down the Indian Penal Code does not create a distinct offence: it only lays down
principle of joint the principle of joint criminal liability. The necessary conditions for the
criminal liability. application of Section 34 of the Code are common intention to commit
an offence and participation by all the accused in doing act or acts in
furtherance of that common intention. If these two ingredients are
established, all the accused would be liable for the said offence; that is
to say, if two or more persons had common intention to commit murder
and they had participated in the acts done by them in furtherance of that
common intention, all of them would be guilty of murder.‖
Physical Presence and Active Participation
1955 Shree Kantia vs. Physical Presence and Active Participation of every person is
S.C. State of Bombay necessary.
1960 J.M. Desai vs. Shree case was modified. In case of offences against property, presence
S.C. State of Bombay of every person is not necessary.
Difference between 34 and 149
25 Nanak Chand S.C. observed, ―There is a clear distinction between the provisions of
Janua vs. The State Of sections 34 and 149 of the Indian Penal Code and the two sections are
ry, Punjab not to be confused. The principal element in section 34 of the Indian
1955 There is a clear Penal Code is the common intention to commit a crime. In furtherance
distinction of the common intention several acts may be done by several persons
between the resulting in the commission of that crime. In such a situation section
179
provisions of 34 provides that each one of them would be liable for that crime in the
sections 34 same manner as if all the acts resulting in that crime had been done by
and 149 of the him alone.' There is no question of common intention in section 149 of
Indian Penal the Indian Penal Code. An offence may be committed by a member of
Code and the two an unlawful assembly and the other members will be liable for that
sections are not offence although there was no common intention between that person
to be confused. and other members of the unlawful assembly to commit that offence
provided the conditions laid down in the section are fulfilled. Thus if the
offence committed by that person is in prosecution of the common
object of the unlawful assembly or such as the members of that
assembly knew to be likely to be committed in prosecution of the
common object, every member of the unlawful assembly would be
guilty of that offence, although there may have been no common
intention and no participation by the other members in the actual
commission of that offence.‖
PART- FOUR
SECTIONS 229 AND 300 OF IPC
HOMICIDE-(1st Stage) Homicide means killing of human being. All homicide is not
punishable, for example, any homicide which comes under chapter IV (Sections 76-106) of IPC.
Here, there is a relation between cause and death but guilty mind is absent. Actus non facit reum,
nisi mens sit rea. It means, the act itself does not make a man guilty, unless his intention were so.
When a homicide is done with guilty mind, that homicide would be either culpable homicide or
murder. So it is said that all homicide is not culpable homicide, but all culpable homicide is
homicide.
CULPABLE HOMICIDE – (2nd Stage) When homicide is done with guilty intention or
knowledge and degree of intention or knowledge is higher, then it is culpable homicide.
MURDER-3rd Stage When homicide is done with guilty intention or knowledge and degree of
intention or knowledge is highest, then it is murder.
Difference between CH and Murder depends upon degree intention and knowledge. So now I am
going to search how in case of murder there is more degree of intention and knowledge than
degree of CH.
First of all we have to understood C H (Section 299) and Murder (300).
Section 299 ―Whoever causes death (Section 46) by doing an act (Sections 32 &33) with the
intention (Desire and foresight of consequences) of causing death, or with the intention of
causing such bodily injury as is likely to cause death (there is no intention to cause death, only
intention is to cause bodily injury) or with the knowledge (foresight of consequences) that he is
likely by such act to cause death, commits the offence of culpable homicide.‖
Two conditions must be fulfilled to apply section 299-
(1) THERE MUST BE CAUSE AND EFFECT RELATIONSHIP.
180
(i) Moti Singh vs State of UP, AIR 1964SC900. (Primary cause and the death should not be too
remote. You have to prove that by act of accused, death of victim has occurred. In this case
deceased was discharged from the hospital and after sometimes he died. Prosecutor could not
prove what the reason of cause of death of victim was whether it was injury caused by accused
or negligence in taking medicine after discharge of hospital.
(II) Joginder Singh vs State of Punjab AIR1979SC 1876
Accused were about 15 to 20 feet from victim when he jumped into well. There was no cause &
effect relationship. Here cause and effect means, there must be death of victim by act of accused.
If this condition is not fulfilled, no further question regarding intention or knowledge.
(2) THERE MUST BE GUILTY MIND. Act must be done with guilty mind. There are three
degrees of mens rea- (i) Intention to cause death, or (ii) Intention to cause such bodily injury as
is likely to cause to cause to cause death, or (iii) With the knowledge the he is likely by such act
to cause death. Here ‗likely‘ word denotes probability. By aiding some special words, this
probability would be converted into certainty. Then culpable homicide would be converted into
murder. For example-
Homicide CH Murder CH
Chapter 299 300 5Exception
IV(Sections76-106) s of 300
1 INTENTION TO CAUSE INTENTION TO CAUSE DEATH
DEATH RATHER THAN RATHER THAN BODILY
BODILY INJURY INJURY
INTENTION TO (a)Intention to cause death (J. (Firstly) Intention to cause death.
CAUSE DEATH Melvil , On this point , there is Justice Melvil-R vs. Govinda,1876
no difference-. It means ―(a) and (1) show that where there is
homicide is committed with an intention to kill, the offence is
intention to cause death, that always murder.‖
homicide is always murder.
INTENTION TO CAUSE INTENTION TO CAUSE BODILY
BODILY INJURY INJURY
2 (b) Secondly & Thirdly
INTENTION TO (b)Intention to cause bodily (Secondly)Intention to cause bodily
CAUSE BODILY injury + by such bodily injury, injury + Offender knows that by
INJURY RATHER it is likely to cause to cause such bodily injury, it is likely to
THAN DEATH (Intention +Likely). cause to cause.( Intention +
Here knowledge is missing. knowledge+ likely). Here knowledge
of offender has enhanced probability
of death.
(b) Intention to cause bodily Thirdly- With the intention of
injury + by such bodily injury, causing bodily injury to any person,
it is likely to cause to cause. and the bodily injury intended to be
(Intention+Likely). inflicted is sufficient in the ordinary
(the distinction lies between a course of nature to cause death; By
bodily injury likely to cause using the words sufficient in the
181
death and a bodily injury

ordinary course of nature, enhanced
sufficient in the ordinary
the gravity of probability. State of
course of nature to cause
A.P. vs.R.Punnayya.J Ranjit Singh
death.) Sarkaria.
In Virsa Singh v. The State of Punjab,
Justice Vivian Bose .
3 Knowledge (c) Knowledge(Fourthly)
NO INTENTION , Knowledge + Likely to cause Knowledge+ Imminently
ONLY death Dangerous + all probability to
KNOWLEDGE cause death + without excuse. For
example-Terrorist attack
Without any excuse
(1) Emperor vs. Dhirajia,
(2) Gyarsibai W/O Jagannath vs. The
State
LEADING
CASES
1 18 July R. Vs. Govinda, Bombay H.C. Melvil , J. Difference between C.H. and Murder.
1876
2 1940 (1) Emperor vs. All. H.C. She jumped into the well with excuse. Excuse was that
Dhirajia, she did due to fear of her husband who were running behind her.
The Court held that every sane person shall be presumed to have
knowledge about his/ her own conduct. So she was liable only for
CH rather than murder.
3 1912 Emporer vs. Intention to cause death of particular person is not necessary. It
Mad. H.C. M.S.Murthy (Halva becomes very clear after cumulative readings of Sections 299 to
Case) 301 and illustrations of these sections. He was liable for murder.
4 1919 Palani Goundan vs. Husband struck a violent blow on the head with ploughshare. She
Mad. H.C. Emperor became unconscious. He thought that she had died. So for
concealment of evidence, he hanged her. She died due to hanging.
He was not liable either for C.H. or Murder. He was liable only for
causing of grievous hurt and concealing evidence.
5 23 Gyarsibai W/O M.P.H.C. She jumped into the well with her three sons into well
Oct.1952 Jagannath vs. The only for satisfaction of her ego which had aroused after dispute of
State sister in law. She was liable for murder of her three children. She
was liable for murder.
6 11 Virsa Singh vs Supreme Court, Section 300 Thirdly.
March,1958 State of Punjab
7 15Sep,1976 State of A.P. vs. (1) In the scheme of the Penal Code, 'culpable homicide' is genus
(After R.Punnayya. and 'murder' its specie. All 'murder' is 'culpable homicide' but not
100years of J. Ranjit Singh vice versa.
Govinda Sarkaria (2). For the purpose of fixing punishment, proportionate to the
case) gravity of this generic offence, the Code practically recognizes
Supreme three degrees of culpable homicide. The first is, what may be
182
Court. called, culpable homicide of the first degree. This is the gravest
form of culpable homicide which is defined in s.300 as 'murder'.
The second may be termed as 'culpable homicide of the second
degree'. This is punishable under the 1st part of s. 304. Then,
there is 'culpable homicide of the third degree.' This is the lowest
type of culpable homicide and the punishment provided for it is,
also, the lowest among the punishments provided for the three
grades. Culpable homicide of this degree is punishable under the
second Part of s. 304.
(3) The safest way of approach to the interpretation and
application of these provisions seems to be to keep in focus the
key words used in the various clauses of ss. 299 and 300.
8 1962 K.M.Nanavati vs. He was liable for murder under section 302. He could not get
S.C. State of benefit of section 300 Exception 1, (Grave and sudden
Maharashtra provocation). In this case fact was grave (keeping of sexual
section 300 intercourse without consent of husband is grave) but death caused
Exception 1 by Nanavati was not sudden. Grave and sudden must be decided
according to fact and circumstances of the case.
9 2003 Ghapoo Yadav vs. Section 300 Exception 4. He was convicted under section 304,
S.C. State of M.P. Part 1.
DIFFERENCE BET SEC.299 & 300 REGARDING SENTENCES

Murder C H( Intention) C H ( Knowledge)
Section 302 Section 304 ( Part 1) Section 304 ( Part 2)
Death or LI and fine LI or Ten years imprisonment and fine Ten years of either description or fine
or both. No L I.
Section 354 Assault or Criminal Force to woman with intent to outrage her
modesty
28 April, State of Punjab vs. Justice Bachawat said, ―The Code does not define "modesty".
1966 Major Singh What then is a woman's modesty? I think that the essence of a
Justice Bachawat ―The woman's modesty is her sex. The modesty of an adult female is
essence of a woman's writ large on her body. Young or old, intelligent or imbecile,
modesty is her sex.‖ awake or sleeping, the woman possesses a modesty capable of
Accused was awarded being outraged. Whoever uses criminal force to her with intent to
rigorous imprisonment outrage her modesty commits an offence punishable under s. 354.
for a term of two years The culpable intention of the accused is the crux of the matter. The
and a fine of Rs. 1,000/-, reaction of the woman is very relevant, but its absence is not
and in default, rigorous always decisive, as, for example, when the accused with a corrupt
imprisonment for a mind stealthily touches the flesh of a sleeping woman. She may be
period of six months. an idiot, she may be under the spell of anesthesia, she may be
Out of the fine, if sleeping, she may be unable to appreciate the significance of the
realised, Rs. 500/- shall act; nevertheless, the offender is punishable under the section. A
183
be paid as compensationfemale of tender age stands on a somewhat different footing. Her

to the child. He was body is immature, and her sexual powers are dormant. In this case,
convicted under sectionthe victim is a baby seven and half months old. She has not yet
354 developed a sense of shame and has no awareness of sex.
Nevertheless, from her very birth she possesses the modesty which
is the attribute of her sex. But cases must be rare indeed where the
offender can be shown to have acted with the intention
of outraging her modesty. Rarely does a normal man use criminal
force to an infant girl for satisfying his lust. I regret to say that we
have before us one of such rare cases. Let us reconstruct the scene.
The time is 9-30 p.m. The respondent walks into the room where
the baby is sleeping and switches off the light. He strips himself
naked below the waist and kneels over her. In this indecent posture
he gives vent to his unnatural lust, and in the process ruptures the
hymen and causes a tear 3/4" long inside her vagina. He flees when
the mother enters the room and puts on the light. I think he
outraged and intended to outrage whatever modesty the little
victim was possessed of, and he is punishable for the offence
under s. 354.
1996 S.C. Rupan Deol Bajaj vs. Rupan was an IAS. KPS Gill was DGP of Punjab. KPS Gill
KPS Gill slapped Mrs Rupan on her posterior. This was done in the full
presence of the other ladies and guests in party. Offences against
women do not come under section 95.KPS was punished under
section 354 of IPC.
2013 Amendment (1) Section 354- Punishment was enhanced (2) S. 354ASexual
Harassment and Punishment for Sexual Harassment (3)– S. 354B
Assault or use of criminal force to women with intent to disrobe
her,(4) – S. 354C : Voyeurism, (5) – S. 354D : Stalking.
KIDNAPPING 359, 360, 361, 363A-Ins. 1959, 364, 364 A-Ins.1993,
365,366,366A &366B -Ins. 1923, 367, 368 & 369.
Sec.359 Kind of Kidnapping Kidnapping is of two kinds: Kidnapping from India (360),
Kidnapping from lawful guardianship (361)
360 Kidnapping from India
361 Kidnapping from
lawful guardianship
363 Punishment for
kidnapping
KIDNAPPING (1) TEA-(T-Take, E-entices, A-any minor) (2) Minor or person of
TEA-(T-Take, E- unsound mind- Both cannot give consent, so consent of these
entices, A-any minor) persons are immaterial. Minor- Male under age of 16 years,
Female under age of 18 years, for UM, there is no age limit (3)
Out of the keeping of lawful guardian ( 4) Without consent of
lawful guardian
9 Sep. 1964 S. Varadrajan vs. State S.C. held, ―There is a distinction between ―taking‖ and
S.C. of Madras. allowing a minor to accompany a person. The two expressions
No offence S. Varadrajan was are not synonymous though we would like to guard ourselves from
184
under acquitted. laying down that in no conceivable circumstance can the two be
section 363 ―There is a distinction regarded as meaning the same thing for the purposes of s. 361 of
between ―taking‖ and the Indian Penal Code. We would limit ourselves to a case like the
allowing a minor to present where the minor alleged to have been taken by the accused
accompany a person.‖ person left her father‘s protection knowing and having capacity to
In this case, there was no know the full import of what she was doing voluntarily joins the
taking. accused person. In such a case we do not think that the accused can
Savitri had fallen in love be said to have taken her away from the keeping of her lawful
of neighboring person S. guardian.‖
Varadrajan.
27 October, State of Haryana v. Raja "The object of this section seems as much to protect the minor
1972 Ram children from being seduced for improper purposes as to protect
the rights and privileges of guardians having the lawful charge or
Keeping =CPC….M custody of their minor wards. The use of the word "keeping" in
CPC=C—charge, P- the context connotes the idea of charge, protection, maintenance
protection, C- control and control. On plain reading of this section the consent of the
..M- Maintenance. minor who is taken or enticed is wholly immaterial; it is only the
Force or fraud is not guardian's consent which takes the case out of its purview. It is not
necessary. Persuasion is necessary that the taking or enticing must be shown to have been
sufficient. by means of force or fraud. Persuasion by the accused person
which creates willingness on the part of the minor to be taken out
of the keeping of the lawful guardian would: be sufficient to attract
the section‖.
2 May Thakorilal D Vadgama Meaning of taking- The word "takes" does not necessarily
1973 vs. State of Gujarat connote taking by force and it is not confined only to use of force,
S.C. Meaning of taking and actual or constructive. This word merely means, ―to cause to go‖,
Mohini's enticing. ―to escorts‖ or ―to get into possession‖. No doubt it does mean
birth-day, The appellant, an physical taking, but not necessarily by use of force or fraud.
the industrialist, had a
appellant factory at Bunder Road Meaning of enticing- The word ―entice‖ seems to involve the idea
presented for manufacturing oil of inducement or allurement, by giving rise to hope or desire in
her with a engines and adjoining the other. This can take many forms, difficult to visualise and
parker pen. the factory was his describe exhaustively; some of them may be quite subtle,
T.D. was residential bungalow. depending for their success on the mental state of the person at the
liable for During the bombardment time when the inducement is intended to, operate. This may work
kidnapping. of Jainnagar by Pakistan immediately or it may create continuous and gradual but
(Parker Pen in 1965, Mohini's parents imperceptible impression culminating after some time, in achieving
Case) came to reside its ultimate purposes of successful inducement.
temporarily at Dhrol near
Jamnagar. The appellant The two words "takes" and "entices', as 'used in s. 361, I.P.C.
came to be introduced to are, in our opinion, intended to be read together so that each
that family and on takes to some extent its colour ,and content from the other.
December 18, 1965,
which was Mohini's
birth-day, the appellant
presented her with a
185
parker pen.
Rape
15th Tukaram vs. State of Mathura was a girl who was raped in Police Station by two
September Maharashtra policemen. Accused was acquitted by S.C. on the the ground that
1978 (Mathura Rape case) there was implied consent. Implied consent was drawn on the basis
that there was no injury on the body of victim. This judgment was
vehemently criticized by public and jurist. Mathura Case which
led to the 1983 Criminal Law Amendment Act.
1983 The Criminal Law The 1983 Act discussed what constituted custodial rape, provided
Reasons (Amendment) Act, for enhanced punishments under S. 376(2), and brought in
Mathura 1983. presumption of absence of consent in cases booked under section
Case (1978) Tuka Ram & Anr. Vs. 376(2) IPC, 1860. This was done by bringing in an amendment in
State of Maharashtra the Indian Evidence Act; section 114(A) IEA.
(15th September 1978)
known as Mathura Case
which led to the 1983
Criminal Law
Amendment Act.
IPC 228A & CHAPTER XXI A-498A were inserted. Definition and
punishment of rape were substituted- Sections 375 and 376.
Indian E Act. 113 A- Presumption as to abetment of suicide by a married
woman, and 114A- – Presumption as to absence of consent, were
inserted.
Cr.PC. S. 327(2) In case of rape trial, in camera proceedings to be
conducted; S. 327(3) it shall not be lawful for any person to print
or publish any matter regarding proceeding.
2013 Deepak Gulati vs. Intercourse under promise to marry constitutes rape only if from
State of Haryana initial stage accused had no intention to keep promise. An accused
can be convicted for rape only iif the court reaches a conclusion
that the intention of the accused was mala fide and that he had
clandestine motives.
11Oct.2017. Independent Thought Sexual relations with wife, when wife is below the age of 18 years
vs. Union of India & is rape...Section 375 Exception 2 is arbitrary to Articles 14, 15&21
Anr. of the Constitution of India. Court may take cognizance under
section 198(6) of Cr.P.C. Now in all cases, sexual intercourse with
a women including wife, if she is below the age of 18 years, is
rape..
Year Age of Age mentioned in Minimum age of marriage

Consent under the exception to under the Child Marriage
section 375, 5th sec.375 Restraint Act, 1929
Clause IPC
1860 10 10 -
186
1891(After amendment of 12 12 -
IPC)
1925(After amendment of 14 13 -
IPC)
1929( After the passing of 14 13 14
Child Marriage Restraint
Act, 1929)
1940 (After the passing of 16 15 15
Child Marriage Restraint
Act, 1929 and IPC)
1978 16 15 18
2017 18 15 PCMA, 2006. 18
(F) 21(M)
SECTION 377
11Dec. Suresh Kumar Section 377 is constitutional. Legislative bodies are free either to
2013 Koushal &Anr. amend or delete section 377.
vs. Naz
Foundation &
Others
Offences against
Property
Theft
11 K N Mehra vs. Theft of Aircraft. He was liable for theft. Accused took off aircraft in
February, State of unauthorized time and in area… flew with it to Pakistan with a
1957 S.C. Rajasthan dishonest intention.
A temporary retention of property by a person wrongfully gaining
thereby or a temporary keeping out of property from the person legally
entitled thereto, may amount to theft under S. 378 of the-Indian Penal
Code, and in this respect the offence differs from "larceny" in English
Law which contemplates permanent gain or less.
22Oct Pyre Lal Accused took the file from office to home without authorized
1962 Bhargava vs. permission and put the file in office in next day. He was liable for
State of theft.
Rajasthan
That a person- will act dishonestly if he temporarily dispossesses another
of his property is made clear by illustrations (b) and (1) of s.378 of the
Indian Penal Code. They are:
(b) A puts a bait for dogs in his pocket, and thus induces z's dog to follow
it. Here, if A's intention be dishonestly to take the dog out of Z's
possession without Z's consent, A has committed theft as soon as Z's dog
has begun to follow A.
187
(l). A takes an article belonging to Z out of Z's possession without Z's

consent, with the intention of keeping it until he obtains money from Z as
a reward for its restoration. Here A takes dishonestly; A has therefore
committed theft.
It will be seen from the said illustrations that a temporary removal of a

dog which might ultimately be returned to the owner or the temporary
taking of an article with a view to return it after receiving some reward
constitutes theft, indicating thereby that temporary deprivation of another
person of his property causes wrongful loss to him. We, therefore, hold
that the facts found in this case clearly bring them within the four comers
of s. 378 of the Indian Penal Code.

Commission (22nd Rank )and UPSC as 1st rank holder . Special thanks to Rajendran
Veerappan , Venkateshwaran , Gayathri, Mary , Arathi , Trapti Aggarwal and other
person who liked, commented and shared my post .
KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, PUDUCHERRY.
INDIAN CONTRACT ACT, 1872
EXAMS LEADING CASES IMPORTANT POINTS
UGC J 2006 Hadley vs. Baxandale(23
Justice Alderson. Remoteness of Damages, Special Damages.
Feb 1854) Section 73,
UGC J 2006 Mc Gregor vs. Mc
The wife withdrew her complaints as the husband entered into
Gregor(1888) an agreement with her on the condition that if she withdrew
her complaints and refrained from pledging his credit, he will
pay her an allowance. This Contract is binding although it is
related to family matters, here parties had intention to create
legal intention.
UGC D 2006 Peters vs. Fleming(1840) The Court took judicial notice that it was prima facie not
Watch and a unreasonable an undergraduate at a college should have a
watch chain watch and a watch chain. Fact-Where undergraduate in the
Eleven fancy Cambridge University, who was supplied with number of
waistcoats.Se dresses, including eleven fancy waistcoats. The Court held
ction 68 that price was irrecoverable.
UGC D 2006 Nash vs. Inmam (1908) Minor‘s Liability. There are two theories relating to the
Section 68 Fletcher Moulton LJ liability of a minor‘s estate for necessaries .First-Liability
without consent of minor (Nash vs. Inmam and Section 68 of
The Indian Contract Act) (2) Liability with consent of minor.
Fletcher Moulton LJ, ―An infant, like a lunatic, is incapable of
making a contract of purchase in the strict sense of the words;
but if a man satisfies the needs of the infant or lunatic by
188
supplying to him necessaries, the law will imply an obligation

to repay him for the services so rendered, and will enforce
that obligation against the estate of the infant or lunatic…The
obligation arises re and not consensus‖
UGC J 2007 Entores Ltd. Vs. Miles The claimant sent a telex message from England offering to
Direct Far Wast Corporation purchase 100 tons of Cathodes from the defendants in
Communicati (1955) Holland. The defendant sent back a telex from Holland to the
on Denning LJ ―Applying the London office accepting that offer. The question for the court
River, principles which I have was at what point the contract came into existence. If the
Courtyard. stated, I think that the acceptance was effective from the time the telex was sent the
Aircraft contract in this case was contract was made in Holland and Dutch law would apply. If
flying. made in London where the the acceptance took place when the telex was received in
Contract by acceptance was received. It London then the contract would be governed by English law.
telephone. was, therefore, a proper Held: To amount to an effective acceptance the acceptance
Line goes case for service out of the needed to be communicated to the offeror. Therefore the
dead. jurisdiction.‖ contract was made in England.
Bhagwandas Denning LJ. ―Where two people make a contract by word of
Goverdhandas Kedia vs. mouth in the presence of one another. Suppose, for instance,
M/s. Girdharilal that I shout an offer to a man across a river or a courtyard
Parshottamdas And Co. & but I do not hear his reply because it is drowned by an
Ors. (30 August 1965) is aircraft flying overhead. There is no contract at that moment.
based on Entores Ltd. Vs. If he wishes to make a contract, he must wait till the aircraft is
Miles Far Wast gone and then shout back his acceptance so that I can hear
Corporation. what he says… Now take a case where two people make a
contract by telephone. Suppose, for instance, that I make an
offer to a man by telephone and, in the middle of his reply,
the line goes ―dead‖ so that I do not hear his words of
acceptance. There is no contract at that moment. The other
man may not know the precise moment when the line failed.
But he will know that the telephone conversation was
abruptly broken off: because people usually say something to
signify the end of the conversation. If he wishes to make a
contract, he must therefore get through again so as to make
sure that I heard. Suppose next, that the line does not go dead,
but it is nevertheless so indistinct that I do not catch what he
says and I ask him to repeat it. He then repeats it and I hear
his acceptance. The contract is made, not on the first time
when I do not hear, but only the second time when I do hear.
If he does not repeat it, there is no contract. The contract is
only complete when I have his answer accepting the offer.
Acceptance Bhagwandas Bhagwandas Goverdhandas Kedia vs. M/s. Girdharilal
by telephone Goverdhandas Kedia vs. Parshottamdas And Co. & Ors. is based on Entores Ltd. Vs.
or Telex (1) M/s. Girdharilal Miles Far Wast Corporation.
Shah, Parshottamdas And Co.
J.C.(2)Wanch & Ors. (30 August 1965)
oo,
189
K.N.(3)Hiday
atullah, M.
General Offer Carlil vs. Carbolic Smoke Generally offer to the world at large does not make it
Ball Company(1893) necessary on the part of the acceptor to communicate his
acceptance.
UGC D2007 Currie vs. Misa Justice Lush, ― A valuable consideration, in the sense of the
Consideration (1875) Definition of law, may consist either in some right, interest, profit, or
Consideration in English benefit accruing to the one party, or some forbearance,
Law. Justice Lush detriment, loss or responsibility, given, suffered, or
undertaken by the other..."
UGC D2007 Kedar Nath vs. Gauri Charitable subscription Rs.100 for construction of Town Hall
Consideration Mohammad at Howrah. Calcutta High Court held that engaging a
(Charitible (1887) contractor and starting the construction on the faith of the
purpose) promise was sufficient consideration to enforce the promise
and, therefore, the defendant was bound to pay the amount
promised by him.
UGC D2007 Abdul Aziz vs. Masum Ali All.H.C. Charitable subscription Rs.500 for Mosque repair.
Consideration (1914) Repairs not started as yet. Held not liable. It is different from
(Charitible Kedar Nath case. Here work had not been started
purpose)
Consideration Shadwel vs. Consideration in this case was a benefit to the uncle, as
(Performance Shadwel(1860) marriage of a near relative could be of interest to him and, and
of an existing also detriment to A, as he might have incurred pecuniary
duties to a liabilities on the faith of the promise.
third party.)
UGC D2007 Gopal Co. Ltd. Vs. Principle laid down in Shadwel vs. Shadwel was followed in
Consideration Hazarilal Co. Ltd.(1963) this case. It was held that the defendant‘s guarantee to the Mll
(Performance to procure the permormance of the contract by the plaintiff
of an existing was good consideration as they were interested in getting the
duties to a contract performed , and further that the mutual promise ,
third party.) i.e.,the promise by the defendant to pay the sum and promise
by the plaintiff to lift the bales were enforceable.
UGC D2008 Mohiribibi vs. Capicity to contract
DharmodasGhose
UGC D2008 Hadley vs. Baxandale(23 Remoteness of Damages, Special Damages. Justice Alderson
Feb 1854)
UGC D2008 Satyabrat Ghose vs. (1954)Justice B.K.Mukherjea. Doctrine of Frustration
Mugneeram
UGC D2008 Lalman Shukla vs. Gauri General Offer
Datt
UGC D2014 Jyotindra Bhattacharjee vs. Whether Late Bora was mentally unsound at the time of
Mrs. Sona Balon Bora execution of the sale deed. It is settled law that onus of
(5April 2004) proving of unsoundness of mind of a person always rests
upon him who alleges such state of mind of person.
UGC D2014 Hadley vs. Baxendale Damages arising in the usual course of things
(1854)
190
UGC D2014 Jamal vs. Moola Dawoood Measure of damages , Duty to mitigate, Section 73,
(1916) Explanation
UGC D2014 Ghaziabad Development Compensation for mental anguish was denied.
Authority vs. UOI (2000)
UGC D2014 M/s Ganga Maruthi Vs. Compentation for breach of contract where penalty is
Nagaraj (1998) stipulated for.
UGC J 2015 Food Corporation of India Offer and acceptance for employment in Food Corporation of
Vs. Ram Keshav Yadav India.
(27 Feb.2007)
UGCJ 2015 Kedar Nath bhattacharji vs. An act done at the promisor‘s desire furnishes a good
Consideration Gori Mohammad (1886). consideration for his promise even though it is of no personal
―…at the desire of the significance or benefit to him.
promisor..‖
UGC J 2015 K. Balakrishnan vs. Capacity of minor to enter into contract.(Acceptance of gift
K.Kamalam (18 Dec.2003) by minor)
UGC J 2015 Satyabrat Ghose vs. Impossibility of performance.
Mugneeram Banngar &
Co.
UGC D 2015 Paradine vs. Jane (1647). In this case it was pointed out that subsequent happening
Court did not apply should not affect a contract already made. Court held that in
doctrine of frustration. any circumstance even the land surrounded or gained by the
sea or made barren by wildfire , yet the lessor will have his
whole rent. In this case defendant was dispossessed by alien
enemy. Even he was held liable for paying of rent.
UGC D 2015 Taylor vs. Caldwell(1863) Justice Blackburn said that law laid down in Paradine vs. Jane
First time ‗Music Hall Case‘ case would be applied only when the Contract was positive
Justice and absolute. In this case ‗music hall‘ was destroyed by fire
Blackburn without the fault of either party. Justice Blackburn held,
applied ―Contract was not absolute, as its performance depends upon
Doctrine of the continued existence of the hall. It was therefore subject to
Frustration. implied condition that the parties shall be executed in case,
before breach, performance becomes impossible from the
perishing of thing without default of the contractor.‖
UGC D 2015 Robinson vs. Piono Player Case
Davison(1871)
UGC D 2015 Krell vs.Henry(1903) Coronation Case. Doctrine of frustration is not confined to
physical impossibilities. It extends also to cases where the
performance of the contract is physically possible, but the
object the parties had in mind has failed to materialize.
UGC D 2015 Cricklewood Property and The Court Held, ―Even if the doctrine of frustration could
Investment Trust Ltd. apply to a lease, the circumstances did not justify such
Vs.Leighton‘s Investment application; the lease had not been determined by frustration,
Trust Ltd.1945 and the liability for rent continued. The regulations were
temporary, and the lease was therefore not frustrated.‖
UGC D 2015 Satyabrat Ghose vs. Justice B.K.Mukherjea. Doctrine of Frustration
Mugneeram
191
(1954)
UGC J 2016 Sonia Bhatia vs. State of ―Consideration means a reasonable , equivalent or other
Uttar Pradesh (17 valuable benefits passed on by the transfer to the transferee.
March1981) Similarly , when the word „consideration‟ was qualified by
the word „adequate‟ it makes the consideration stronger so as
to make it sufficient and valuable having regards to the facts ,
circumstances and necessities of the case.” The Court
explained the meaning of adequate consideration and held
that it does not include love, affection or spiritual benefit
as involved in a gift.
UGC J 2016 LIC of India vs. Pushpa
P.Mansukhani (25 July
1990)
UGC J 2016 Dipraich SugarMillsLtd.
Vs. Mazdur Union (23
Oct.1956)
UGC J 2016 A.B.C.Laminart Pvt. Ltd. It has been held that when more than one court has
‗Opposed to Vs. A.P.Agencies, Salem jurisdiction in a case, an agreement between the parties under
public policy‘ 1989 section 28 of the Indian Contract Act to vest the jurisdiction
in one of those courts , is not against public policy and
therefore not void under section 23 of the Contract Act.
UGC J 2016 Chief Secretary, State of Proof of loss to be given to claim special damages
Gujrat vs. Kothari and
Associates
UGC J 2016 Madras Railway Co. vs. Remoteness of damages (Liability in ordinary cases). Plaintiff
Govind Rau was a tailor delivered a sewing machine to Railway
UGC J 2016 Karsandas H.Thacker Loss of profits is special loss
vs.Saran Engg. Co.Ltd.
UGC J 2016 UOI vs. Steel Stock Consequences of delays in transit
Holders
UGC J 2017 Grainger &Son vs. Invitation to make an offer. A wine catalogue contains
Gough(1896) invitations to treat only as it contains insufficient details to
constitute contractual offers.
UGC J 2017 Maharashtra Rajya Proposal. The plaintiff offered his premises to let-out, claimed
Sahakari Kappas Utpadak that there was acceptance from the defendants. However, it
Panan Mahabha Ltd. Vs. was subsequently not materialised, and for non -user of
Manga Bhaga Chaudhary. premises he was required to incur damages consequently he
Bom.H.C. (2009) claimed Rs.1,57,500/- as rentals for thirty months,
Rs.10,000/- as repair charges and Rs.1,000/- towards notice
charges.
UGC J 2017 Henthorn vs. Fraser (1882) Revocation of offer
UGC J 2017 Powell vs. Lee (1908) Communication of acceptance of offer by acceptor by
acceptor himself
UNION PUBLIC UNION PUBLIC SERVICE COMMISSIONN
SERVICE
COMMISSIONN
192
UPSC 1988 Napier vs. National Agreement in restraint of marriage

Business Agency Ltd.
UPSC 1988 Sumitra Devi vs. Sulekha Agreement to the defeat of law
Kundu
UPSC 1988 Ratanchand Hirachand Agreement opposed to public policy
vs. Asker Navaz Jung
UPSC 1988 Maheshwar Das vs. Sakti Agreement with immoral object
Devi
UPSC 1994 Fisher vs. Bell Invitation to treat
UPSC 1994 Tinn vs. Hoffman Cross Offer
UPSC 1994 Harvey Vs. Facey Quotation of Price
UPSC 1994 Uberrima fide contract Good faith
UPSC 1994 Quid pro quo Consideration
UPSC 1994 Non est factum Defence of ―non est factum‖ enable a person who has signed
a contract to say that it is not his document because he signed
it under some mistake. Mistake must be as to the nature of
contract.
UPSC 1995 Privity of Consideration Meaning-Consideration must move from the promise.
UPSC 1995 Privity of Contract Contract Confers rights only on a party to a contract.
UPSC 1995 Contract uberrimae fidei Contract in which utmost good faith is required.
UPSC 1995 Promise for a promise Consideration executory
UPSC 1995 Leslie vs. Sheill(1914) Lord Sumner ―Restitution stops where repayment
begins.‖ This principle applies only against minor rather
than lunatic idiot or any incapable person.
UPSC 1995 Tinn vs. Hoffman Cross offers made in ignorance of each other does not create
any contract.
UPSC 1995 Fisher vs. Bell Display of an article with a price on it at a shop window is an
invitation to treat.
UPSC 1995 Carlil vs. Carbolic Smoke Performance of condition is the acceptance of the offer
Ball Company(1893)
UPSC 1995 Promisory Estoppel Promisory Estoppel is sometimes spoken of as a substitute
JPSC(J) 2016 of consideration. Reason-An act done at the promisor‘s
desire furnishes a good consideration for his promise even
though it is of no personal significance or benefit to him.
UPSC 1999 Balfour vs. Balfour Intention to create legal obligation
UPSC 1999 Offord vs. Davis Revocation of offer
UPSC 1999 Dunlop vs. Higgins Acceptance through post
UPSC 1999 Hyde vs. Wrech Counter offer
UPSC 1999 Gundy vs. Lindsey Mistaken identity
UPSC 1999 Harvey vs. Facey Cross offer
UPSC 1999 Roberts vs. Gray Minor‘s Agreement
UPSC 1999 Dunlop vs. Selfridge Privity of Contract
UPSC 1999 Dutton vs. Poole Privity of Consideration
UPSC 1999 Alcard vs. Shinner Undue influence
UPSC 1999 Couturier vs. Hastie Res Extincta
193
UPSC 2006 Ladli Prasad vs. Karnal Undue Influence

DistilleryCo.
UPSC 2006 Fraud Derry v.Peek
UPSC 2006 Ingram vs. Little Mistake as to identity of parties
UPSC 2007 Lalman Shukla vs. Gauri General Offer

Datt
UPSC 2007 Mc Pherson vs. Appana Invitation to treat
UPSC 2007 Banwarilal vs. Intention to create legal relationship
Sukhdarshan Dayal
UPSC 2007 M.C.Chackoo vs. State Privity of Contract
Bank of Travancore
UPSC 2008 Thomas vs. Justice Patterson, defined the word consideration as
Thomas(1842) ―Consideration means something which is of some value in
the eyes of law ….it may be some benefit to the plaintiff or
some detriment to the defendant.‖
UPSC 2008 Victoria Laundary Ltd. Justice Asquith ―Primary object of the law of damages for a
Vs. Newman Industries breach of contract is compensatory not penal.‖
Ltd.
UPSC 2008 Derry vs. Peek (1889) It was held that fraud is proved if false representation has
(Fraud) been has been made (1) knowingly (2) without belief in its
truth. (3) Recklessly or careless whether it be true or false.
Honest belief in fact without knowing it to be false are not
covered by fraud.
UPSC 2009 Ex nudo pacto non oriture Doctrine of Consideration Ex nudo pacto non oriture actio
action literally means ‗No cause of action arises from a bare
promise.‖ According to section 25 , an agreement without
consideration is void.
UPSC 2009 West Bengal Financial Anticipatory breach of Contract ―When a party to a
Corporation vs. Gluco contract has refused to perform, or disabled himself from
Series performing , his promise in its entirety..‖
UPSC 2009 Union of India vs. Steel Section 72-Unjust benefit under mistake
Authority of India
UPSC 2009 Salima Jabeen vs. National Novation
Insurance Co.
SOME IMPORTANT SOME IMPORTANT SECTIONS

SECTIONS
UGC J 2015 11 Doctrine of estoppel
UGC J 2015 23 and section 65 Doctrine of Pari Delicto (Legal principle that if two parties
in a dispute are equally at fault). Where contract is void by
reason of unlawful objet but parties were not aware of it.
Onkarmal vs. Banwari Lal .
UGC J 2015 56 Doctrine of Absolute contract
UGC J 2015 72 Doctrine of Unjust Enrichment
PART-2
194
1 CONSIDERATION
UGC D2007 Currie vs. Misa Justice Lush, ― A valuable consideration, in the sense of the
Consideration (1875) Definition of law, may consist either in some right, interest, profit, or
Consideration in English benefit accruing to the one party, or some forbearance,
Law. Justice Lush detriment, loss or responsibility, given, suffered, or
undertaken by the other..."
UGC D2007 Kedar Nath vs. Gauri Charitable subscription Rs.100 for construction of Town Hall
Consideration Mohammad at Howrah. Calcutta High Court held that engaging a
(Charitible (1886) contractor and starting the construction on the faith of the
purpose) promise was sufficient consideration to enforce the promise
and, therefore, the defendant was bound to pay the amount
promised by him.
UGC D2007 Abdul Aziz vs. Masum Ali All.H.C. Charitable subscription Rs.500 for Mosque repair.
Consideration (1914) Repairs not started as yet. Held not liable. It is different from
(Charitible Kedar Nath case. Here work had not been started
purpose)
Consideration Shadwel vs. Consideration in this case was a benefit to the uncle, as
(Performance Shadwel(1860) marriage of a near relative could be of interest to him and, and
of an existing also detriment to A, as he might have incurred pecuniary
duties to a liabilities on the faith of the promise.
third party.)
UGC D2007 Gopal Co. Ltd. Vs. Principle laid down in Shadwel vs. Shadwel was followed in
Consideration Hazarilal Co. Ltd.(1963) this case. It was held that the defendant‘s guarantee to the Mll
(Performance to procure the permormance of the contract by the plaintiff
of an existing was good consideration as they were interested in getting the
duties to a contract performed , and further that the mutual promise ,
third party.) i.e.,the promise by the defendant to pay the sum and promise
by the plaintiff to lift the bales were enforceable.
UGCJ 2015 Kedar Nath Bhattacharji An act done at the promisor‘s desire furnishes a good
Consideration vs. Gori Mohammad consideration for his promise even though it is of no personal
(1886). ―…at the desire of significance or benefit to him.
the promisor..‖
UGC J 2016 Sonia Bhatia vs. State of ―Consideration means a reasonable , equivalent or other
Uttar Pradesh (17 valuable benefits passed on by the transfer to the transferee.
March1981) Similarly , when the word „consideration‟ was qualified by
the word „adequate‟ it makes the consideration stronger so as
to make it sufficient and valuable having regards to the facts ,
circumstances and necessities of the case.” The Court
explained the meaning of adequate consideration and held
that it does not include love, affection or spiritual benefit
as involved in a gift.
UPSC 1995 Privity of Consideration Meaning-Consideration must move from the promise.
UPSC 1995 Privity of Contract Contract Confers rights only on a party to a contract.
UPSC 1995 Contract uberrimae fidei Contract in which utmost good faith is required.
195
UPSC 1995 Promise for a promise Consideration executory

UPSC 1995 Promisory Estoppel Promisory Estoppel is sometimes spoken of as a substitute
JPSC(J) 2016 of consideration. Reason-An act done at the promisor‘s
desire furnishes a good consideration for his promise even
though it is of no personal significance or benefit to him.
UPSC 1999 Dutton vs. Poole Privity of Consideration
UPSC 2008 Thomas vs. Justice Patterson, defined the word consideration as
Thomas(1842) ―Consideration means something which is of some value in
the eyes of law ….it may be some benefit to the plaintiff or
some detriment to the defendant.‖
UPSC 1994 Quid pro quo Consideration
1880 Durga Prasad vs. Baldeo Consideration only at the desire of the promisor.
Kinds of Consideration (1) Past Consideration –has done or abstained from doing
(2)Present Consideration (Executed Consideration)- does or
abstains from doing,(3) Future Consideration(Executory
Consideration)-promises to do or to abstain from doing
2 PINNEL‘S RULE (1602) An agreement to pay smaller sum in lieu of a larger sum is not
binding as the agreement is without consideration. It means
that in spite of promise to pay and receive a smaller amount
than due, the promisor can claim the whole of the amount
due.
Exceptions of PINNEL‘S (1) Payment in kind for example horse, hawk or robe etc.(2)
RULE (1602) Payment before due date.(3) Part payment by a third party-
Hirachand Punamchand vs. Temple (1911). (4)
Composition with creditors (5) Doctrine of Promissory
estoppel
Pinnel‘s rule PINNEL‘S RULE (1602) ―Every promisee may dispense with or remit wholly or in part
is not & Section 63 of ICA , the performance of the promise made to him, or may extend
applicable in the time for such performance , or may accept instead of it
India. Reason any satisfaction which he thinks fit.‖
Section 63
3 CONSIDERATION
Difference PRIVITY OF PRIVITY OF CONTRACT
CONSIDERATION
Meaning Only parties to the contract Only party to the contract can make the contract to be
can give consideration to enforced. Third person is not allowed to file a suit for
each other. Third person is enforcement of contract.
not allowed to give
consideration on behalf of
either party.
England It is applicable. (1) Thomas It is applicable.
vs. Thomas-1842 (2)
Tweddle vs. Atkinson-
1861
India It is not applicable. It is applicable.
196
Reason- Section
2(d)….promisee or any
other peerson .Chinnaya
vs. Ramaya -1882
PRIVITY OF
CONSIDERATION
1678 Dutton vs. Poole (Father Principle of Privity of consideration was denied to apply. On
did not sell wood on the the basis of decision of this case, in section 2(d) even a third
promise of son that son person is allowed to give consideration. Near about after 200
would pay expenses of years of this judgment , in 1861in Tweddle vs. Atkinson
marriage. Daughter was Justice Whitman refused to follow the principles laid down in
allowed to recover money Dutton Case.
from her brother.
1861 Tweddle vs. Atkinson. Justice Whitman, first time recognized the principle of
Justice Whitman Privity of Consideration. ―It is established principle that no
stranger to the consideration can take advantage of a contract,
although made for his benefit.‖ It also laid down the
foundation for Privity of contract.
PRIVITY OF
CONTRACT
1861 Tweddle vs. Atkinson. Privity of Contract was applied.
Justice Whitman
1915 Dunlop Pneumatic Tyre Lord Viscount Haldane-He affirmed the principle of Privity
Co.Ltd. vs. Selfridge & of Contract. But also accepted one exception of this, namely,
Co.Ltd. trust of contractual right . Under the English Common Law
only a person who is a party to a contract can sue on it and
that the law knows nothing of a right gained by a third party
arising out of a contract. It has however been recognised that
where a trust is created by a contract, a beneficiary "may
enforce the rights which the trust so created has given him
The basis of that rule is that though he is not a party to the
contract his rights are equitable and not contractual.
1910 Khwaja Muhammad Khan The Judicial Committee applied rule of Privity of Contract to
vs. Hussaini Begum an Indian case .
1911 Jamna Das Vs. Ram Autar The Judicial Committee pointed out that the purchaser's
contract to pay off a mortgage debt could not be enforced by
the mortgagee who was not a party to the contract.
1969 M.C.Chackoo vs. State The Supreme Court has expressed itself in favour of the rule
UPSC2007 Bank of Travancore in Tweddle vs. Atkinson . Justice Shah , ―The Judicial
Committee applied that rule laid down in Dunlop Pneumatic
Tyre Co. v. Selfridge & Co. to an Indian case Khwaja
Muhammad Khan v. Husaini Begam and Jaman Das v. Ram
Autar. It must therefore be taken as well settled that
except in the case of a beneficiary under a trust created by
a contract or in the case of a family arrangement, no right
197
may be enforced by a person who is not a party to the

contract.‖
EXCEPTIONS (1)Trust of Contractual rights or beneficiary under a contract
OFPRIVITY OF (2)Conduct, acknowledgement or admission
CONTRACT
(1) Dunlop Pneumatic Tyre 1)Trust of Contractual rights or beneficiary under a contract
Co.Ltd. vs. Selfridge &
Co.Ltd. (2) Khwaja
Muhammad Khan vs.
Hussaini Begum
1973 Narayani Devi vs. tagore (2)Conduct, acknowledgement or admission
Cal.H.C. Commmercial Corpn.Ltd
1910 Khwaja Muhammad Khan Provision for marriage expenses or maintenance under family
vs. Hussaini Begum arrangement
4 OFFER (1)Offer (2)Invitation to Offer (3) Cross Offer (4) Counter
Offer (Standing or Continuing Offer
OFFER Section 2(a) & Invitation to Offer is an invitation to make an offer. It is a
Invitation to Offer prior stage of offer.
1892 Carlill vs. Carbolic English contract law decision by the Court of Appeal, which
General Smoke Ball Co. held an advertisement containing certain terms to get a reward
Offer constituted a binding unilateral offer that could be accepted
by anyone who performed its terms.
INVITATION TO
OFFER
1873 Harris vs. Nickerson An advertisement by the auctioneer to sale goods by auction
(Auction for sale) being an invitation to offer rather than an offer. Fact-The
defendant advertised a sale by auction. The plaintiff travelled
to that place but he found that auction had been cancelled. So
he claimed for travelling allowances. The Court rejected his
claim. It was held that there was no any contract.
1893 Harvey vs. Facey It was held that quotation of price was not an offer. It was
(Bumper Hall Pen Case) merely invitation to offer. Facts-Defendants were the owners
of a plot of land known as ‗Bumper Hall Pen‘.
1952 Pharmaceutical Society When the goods are displayed either in show-window or
Lord Goddard of Great Britain vs. Boots inside the shop and such goods bear price-tags, these are
Cash Chemists Ltd. (Self- merely invitation to offer rather than offer. If the intending
serving Scheme) buyer is willing to purchase the goods at a price mentioned on
the tag, he makes an offer to buy the goods. The shopkeeper
has option either to accept or reject the offer. Lord
Goddard, ―I think that it is well established principle that the
mere exposure of goods for sale by a shopkeeper indicates to
the public that he is willing to treat but does not amount to
offer to sell…‖
INDIA
1951 First Mac Pherson vs. Similar facts to Harve vs. Facey. Latter from the defendant‘s
Case by S.C. Appanna agent was not a counter offer but was a mere quotation
198
amounting to invitation to offer.

1970 Badri Prasad vs. State of The Supreme Court held that the letter from the Divisional
M.P. Forest Officer seemed to be merely invitation to offer rather
than offer. The letter in reply from the plaintiff was an offer.
2003 Bank of India vs. Swarnkar S.C. held that contract of employment is governed by
Contract Act. Announcement of Voluntary Retirement
Scheme by nationalized bank is not an offer. The employee
offering to retire makes an offer and the same becomes
effective when the written request of retirement is accepted.
An employee who has offered to retire under the scheme can
withdraw before his request is accepted.
5 INTENTION TO
CREATE LEGAL
RELATIONSHIP
England
1888 Mc Gregor vs. Mc Gregor The wife withdrew her complaints as the husband entered into
an agreement with her on the condition that if she withdrew
her complaints and refrained from pledging his credit, he will
pay her an allowance. This Contract is binding although it is
related to family matters, here parties had intention to create
legal intention.
1919 Lord Balfour vs. Balfour Defendant was employed in government job in Ceylon, went
Atkin to England with his wife on leave. Due to health reason, wife
had to reside in England and husband promised to pay
maintenance. The Court held that there was no intention to
create legal relationship. So husband was not liable.
1925 Rose and Frank Co. vs. The agreement between the parties to the contract provided
Crompton & Bros. Ltd. that, ―That agreement is not entered into …..as a formal or
legal agreement…‖ The Court held that since the agreement
had provided that it was not a formal or legal agreement , the
same was not enforceable.
1969 Jones vs. Padavatton Agreement between mother and daughter. There was no
intention to create legal relationship. The mother‘s action
against the daughter for eviction succeeded.
1970 Meritt vs. Meritt In this case, due to insistence of wife , husband signed a note
before going to another wife. According to this note, wife had
to pay mortgage money and in lieu of this husband promised
to transfer sole ownership in favour of wife. The Court held
that it was clear from the facts that there was intention to
create legal relationship so wife was entitled to get sole
ownership.
INDIA
1988 CWT VS. Abdul Hussain ―….The presumption is that legal obligations are intended .
Mulla Mohd Ali The onus is on the parties asserting the absence of legal
obligations and the test is not subjective but is an
objective…‖ Privity of contract was accepted.
199
6 COMMUNICATION OF
OFFER
1913 All.H.C. Lalman Shukla vs. Gauri Acting without knowledge of offer does not amount to the
Datt defendant‘s nephew. acceptance of the offer. After finding of nephew, servant
(1) General Offer knew about reward. It was held that since the plaintiff was
(2)Communication of ignored of the offer of the reward, his act of the bringing the
Offer lost boy did not amount to the acceptance of the offer and
therefore, he was not entitled to claim the reward.
1833 Williams vs. Carwardine Approver (She) had knowledge of offer of reward but she was
not intended to claim reward. Later on she claimed for
reward. It was held that acceptance of offer with knowledge
was sufficient. She was entitled to award.
7 COMMUNICATION OF
ACCEPTANCE
1863 Felthouse vs. Bindley Acceptance should be communicated by the offeree to the
offeror. In this case there was no communication of
acceptance. Other party presumed acceptance.
Powell vs. Lee Communication must be made by the offeree or his
1908 authorized agent. (Selection of teacher case)
1980 Karan Singh vs. The ―….posted to him..‖ Offeror becomes bound as soon as the
Collector (Wrong letter is posted to him(offeror). If the letter of acceptance is
address) posted at a wrong address or to a wrong person rather than
offeror, that will not bind the offeror.
8 EFFECT OF
ACCEPTANCE
Anson Anson‘s Law of Contract ―Acceptance is to an offer what a lighted match is to a train
(Gunpowder) of gunpowder. It produces something which cannot be
recalled or undone….‖
Acceptance by Telephone ACCEPTANCE BY TELEPHONE OR TELEX
or Telex
UGC J 2007 Entores Ltd. Vs. Miles The claimant sent a telex message from England offering to
Direct Far Wast Corporation purchase 100 tons of Cathodes from the defendants in
Communicati (1955) Holland. The defendant sent back a telex from Holland to the
on Denning LJ ―Applying the London office accepting that offer. The question for the court
River, principles which I have was at what point the contract came into existence. If the
Courtyard. stated, I think that the acceptance was effective from the time the telex was sent the
Aircraft contract in this case was contract was made in Holland and Dutch law would apply. If
flying. made in London where the the acceptance took place when the telex was received in
Contract by acceptance was received. It London then the contract would be governed by English law.
telephone. was, therefore, a proper Held: To amount to an effective acceptance the acceptance
Line goes case for service out of the needed to be communicated to the offeror. Therefore the
dead. jurisdiction.‖ contract was made in England.
Bhagwandas Denning LJ. ―Where two people make a contract by word
Goverdhandas Kedia vs. of mouth in the presence of one another. Suppose, for
M/s. Girdharilal instance, that I shout an offer to a man across a river or a
200
Parshottamdas And Co. &courtyard but I do not hear his reply because it is drowned
Ors. (30 August 1965) is
by an aircraft flying overhead. There is no contract at that
based on Entores Ltd. Vs.
moment. If he wishes to make a contract, he must wait till the
Miles Far Wast
aircraft is gone and then shout back his acceptance so that I
Corporation. can hear what he says… Now take a case where two people
make a contract by telephone. Suppose, for instance, that I
make an offer to a man by telephone and, in the middle of his
reply, the line goes "dead" so that I do not hear his words of
acceptance. There is no contract at that moment. The other
man may not know the precise moment when the line failed.
But he will know that the telephone conversation was
abruptly broken off: because people usually say something to
signify the end of the conversation. If he wishes to make a
contract, he must therefore get through again so as to make
sure that I heard. Suppose next, that the line does not go dead,
but it is nevertheless so indistinct that I do not catch what he
says and I ask him to repeat it. He then repeats it and I hear
his acceptance. The contract is made, not on the first time
when I do not hear, but only the second time when I do hear.
If he does not repeat it, there is no contract. The contract is
only complete when I have his answer accepting the offer.
Acceptance Bhagwandas Bhagwandas Goverdhandas Kedia vs. M/s. Girdharilal
by telephone Goverdhandas Kedia vs. Parshottamdas And Co. & Ors. is based on Entores Ltd. Vs.
or Telex (1) M/s. Girdharilal Miles Far Wast Corporation.
Shah, J.C. Parshottamdas And Co.
(2)Wanchoo, & Ors. (30 August 1965)
K.N.(3)Hiday
atullah, M.
9 MINOR
1903 Mohori Bibee Vs. The Dharmodas Ghose lent the minor the sum of 20,000
Lord North Dharmodas Ghose rupees at 12% interest and secured the loan by way of
mortgage executed by the minor in favor of the Dharmodas
Ghose. Contract made by minor is void. Sections 64 & 65
apply when party to contract is competent.
1928 Suraj Narain v. Sukhu A contract made by minor is void ab initio. So later on minor
Aheer after becoming major by his ratification cannot changed
agreement into contract.
DOCTRINE OF Doctrine of restitution means restoring of the same property.
RESTITUTION It is applicable only to goods or property received by a minor
so long they can be traced and are still in his possession.
Same money is not traceable. So doctrine of restitution is not
applicable in money case.
1914 Leslie vs. Sheill Minor got Doctrine of Restitution is to restore back the ill-gotten gains
Lord Sumner money by falsely by minor rather than enforcing the contract. If minor is asked
201
representing himself as a to pay money which cannot be traced and which he no more
major. The Cou possession. Then Doctrine of Restitution would not be apply.
Lord Sumner ―Restitution stops where repayment
begins.‖ This principle applies only against minor rather than
lunatic idiot or any incapable person.
1928Lah.H.C Khan Gul vs. Lakha Doctrine of Restitution The plaintiff who had advanced a
Sir Shadi Lal Singh sum of Rs. 17500to a minor brought an action against him to
C.J. recover the amount. The minor was held liable to refund the
same.
1937 All.H.C. Ajdhia Prasad vs. Doctrine of Restitution. All. H.C. expressed just opposite
Chandan Lal view of Khan Gul Case. (1) Minor cannot be asked to give
relief to the other party when the minor is defendant in the
case. (2) A minor can be asked to give relief when he himself
is plaintiff and wants some relief for himself.
1949 Bom. Raj Rani vs. Prem Adib A contract of service entered into by a minor is void. Film
H.C. producer did not give any work to a minor child. So case was
filed against producer. A contract of service entered into by
a minor is void.
NECESSARIES
(SECTION 68)
1840 Peters vs. Fleming The Court took judicial notice that it was prima facie not
Watch and a unreasonable an undergraduate at a college should have a
watch chain watch and a watch chain. Fact-Where undergraduate in the
Eleven fancy Cambridge University, who was supplied with number of
waistcoats. dresses, including eleven fancy waistcoats. The Court held
Section 68 that price was irrecoverable.
1908 Nash vs. Inmam (1908) Minor‘s Liability. There are two theories relating to the
Section 68 Fletcher Moulton LJ liability of a minor‘s estate for necessaries .First-Liability
without consent of minor (Nash vs. Inmam and Section 68 of
The Indian Contract Act)(2) Liability with consent of minor.
1909 Jagon Ram vs. Mahadeo ―Necessaries‖ means goods suitable to the condition in life of
Prasad Sahu the defendant and to his actual requirements at the time of the
sale and delivery, and whether an article supplied to an
infant is necessary or not, depends upon its general
character and upon its suitability to the particular infant's
means and station in life. It must further be observed that as
―necessaries‖ include everything necessary to maintain the
infant in the state, station, or degree of life in which he is,
what is necessary is a relative fact, to be determined with
202
reference to the fortune and circumstances of the particular

infant; articles therefore that to one person might be mere
conveniences or matters of taste, may in the case of another
be considered necessaries, where the usages of society render
them proper for a person in the rank of life in which the infant
moves.
Great American If a contract is made on behalf of a minor by his guardian and
Insurance Co. Ltd. Vs. for the benefit of the minor , he is entitled to sue on the
Madan Lal contract.
10 FREE CONSENT
11 COERCION (England- Section 16 , Law Commission of India- 13th Report (1958)
Duress)
1989 Mad Ranganayakamma vs. Adoption of a boy by a widow
Alwar Setti
1918 Mad Chikkan Amimiraju A, a Hindu, by a threat of suicide, induced his wife and son to
vs.Chikkkam Seshama execute a release deed in favour of A‘s brother..
2001 Delhi Krishna Lal Kalra vs. Forcible dispossession of property is a coercion.
N.D.M.C.
NO COERCION
1966 Assam Workmen of Appin Tea ..because of the Doctrine of Collective Bargaining under the
Estate vs. Industrial Industrial Disputes Act, demands of the workers is not
Tribunal coercion‘
1968 S.C. Andhra Sugars Ltd. Vs. Statutory compulsion is no coercion .
State of A.P.
12 Undue Influence (section

16 )
1890 Mannu Singh vs. Umadat Fiduciary Relation
Pande
UPSC 1999 Alcard vs. Shinner Undue influence
UPSC 2006 Ladli Prasad vs. Karnal Undue Influence
DistilleryCo.
13 Section 17 Derry v.Peek
14 MISTAKE
1864 Raffles vs. Wichelhaus MISTAKE Two ships of the same name i.e. Peerless. Both
(No consensus ad idem ) were sail from Bombay , one in Oct. and other in Dec. The
Two Peerless Ship Case. buyer had a mind Peerless sailing in October, whereas the
seller thought of the ship sailing in December. In the case ,
the offer and acceptance did not coincide and there was no
contract and therefore ,it was held that the buyer was entitled
to refuse to take delivery.
1980 S.C. Ningawwa vs. Byrappa MISTAKE Where there is fraudulent misrepresentation as to
contents of documents and its character. Signer did not intend
203
to sign a particular documents, it is totally void transaction.

1990 S.C. Dularia Devi vs. Janardan MISTAKE Pliantiff was a illiterate women. She was
Singh Case. intended only for gift of some property. But due to fraud
caused to her , she had also signed on sale deed. Sale deed
was void, because her mind did not accompany her thumb
impression.
1878 Cundy vs.Lindsay MISTAKE- Mistake as to identity of parties. There was
mistake in identity of party to the contract when the
parties was not face to face, but were negotiating through
post. It was held that because of mistake Blenkarn did not
get any title to the goods and the transferee from
Blenkarn,i.e., defandants also did not get any title and
they were bound to return the goods to the plaintiff.
1919 Phillips vs. Brooks Ltd. Mistake as to identity of parties
1961 Ingram vs. Little Mistake as to identity of parties
15 OBJECT AND Section 23-―The consideration or object of an agreement is
CONSIDERATION lawful unless-(1) It is forbidden by law or (2) is of such a
nature that if permitted it would defeat the provisions of law;
or (3) is fraudulent ,or (4) involves or implies injury to the
person or property of another or (5) the Court regards it as
immoral or opposed to public policy.
1 Forbidden by law
1987 Brij Mohan vs. MPSRTC RESPONDENT Corporation having a permit to run a bus on
a certain route entered into an agreement with the petitioner to
allow the petitioner to run his bus as nominee of the said
corporation. It was held that said agreement being void as
violative of the provisions of the Motors Vehicles Act, was
not enforceable.
DISTINCTION BETWEEN VOID AND ILLEGAL
AGREEMENT
2000Oriss Rajat KumarRath vs.Gov. Both kinds of agreement have no legal effect. If the
H.C. of India agreement is merely void the collateral agreement are not
affected. But if the agreement is unlawful, the agreement
which are collateral thereto are also void.
2 DEFEAT THE
PROVISIONS OF ANY
LAW
1982 All.H.C. Ram Sewak vs. Ram The parties agreed to carry on business in partnership . The
Charan agreement provided that they would conceal some activities
of their business to that they can escaped from tax paying.
One partners brought an action for recovery of the due
amount to him. His action was dismissed and it was held that
aim of the agreement was to defeat the provisions of tax laws.
IMMORAL Narayani vs. Pyare Mohan
16 WAGERING
CONTRACT Section 30
204
1892 Justice Carlill vs. Carbolic Meaning of Wagering Contract. Conditions-(1) Opposite
Hawkins Smoke Ball Co. views about an uncertain event, and (2) Chances of gain or
loss to the parties , and (3) No other interest in the event
except the amount of bet
1959 S.C. Gherulal Prakash vs. Wagering agreement is void and unenforceable, but it is not
Mahadeodass The forbidden by law and therefore the object of a collateral
appellant and respondent agreement is not unlawful under section 23 of the Contract
entered into partnership for Act.
carrying on wagering The respondents who incurred some loss on behalf of the
transactions. firm, brought an action against the appellant to recover his
share of the loss. The claim was allowed by the Supreme
Court.
17 ANTICIPATORY (1) Hochster vs. De La Tour (2) Frost vs. Knight (3)West
BREACH OF Bengal Financial Corporation vs. Gluco Series
CONTRACT SECTION
39
1853 Lord Hochster vs. De La Tour. Immediate Right of action. It held that if a contract is
Campbell In April, De La Tour repudiated before the date of performance, damages may be
agreed to employ Hochster claimed immediately. Lord Campbell ―If a man promises to
as his courier for three marry a woman on a future day, and before that day marries
months from 1 June 1852, another woman, he is instantly liable to an action for breach
to go on a trip around of promise of marriage; Short v Stone. If a man contracts to
the European continent. On execute a lease on and from a future day for a certain term,
11 May, De La Tour wrote and, before that day, executes a lease to another for the same
to say that Hochster was no term, he may be immediately sued for breaking the
longer needed. On 22 May, contract; Ford v Tiley. So, if a man contracts to sell and
Hochster sued. De La Tour deliver specific goods on a future day, and before the day he
argued that Hochster was sells and delivers them to another, he is immediately liable to
still under an obligation to an action at the suit of the person with whom he first
stay ready and willing to contracted to sell and deliver them; Bowdell v Parsons….‖
perform till the day when
performance was due, and
therefore could commence
no action before. This
argument was denied and
he was liable to pay
compentation.
1872 Frost vs. Knight. Defendant promised to marry the plaintiff on the death of his
Anticipatory breach of a father. The father still living, defendant announced his
contingent Contract. Even intention of not fulfilling his promise on his father‘s death and
when performance of a broke off his engagement. The plaintiff without waiting for
contract is conditional the father‘s death, at once brought an action for the breach.
upon the happening of a She was successful for her action.
contingency, an immediate
action for damages will lie,
if before the happening of
205
the contingency, the

promisor disables himself
from performance.
1973 West Bengal Financial Section 39 would be applied when performance of contract
Corporation vs. Gluco has been denied in its entirety. In case of partial denying
Series section 39 (anticipatory breach of contract) would not be
applied. It was held A had already advanced some loan which
B had accepted, there cannot be said to be refusal on A‘s part
to the performance of the contract in its entirety.
18 DOCTRINE OF
FRUSTRATION
1647 Paradine vs. Jane (1647). In this case it was pointed out that subsequent happening
Court did not Court did not apply should not affect a contract already made. Court held that in
apply doctrine doctrine of frustration. any circumstance even the land surrounded or gained by the
of frustration. sea or made barren by wildfire , yet the lessor will have his
whole rent. In this case defendant was dispossessed by alien
enemy. Even he was held liable for paying of rent.
1863 Taylor vs. Caldwell Justice Blackburn said that law laid down in Paradine vs. Jane
First time ‗Music Hall Case‘ case would be applied only when the Contract was positive
Justice and absolute. In this case ‗music hall‘ was destroyed by fire
Blackburn without the fault of either party. Justice Blackburn held,
applied ―Contract was not absolute, as its performance depends upon
Doctrine of the continued existence of the hall. It was therefore subject to
Frustration. implied condition that the parties shall be executed in case,
before breach, performance becomes impossible from the
perishing of thing without default of the contractor.‖
1871 Robinson vs. Davison Piono Player Case
1903 Krell vs.Henry Coronation Case. Doctrine of frustration is not confined to
physical impossibilities. It extends also to cases where the
performance of the contract is physically possible, but the
object the parties had in mind has failed to materialize.
.1945 Cricklewood Property and The Court Held, ―Even if the doctrine of frustration could
Investment Trust Ltd. apply to a lease, the circumstances did not justify such
Vs.Leighton‘s Investment application; the lease had not been determined by frustration,
Trust Ltd. and the liability for rent continued. The regulations were
temporary, and the lease was therefore not frustrated.‖
1954 Satyabrat Ghose vs. Justice B.K.Mukherjea It is the first case in which case
Mugneeram Supreme Court clearly held that Doctrine of Frustration is
covered by section 56 of the Contract Act.
Exceptions of Doctrine of (1) No frustration of executed (Present ) contracts – Dhruv
Frustration Dev vs. Harmohinder Singh (2) No frustration by mere likely
delay in performance- Satyabrata Ghose vs. Mugneeram
(3) Immposibility does not mean mere commercial difficulty-
Punj Sons Pvt. Ltd. Vs. Union of India and Ganga Saran
vs. Ram Charan (1952)S.C.
NOVOTATION Section Notation is of two kinds-(1) Novation by change in the terms
206
62 Jabeen vs. National of the contract Salima Jabeen vs. National Insurance Co.
Insurance Co. Ltd. Ltd. (1999) J&K, and (2) Novation by change in the parties to
the contract.
19 QUASI CONTRACT
1760 MMM Moses vs. Macferlan Lord Real founder of Principle of Unjust enrichment which is
Mansfield based on natural justice and equity to refund the money.
Unjust Enrichment means enrichment of one person at the
cost of another.
Sections 68 - 72 Section 68 – Supply of necessaries, Section 69 – Payment by
interest person, Section 70-Laibility to pay for non-gratuitous
acts, Section 71- Finder of goods Section 72- Payment by
mistake or under coercion.
SECTION 68 SUPPLY OF NECESSARIES
If a person,(1) incapable of entering into a contract (for
example minor or person of unsound mind) or (2) any one
whom he is legally bound to support (for example minor‘s
son or wife ) , is supplied by another person with necessaries
suited to his condition in life, the person who has furnished
such supplies is entitled to be reimbursed from the property
of such incapable person.
1840 Peters vs. Fleming The Court took judicial notice that it was prima facie not
Section 68 Watch and a watch chain unreasonable an undergraduate at a college should have a
Eleven fancy waistcoats. watch and a watch chain. Fact-Where undergraduate in the
Cambridge University, who was supplied with number of
dresses, including eleven fancy waistcoats. The Court held
that price was irrecoverable.
1908 Nash vs. Inmam Fletcher Minor‘s Liability. There are two theories relating to the
Moulton LJ liability of a minor‘s estate for necessaries .First-Liability
Section 68 without consent of minor (Nash vs. Inmam and Section 68 of
The Indian Contract Act) (2) Liability with consent of minor.
1909 Jagon Ram vs. Mahadeo ―Necessaries‖ means goods suitable to the condition in life of
Prasad Sahu the defendant and to his actual requirements at the time of the
sale and delivery, and whether an article supplied to an infant
is necessary or not, depends upon its general character and
upon its suitability to the particular infant's means and station
in life. It must further be observed that as ―necessaries‖
include everything necessary to maintain the infant in the
state, station, or degree of life in which he is, what is
necessary is a relative fact, to be determined with reference to
207
the fortune and circumstances of the particular infant; articles

therefore that to one person might be mere conveniences or
matters of taste, may in the case of another be considered
necessaries, where the usages of society render them proper
for a person in the rank of life in which the infant moves.
DAMAGES There are two questions related to damages (1) TO decide
that certain damages are proximate consequences of
breach of contract rather than remote. For this, answer
was given in Hadley case and two circumstances were
mentioned, (i) Damage arising in the usual course of things,
(ii) More loss arising from the special circumstances. Second
questions is Measure of Damages
1 proximate consequences
of breach of contract
rather than remote
First Rule (1) Damage arising in the
usual course of things
23 Feb 1854 Hadley vs. Baxandale Justice Alderson. Remoteness of Damages, (1) Damages
Justice The crank shaft that arising in the usual course of things (2) Special Damages.
Alderson. operated the mill broke and Section 73. Justice Alderson ―(1) Where two parties have
halted all mill operations. made a contract which one of them has broken, the damages
... As a result, Hadley which the other party ought to receive in respect of such
obtained the new crank breach of contract should be such as may fairly and
shaft several days later reasonably be considered either arising naturally, i.e.,
than expected, during according to the usual course of things, from such breach of
which time the mill contract itself, or such as may reasonably be supposed to have
remained closed. been in the contemplation of both parties, at the time they
Hadley brought suit made the contract, as the probable result of the breach of it.
against Baxendale for (2) Now, if the special circumstances under which the
damages, including lost contract was actually made were communicated by the
profits from the delay. plaintiffs to the defendants, and thus known to both parties,
Baxendale was not liable the damages resulting from the breach of such a contract,
for loss. which they would reasonably contemplate, would be the
amount of injury which would ordinarily follow from a
breach of contract under these special circumstances so
known and communicated. ..‖
1949 Victoria Laundry Newman Industries Ltd was meant to deliver a boiler
(Windsor ) Ltd. Vs. for Victoria Laundry (Windsor) Ltd. ... As a result of not
Newman Industries Ltd. having enough laundry capacity, Victoria Laundry lost a
lucrative cleaning contract from the Ministry of Supply. He
was liable only for ordinary loss. But the defendants did not
know that the plaintiff could have highly lucrative contracts.
So he was not liable for special loss.
UGC J 2016 Madras Railway Co. vs. Remoteness of damages (Liability in ordinary cases). Plaintiff
Govind Rau was a tailor delivered a sewing machine to Railway
UGC J 2016 Karsandas H.Thacker Loss of profits is special loss
208
vs.Saran Engg. Co.Ltd.

UGC J 2016 UOI vs. Steel Stock Consequences of delays in transit
Holders
MENTAL AGONY
1993 Lucknow Development Wherein this Court has upheld the award of a compensation
5th Nov. Authority Vs. M.K. Gupta. of Rs.10,000/- for mental harassment. The Court has stated
Compensation for mental inter alia - Where it is found that exercise of discretion was
harassment was allowed . mala fide and the complainant is entitled to compensation for
mental and physical harassment then the officer can no more
claim to be under protective cover. It is further directed that
the Lucknow Development Authority shall fix the
responsibility of the officers who were responsible for
causing harassment and agony to the respondent within a
period of six months from the date a copy of this order is
produced or served on it. The amount of compensation of Rs
10,000 awarded by the Commission for mental harassment
shall be recovered from such officers proportionately from
their salary.
2000 Ghaziabad Development This case relates to allotment of a flat. Compensation for
Authority vs. UOI . mental anguish was denied. the direction made by the MRTP
Compensation for mental Commission for payment of Rs.50,000/- as compensation for
harassment was not mental agony suffered by the claimants-respondents was set
allowed asided.
BREACH OF PROMISE
TO MARRIAGE
1987 Prema vs. Mustak In this case , exemplary damages were allowed to the
Ahmed plaintiff, Miss Prema.
1995 Laxminarayan vs.She was entitled for compensation on various counts , such as
Sumitra physical pain, agony , indignity chances of marriage
becoming dim and social stigma.
MORE LOSS FROM THE SPECIAL
CIRCUMSTANCES.
1876 Simson vs. London & S a manufacturer, was in the habit of sending specimens of
North Western Railway his goods for exhibition to agricultural shows. After
Co. exhibiting a show at Belford, he entrusted some of his
samples to an agent of D company for carriage to another
show at Newcastle. On the consignment he wrote: ―Must be at
Newcastle Monday certain‖ Owing to a default on the part of
the company, the samples arrived late for the show. S
therefore claimed damages for the loss of profits at the show.
Held that the company was liable as the agent had the
knowledge of the special circumstances.
1952 Nag. Dominion of India vs. All There was no special knowledge. So he was entitled only for
H.C. India Reporter Ltd. the loss of three volumes of Indian Digest.
2 MEASURE OF
209
DAMAGES
1916 Jamal vs. Moola Dawoood Measure of damages , Duty to mitigate, Section 73,
Explanation. Actual re-sale by the seller is not necessary.
Duty to Mitigate the loss
1916 Jamal vs. Moola Dawoood Duty to mitigate, Section 73, Explanation.
1975Kant. M.Nanjappa vs. Duty to mitigate, Section 73, Explanation.
Muthuswamy
Section 74
1998 Kant. M/s Ganga Maruthi Vs. Compentation for breach of contract where penalty is
Nagaraj (1998). stipulated for. The plaintiffs ,dealer in Television sets and the
It was held that keeping the defendant had approached the plaintiff to purchase Black and
provision of sec. 74, the White T.V. set on credit and T.V. was sold to the defendant
plaintiff may be awarded on 6-2-1990 on credit and the defendant had assured and
interest at the rate of rs. 10 made plaintiff to believe that he would pay the value of T.V.
for every installment that is set in 36 equal monthly intalments at the rate of Rs. 236/- per
a total of rs. 310 only, apart month and in case of default penalty of Rs. 100/- for each
from the amount agreed to defaulting month.
be paid by 31 remaining
instalments rather than 100
rs per instalment.
QUANTUM MERUIT
1971 Puran Lal v. State of SC held, ―Quantum meruit remedy would be available only
Uttar Pradesh when the original contract had been discharged
by the defendant in such a way as to entitle the plaintiff to
regard himself as discharged from any further performance,
and be elects to do so; but, where work is done under a
contract persuant to its terms no amount can be claimed by
way of quantum meruit….‖.
KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, DR.AGLC, PUDUCHERRY.

HINDU MARRIAGE ACT, 1955
MEANING OF (1) Hindu by Religion- Any person who is Hindu, Jain Sikh or
HINDU Budhist by religion (2) Hindu by birth-Any person who is born
of Hindu parents ( When both the parents or one of the parents is
a Hindu, Jain,Sikh or Buddhist by religion and brought up as a
Hindu). (3) Any person who is not a Muslim, Christian, Parsi or
Jew and who is not governed by any other law.
UGC J Shatri vs. Muldas1966 MEANING OF HINDU -Justice Gajendragadkar, ― Beneath
2017 the diversity of philosophic thoughts, concepts and ideas
expressed by Hindu philosophers who started different
philosophic schools, lie certain broad concepts which can be
treated as basic. The first amongst these basic concepts is the
210
acceptance of the Veda as the highest authority in religious and

philosophic matters. This concept necessarily implies that all the
systems claim to have drawn their principles from a common.
reservoir of thought enshrined in the Veda. The Hindu teachers
were thus obliged to use the heritage they received from the past
in order to make their views readily understood. The other basic
concept which is common to the six systems of Hindu philosophy
is that "all of them accept the view of the great world rhythm.
Vast periods of creation, maintenance and dissolution follow each
other in endless succession…. It may also be said that all the
systems of Hindu philosophy believe in rebirth and pre-existence.
SOURCE OF HINDU (1) Ancient Sources –(a)Sruti (b)Smriti (c) Digests and
LAWS Commentaries (d) Custom(2) Modern Sources (i) Equity, Justice
and Good Conscience, (ii) Precedent, (iii) Legislation.
(A)SRUTI (What was Struti stands for four Vedas viz,(1) Rig Vedas (2) Yajur Vedas
heard)/ Vedas was (3) Sama Vedas (4) Atharva Vedas alongwith their respective
written after listening Brahmanas . The Brahmanas are like appendics to the vedas
the words of God. Vedas which were added later on.
are called Sruti.
(B)SMRITI (What has In theory the Smritis are based on the memory of the sages who
been remebered) were the repositories of the sacred revelation . The Smritis may
be divided into early Smritis (Dharmasutra) and the later Smritis
(Dharmashastras).
DHARMASUTRA Dharmasutras are mostly written in prose. Dharmasutras are
(800-200 B.C.) mostly bear name of their author. Gautama, Baudhayana,
Apastamba , Vasistha, Vishnu and Harita etc.
Gautama It is oldest Dharmsutras. It deals with Inheritance , Partition and
Stridhan.
Vishnu It deals with criminal law , civil law , marriage ,sonship, adoption
, inheritance, debt and various other topics.
DHARMASHASTRAS They deal with the subject matter in a very systematic manner.
Manu Smriti It was written approximately at 200 B.C.
Yajnavalkya Smriti Approximate date of this is beginning of Christian Era. Several
Commentaries have been written on this Smiriti among them
Vijnaneshwar‘s commentary the Mitakshara is most important.
Narada Smriti 200A.D. As compared to the other sages, Narada was progressive sage. He
confers rights on women to hold and inherit property. He is not as
harsh to sudras as Manu is. He also recognizes that in certain
circumstances a women can leave her husband and take
another.
COMMENTARIES Till the 12th century, the general tendency was to write
(TIKA ) AND commentaries (tika) on a particular smirti, but from 12th century
DIGESTS onward the trend was to write Degests (nibandha) on several
(NIBANNDHA) Smriti and thereby to attempt to synthesise all the topics in the
smritis. In the event a conflict between the ancient text writers
211
and the commentators , the opinion of commentators must be

accepted.
COMMENTARIES (1)Medhatithi (2) Govindraja (3)Kulluka Bhatta
ON MANUSMRITI
COMMENTARIES (1) Visvarupa (2) Vjnaneshwra (Andhra Pradesh-11th
ON YAJNAVALKYA Century) –Mitakshara
SMRITI
REGIONAL (1) South Indian Authories (2) Mithila Authories (3) Benaras
AUTHORIES Authories (4) Bengal Authories- Jimutavahana- Dayabhaga.
Dayabhaga mainly deals with inheritance and partition.
DJS- Dayabhaga+ The term ―Dayabhaga‖ is derived from a similarly named text
Jimutavahana. written by Jimutavahana. The term-, ―Mitakshara‖ is derived
VIM- Vijnaneswara+ from the name of a commentary written by Vijnaneswara, on the
Mitakshara Yajnavalkya Smriti. The Dayabhaga and The Mitakshara are the
two schools of lawthat govern the law of succession of the Hindu
Undivided Family under Indian Law. The Dayabhaga School of
law is observed in Bengal and Assam. In all other parts of India
the Mitakshara School of law is observed. The Mitakshara School
of law is subdivided into the Benares, the Mithila, the
Maharashtra and the Dravida schools.
Dayabhaga Mitakshara
Joint Only male member –Father ,his son, grandson and great-
Family grandson
Principle of Religious
Successi Principle of Propinquity- Principle of propinquity means that
on Efficacy-One who one who is nearer in blood relationship succeeds. Son and
confers more religious daughter would get equal share. But due to 1st limitation daughter
benefit on the deceased would not get any share in presence of son. But this principle is
is entitled to inheritance subject to two limitations (1) Exclusion of female from
in preference to other inheritance (2) Preference of agnate over cognate. It is secular.
who confers less According to this principle Son and daughter would get equal
spiritual benefits. share. But due to 1st limitation daughter would not get any share
Religious benefits is in presence of son.
based on the doctrine of Son‘S Son and Daughter‘s Son would get equal and simultaneous
offering of oblation or share. But Due to 2nd limitation agnate shall be given preference
pindadana to the over cognate. So Daughter‘s Son in presence of Son‘s Son would
deceased. It is not not get any share.
secular.
Law of During life of father, son Doctrine of Son‘s Birth Right
Joint will not get any right in Doctrine of Son‘s Birth Right (son, son‘s son, son‘s son‘s son)
family property. Father is sole means right of son in Joint Family Property by birth. This
owner of property. All Doctrine means that the movement a son is born he acquires an
property devolves imterest in the joint family property which by partition , can be ,
according to inheritance. at any time converted into separate property. In other wards joint
family property does not pass by inheritance but it goes to those
who among the group known as coparceners.
212
Doctrine of survivorship Doctrine of survivorship. According to this rule, In case of birth

is not followed. of son , share decreases and in case of death , share increases.
Father can sale Neither the father nor any other coparcener can ordinarily transfer
property without any the property. Only Karta in certain circumstances can transfer the
restrictions. property.
Custom (1) Custom should be ancient (2) Custom should be continuous.

There are three types (3) Custom should be certain. (4) Custom should be reasonable
of custom- (1) Local (5) Custom should not be immoral (6) Custom should not be
Custom (2) Family opposed to public policy (7) Custom should not be opposed to
custom (3) Caste or law.
Community Custom
Nature of Marriage Hindu marriage has not remained a sacramental marriage and has
Hindu marriage is also not become a contract, though it has semblance of both. It
semblance of sacramenthas a semblance of a contract as consent is of some importance; it
and contract. has a semblance of a sacrament as in most marriage a sacramental
ceremony is still necessary.
CONDITIONS OF Section 5 of the Hindu Marriage Act provides that a marriage
MARRIAGE may be solemnized between any two Hindus, if-
Void Only Three situations (1) Bigamy (2) Degree of Prohibited Relationship
Marriag (3) Sapinda Relationship
e
Voidable Only four situations (1) Impotency (2) Incapacity to contract or mental disorder (3)
Marriag ,when marriage is Consent of petitioner obtained by force or fraud (4) Concealment
e voidable of Pre- marriage pregnancy.
Impotent Marriage is voidableThere are two types of impotency- (1) Physical Impotency (2)
/Eunch Mental Impotency
Physical Ganeshji vs. Hastuben Where the wife on an account of structural malformation of
Impoten vagina was not capable to have normal sexual intercourse. But
cy she underwent surgical operation as a result of which she became
1967 Guj capable of having sexual intercourse. It was held that she was not
impotent.
1974 Laxmi vs. Babulal Wife had no vagina, but by a surgical operation an artificial
Raj. vagina of about 2 1/2‖ was constructed. The Court held that that
did not remove wife‘s impotency. In Ganeshji Case there was
vagina but in this case there was no vagina from the very
beginning.
Mental Jagdish vs. Seela Where immediately after marriage the husband lived for three
Impoten nights and days in the same room with his wife and failed to
cy 1963 consummate the marriage, it was a fair inference that non-
Pun.H.C consummation was due to husband‘ knowing refusal arising out
. of incapacity , nervousness or hysteria.
Barrenness and Barrenness and Sterlity. Marriage is valid.
Sterlity
1967 Guj Prajapati vs. Hastubai
H.C.
213
1971 Shewanti vs. Bhaura Barrenness and Sterlity. Marriage is valid.

M.P. HC
Marriage between
same sex
Britain Corbett vs. Corbett Marriage between same sexes is void ab initio. Sexual
(1970) constitution of an individual is fixed by birth and can‘t be
changed either by the natural development of organs of opposite
sex or medical or surgical means.
Britain Clause ‗C‘ was added Same sex marriage was declared void.
1973 to Section 11 to the
Matrimonial Causes
Act.
PRE-MARRIAGE
PREGNANCY
1965 Mahendra vs. Sushila Wife‘s admission of pre-marriage pregnancy when it is
S.C. established that the petitioner had no access to he prior to
marriage , is sufficient in itself to establish the fact against
her.
India
Section Bigamy Section 11- Void Marriage

5(i)
Section Consent Section 12- Voidable Marriage
5(ii)
Section Minor Section 4. Neither void nor voidable marriage
5(iii)
Section Degree of Prohibited Section 11- Void Marriage
5(iv) relationship
Section Sapindas to each other Section 11- Void Marriage
5(v)
Sec. 5 (i) BIGAMY(Polygamy Two conditions must be fulfilled-(1)
and Polyandry) &
Monogamy
Sec. 5 (i) Monogamy Monogamy means that one is permitted to have only wife or
Permits one husband at a time.
Sec. 5 (i) Bigamy includes both Polygamy permits a male to have more than one wife at a time.
does not Polygamy and For example Lord Ram and Lord Krishna. Polyandry permits the
permit Poyandry. Section 11- female to have more than one husband at a time. For example
Bigamous marriage as a Goddess Draupadi.
void. Section 17- It is
punishable under
sections 494 & 495 of
IPC.
1965 Bhaurao Shankar Essential ceremonies of Hindu Marriage are; (1) Invocation
S.C. Lokhande vs. State of before the sacred fire and (2) Saptapadi
Justice Maharashtra The The word ‗solemnize‘ means, in connection with a marriage, 'to
214
Dayal, marriage between two celebrate the marriage with proper ceremonies and in due form'. It
Raghuba Hindus is void in view follows, therefore, that unless the marriage is 'celebrated or
r of s. 17 if two performed with proper ceremonies and due from' it cannot be said
conditions are satisfied : to be ‗solemnized‘. It is therefore essential, for the purpose of s.
(i) the marriage is 17 of the Act, that the marriage to which s. 494 I.P.C. applies on
solemnized after the account of the provisions of the Act, should have been celebrated
commencement of the with proper ceremonies and in due form. Merely going through
Act;(ii) at the date of certain ceremonies with the intention that the parties be taken to
such marriage, either be married, will not make them ceremonies Prescribed by law or
party had a spouse approved by any established custom.
living.He was not liable
for bigamy
1969 Dr. N.A.Mukerji vs. A physician was prosecuted for bigamy. It was alleged that
All.H.C. State three ceremonies of marriage were performed. The Court
held that performance of such mock ceremonies of marriage
does not constitute valid ceremonies, and therefore the
prosecution for bigamy failed. There mere intention of parties
however serious , will not make them husband and wife and
the accused will escape prosecution even if he deliberately
performed a defective ceremony.
1995 Sarla Mudgal vs. UOI Conversion to Islam and marrying again would not, by itself
dissolve the Hindu marriage under the Hindu Marriage Act,
1955.Conversion only provides the grounds for divorce under
section 13.
2000 Lily Thomas vs. Union When a non-Muslim man, married according to the religious
of India rites stipulating monogamy, renounces his religion , converts
to Islam and solemnizes a second marriage according rites
without divorcing his first wife. Supreme Court held that
husband is guilty of bigamy.
Sec. 5 (ii) CONSENT Section 12 Voidable Marriage
Sec. 5(iii) AGE

1977 P.V.Venkataramana The Court held that any marriage between minors aged 13
Andhra vs. State and 9 is perfectly valid. Reason (1)Section 4 (2) Factum Valet
Pradesh ( A fact can notaltered by a hundreds texts.
H.C.
Prohibition Of Child The object of the Act is to prohibit solemnization of child
Marriage Act, 2006. It marriage and connected and incidental matters. To ensure
came into force on 1st that child marriage is eradicated from within the society, the
November 2007. Such Government of India enacted Prevention of Child marriage Act
marriage is voidable at 2006 by replacing the earlier legislation of Child
the option of the Marriage Restraint Act 1929.
Contracting party to
marriage. For male-
21Years, Female 18
Years. Either party may
215
be below the prescribed

age.
Sec. 5(iv) DEGREE OF Section 3 (g)(iii) ―Two persons are said to be within the
PROHIBITED degree of prohibited relationship‖-(1) Lineal Ascendant –if
RELATIONSHIP one is lineal ascendant of the other (2) Wife or husband –If one
was the wife or husband of a lineal ascendant or descendant of
the other ,or (3) Wife of brother-If one was the wife of brother
or father‘s or mother‘s brother (Paternal and maternal uncle) or
grandfather‘s or grandmother‘s brother of the other , or, (4) if the
two are (i) brother and sister,
(ii) uncle and niece,(iii)aunt and nephew (iv) Children of
brother and sister or of two brothers or two sisters
UGC201 Void Marriage A marries B the widow of elder brother. The marriage is void.
3J Section 3(g)(iii) , Section 5 (iv) and Section 11of Hindu Marriage
Act, 1955.
Sec. 5(v)SAPINDAS
RELATIONSHIIP
UGC J A marriage solemnized Valid, if the custom or usage governing each of them permits a
2017 between any two Hindus marriage between the two.
who are Sapindas of
each other shall be
Meaning of Exogamy According to the rule of exogamy, a person is not permitted to
marry within the same tribe. The Shastric prohibition of
marrying within the same gotra or pravara or sapindas falls
under this head.
UGC Principle of Exogamy Rules relating to Sapinda Relationship is based on Principle
2007D of Exogamy
Meaning of Endogamy Forbidding a man to marry any women who is not his
kindred
Principle of Endogamy Prohibition on inter-caste and inter-sub-caste marriages,
relates to the Principle of Endogamy.
Anuloma Male of supe rior Female of inferior caste (Kshatriya)
Marriag Caste
e (Brahmin)
Pratilom Female of superior Male of inferior caste (Vaishya)
a Caste (Brahmin)
Marriag
e
UGC201 SECTION 7 A Hindu marriage may be solemnized in accordance with the
5J customary rites and ceremonies of either party (husband or wife)
thereto.
Section 8
UGC Seema vs. Ashwani Registration of marriage should be compulsory.
2008D Kumar
216
SECTION 9 RESTITUTION OF CONJUGAL RIGHTS

1983 1st T.Sareetha vs. Section 9 is unconstitutional. Reason-It is violation of right to
July T.V.Subbaih. privacy and right to life enshrined in Article 21 of
A.P.H.C. Constitution of India.
Justice P ―decree for restitution of conjugal rights constitutes the
. grossest from of violation of an individual's right to
Choudar privacy .The decree for restitution of conjugal rights denies
y the woman her free choice whether when and how her body
is to become the vehicle for the procreation of another human
being .A decree for restitution of conjugal rights deprives a
woman of control over her choice as to when and by whom the
various parts of her body should be allowed to be sensed. It
must be said, that the woman loses her control over her most
intimate decisions clearly, therefore, the right to privacy
guaranteed by Art. 21 of our Constitution is flagrantly violated
by a decree of restitution of conjugal rights.
15 Harvinder Kaur vs. ―It appears to me that the wife deliberately broke up the
Novembe Harmander matrimonial home and brought to an end the matrimonial life, so
Singh
r, 1983 far as she was able to bring those results about. The breaker-up of
Choudhry Section 9 is
Avadh Constitutional. the home is the wife. She has disrupted the matrimonial home
Behari without sufficient cause. There is withdrawal not only from'
Rohatgi, intercourse but from cohabitation without just cause.‖ the learned
J judge of the Delhi High Court expressed the view that Section
9 of the said Act was not violative of Articles 14 and 21 of the
Constitution. The learned judge noted that the object of restitution
decree was to bring about cohabitation between the estranged
parties so that they could live together in the matrimonial home in
amity.
UGC J Smt. Saroj Rani vs. Constitutionality of section 9 of HMA, 1955. It serves a social
2017 Sudarshan Kumar purpose as an aid to the prevention of break-up of marriage. The
8August Chadha remedy of restitution aimed at cohabitation and consortium and
1984 not merely at sexual intercourse. The learned judge expressed the
Sabyasac view that the restitution decree did not enforce sexual intercourse.
hi It was a fallacy to hold that the restitution of conjugal rights
Mukharj constituted "the starkest form of governmental invasion" of
i, (J) "marital privacy".
S.C.
217
Matrimonial Home
1977 Kailashwati vs. The Court held, ―Concept of marriage cannot be reduced to a
Pun. Ayodhya Prakash ‗weekend marriage‘. The right to set up the matrimonial home is
H.C. (Conservative Veiws.) that of the husband, and the wife can‘t stay apart against his
wishes.‖
1978 Swaraj Garg vs. K.M. There is no warrant in Hindu law to regard the Hindu wife as
Delhi Garg. having no say in choosing the place of matrimonial home. Art.
H.C. Progressive Views 14 of the Constitution guarantees equality before law and equal
Justice protection of the law to the husband and the wife. Any law which
V. would give the exclusive right to the husband to decide upon the
place of the matrimonial home without considering the merits of
Deshpan the claim of the wife would be contrary to Art. 14 and
e unconstitutional for that reason.
The basic principles on which the location of the matrimonial
home is to be determined by the husband and has wife are based
on common convenience and benefit of the parties.
SECTION 10 JUDICIAL SEPARATION

GROUNDS OF J.S. For husband –Nine grounds (section 13 (1).)
For wife-Thirteen grounds (section 13 (1) and section 13(2).
UGC J GROUNDS OF J.S. (1) Extra- marital sex by wife- section 13 (1)(a)
2017 (2) Conversion of wife to a non-Hindu religion13 (1) (b.)
UGC J NO GROUNDS OF (1) Wife‘s pre-marriage pregnancy. This ground has not been
2017 J.S. mentioned under section 13(1). This is a ground of voidable
marriage mentioned under section 12(1) (d). (2) Non
consummation of marriage owing to impotence of wife- Section
12(1) (a).
THEORIES OF 1) Fault theory-(a) Grounds on which either party may obtain
DIVORCE divorce, and, (b) Grounds on which wife alone may obtain
divorce (2) Breakdown grounds (3) Divorce by mutual consent,
(4) Customary Divorce (5) Divorce under special laws.
1 Customary Divorce Section 29 (2) Grounds which were available before the
Theory commencement of the Hindu Marriage Act,1955
2 Fault or Guilty Theory Since commencement of Hindu Marriage Act,1955 Section 13
(1) and (2)
3 Breakdown Theory Inserted in 1964 (Section 13(1-A)
4 Mutual Consent Inserted in 1976 (Section 13B)
Theory
1 For both parties (1) Section 13(1) Nine grounds(2) Section 13 (1-A) Two
( Husband &Wife) grounds (3) Mutual Consent Section 13 B. Total 12 grounds
2 (UGC Only for Wife Section 13 (2) Four Grounds
J 2017) (1) Pre-Act bigamy of the husband,
(2) Husband is guilty of rape, sodomy & bestiality,
(3) Maintenance order in favour of wife (4)Repudiation of
marriage (Option of Puberty)
Adultery
218
Differen Criminal Law Hindu Law

ce
Liability Only man is liable. Adultery may be committed either by husband or wife.
of
Person
Knowled The person (Offender-in Knowledge of Co-respondent is not necessary. If the
ge civil cases co- respondent had intercourse with the correspondent with the
respondent) must have full knowledge that he or she was not his or her wife or
knowledge or reason to husband that is enough.
believe that the women
is wife of another
person.
Burden Preponderance of probabilities is sufficient. Circumstantial
of Proof evidence is sufficient.
LEADING CASES
1921 Oxford vs. Oxford A wife who allows her to be artificially inseminated with semen
provided by a person other than her husband is not guilty of
adultery.
1966 Subbaramma vs. Actual penetration is not necessary. ― The unwritten taboos and
Saraswathi rules of social morality in this country and particularly in village
after midnight in her areas must necessarily be taken into account . if unrelated person
bedroom in actual is found alone with a young wife , after midnight in her
physical juxtaposition bedroom in actual physical juxtaposition (nearness of objects)
unless there is some explanation forthcoming for this , which is
compatible with an innocent interpretation, only inference that a
court of law can draw must be that the two were committing an
act of adultery together.
2005 Rajesh Kumar Singh Rape cannot be ground of divorce. Sexual intercourse has to be
All.H.C. vs. Rekha Singh consensual for it to be a ground of divorce.
2015 Dipanwita Roy vs. DNA test of the child was permitted to prove adultery but by
S.C. Ronobroto Roy sounding caution that such test should be avoided as they put
child‘s legitimacy at peril.
CRUELTY Section
13(1)(i-a)
DEFINITIONS
1897 Russel vs. Russel ―Conduct of such a character as to have caused danger to life,
UGC J limb, or health, bodily or mental , or as to give rise to a
2017 reasonable apprehension of such danger.‖
2006 Naveen Kohli vs. Neelu The Supreme Court observed that the conduct complained of
S.C. Kohli should be grave and weighty.It should be such that no
reasonable person should tolerate it .It should not be ordinary
wear and tear of marriage.
INTENTION TO BE
CRUEL IS NOT
MATEERIAL
1963 William Vs. Villiam Intention as a element of cruelty was finally rejected.
219
Husband was insane.

on 8 Trimbak Narayan The husband tried to strangulate wife‘s brother on one occasion
April, Bhagwat vs. Kumudini and on another occasion he ryounger son . It was established that
1965 Trimbak Bhagawat on both the occasion the husband acted in a fit of insanity.
Bom.H. Justice Naik, ―The conduct of the husband in this case is such as
C. to amount to cruelty, even in the absence of an intention to be
cruel. Insanity therefore, should not bar the relief claimed by the
wife. On the facts of this case, the schizophrenia from which the
husband has a predilection to suffer periodically is no good
defence to the plea of cruelty put forward on behalf of the wife.‖
2009 Suman Kapoor vs. In cruelty, mens rea is not important.
Sudhir Kapoor
CLASSIFICATION There are two types of cruelty, namely, (1) Physical Cruelty,
OF CRUELTY (2) Mental cruelty
1970 Jyotish Chandra vs. This was a physical cruelty coupled with mental cruelty.
Cal. Meena
H.C.
(1) Physical Cruelty,
1983 Ashok vs . Santosh Pulling of flaccid penis of her husband would be amount of
Delhi cruelty.
H.C.
(2) Mental cruelty
19 Narayan Ganesh Chandrachud, J. ―Where an allegation of cruelty is made, the
March, Dastane vs. Sucheta enquiry has to be "... whether the conduct charged as cruelty is of
1975 Narayan Dastane. She such a character as to cause in the mind of the petitioner a
S.C. tore mangal sutra. She reasonable apprehension that it will be harmful or injurious for
used to thrash her child him to live with the respondent". Divorce was granted.
mercilessly even when
he had high fever. I
want to see the
ruination of the whole
Dastane dynasty,.
19 V. Bhagat vs D. Bhagat The husband sued for divorce on the ground that the wife is guilty
Novemb Mental cruelty was of adulterous course of life. The wife not only denied the
er, defined. allegation she attributed the allegation to lack of mental
1993S.C. equilibrium of the husband. The husband then amended his
Jeevan petition; he alleged a new ground for divorce viz., mental cruelty.
Reddy, According to him, the allegations made in the written statement
B.P. (J) per se constitute cruelty which entitle him straight away to a
divorce without going into the original allegation of
adultery. Reddy, B.P. (J) ―Mental cruelty in Section 13(1) (i-a)
can broadly be defined as that conduct which inflicts upon the
other party such mental pain and suffering as would make it not
possible for that party to live with the other. In other words,
mental cruelty must be of such a nature that the parties cannot
reasonably be expected to live together.‖
220
Irretrievable
breakdown of
marriage amounts to
cruelty
1995 Romesh Chander vs. The Supreme Court said that this marriage was dead
Article Savitri 25 years had physically and emotionally and continuance of the alliance for
142 elapsed since the namesake would be prolonging agony and affliction. The
R.M. SA appellant-husband a Supreme Court passed the decree of divorce.
HAI, (J) sanitary inspector and Considering the facts and circumstances of this case we, in
respondent a school exercise of power under Article 142 of the Constitution of India,
teacher had enjoyed direct that the marriage between appellant and the respondent
the company of each shall stand dissolved subject to the appellant transferring the
other. house in the name of his wife.
2005 A. Jaya Chandra vs. Irretrievable breakdown of marriage is though not a ground
Aneel Kumar for dissolution of marriage , but in extreme cases , to do
complete justice and shorten the agony of parties decree of
divorce may be passed.
DESERTATION(I- 13(1)Explanation. In this sub-section, the expression desertion
b)….. has deserted the means the desertion of the petitioner by the other party to the
petitioner for a marriage without reasonable cause and without the consent or
continuous period of not against the wish of such party, and includes the wilful neglect of
less than two years the petitioner by the other party to the marriage, and its
immediately preceding grammatical variations and cognate expressions shall be
the presentation of the construed accordingly.
petition;
THREE KINDS OF (1) Actual Desertion (2) Constructive Dissertation (3) Wilful
DESERTION neglect
(1) Actual Desertion Both must be present-(1) The factum of separation (2)animus
deserdendi- intention to desert
19 Bipin Chander The parties were married in 1942. In 1947 the appellant left for Engla
October, Jaisinghbhai Shah vs. her father's place on May 24, 1947, on the pretext of the
1956 Prabhawati marriage of her cousin which was to take place in June. On
S.C. Justice B P Sinha ―For July 15, 1947, the appellant sent a notice to the respondent
Justice B the offence of desertion, through his solicitor in which after mentioning the fact that she
P Sinha so far as the deserting had, left against his wishes stated that he did not desire to keep
spouse is concerned, her any' longer under his care and protection, and
two essential conditions desired her to send the minor son to him. On July 4, 1951, the
must be there., namely, appellant instituted the suit for divorce under s. 3(1)(d) of the
(1) the factum of Bombay Hindu Divorce Act,1947, on the ground that the
separation, and (2) the respondent had been in desertion ever since May 24, 1947,
intention to bring without reasonable cause and without his consent and against his
cohabitation will for a period of over four years. after the solicitor's notice
permanently to an end dated July 15, 1947, was received by the respondent,
(animus deserendi ). attempts were made by her father and his relations to bring about
Similarly two elements reconciliation between the parties but they failed owing to the
are essential so far as the attitude of the appellant. S.C.Held that, on the facts, though
221
deserted spouse is con- the initial fault lay with the respondent, her leavingher marital
cerned: (1) the absence home was not actuated by any animus to desert her husband but as
of consent, and (2) statutory period, and the appellant's case must fail.
absence of conduct In a suit for divorce on the ground of desertion the burden is on
giving reasonable cause the plaintiff to prove that the deserting spouse has been in
to the spouse leaving the desertion throughout the statutory period .
matrimonial home to
form the necessary
intention aforesaid.‖ if a
spouse abandons the
other in a state of
temporary passions, for
example, anger or
disgust without
intending permanently
to cease cohabitation, it
will not amount to
desertion.
14 Lachman Utamchand An offer to return to the matrimonial home after sometime,
August, Kiriplani vs Meena though desertion had started, if genuine and sincere and
1963 Alias Mota represented his or her true feelings and intention, would bring
S.C. Her offer to return was to an end the desertion because thereafter the animus deserendi
not sincere and in reality would be' lacking, though the factum of separation might
there was no intention to continue; but on the other hand, if the offer was not sincere and
return. There was there was in reality no intention to return, the mere fact that
satisfactory proof that letters were written expressing such an intention would not
besides the factum of interrupt the desertion from continuing.
desertion , there was FACTS- The parties were married in 1946 at Hyderabad in Sind (now i
also the animus respondent along with her father went abroad to the Far Eastern
deserdendi at the time countries, for the purpose of recouping her health,
when she left the according to her. Before goin abroad the
husband‘s houseand the respondent had to go Bombay for getting the passport and go
requisite animus she would soon come back to his place. In April, 1956, the
continued for the respondent returned to India but she did not go to the
duration of two years appellant's home nor did meet him.
before the presentation
of petition.
2005 Geeta Jagdish The wife had deserted the husband after 7 months of the
S.C. Mangtani vs. Jagdish marriage on the ground that he had insufficient income. She
Mangtani started living with her parents and gave birth to a child. She
made no attempts to rejoin the husband and continued with
her teaching job. She was aware of the income status of her
husband before marriage. Under the circumstances, desertion
on her part stand proved.
(2)Constructive Desertation is not withdrawn from place but from a state of
Dissertation things.
222
1970 Jyotish Chandra Vs. The parties were married on 21st January, 1945, under the
After Meera provision of the Special Marriage Act (Act III of 1872). It
returnin Wife applied for divorce appears that the age of the wife at the time of marriage was about
g from decree. wife was entitled 21 years while the age of the husband then was 34 years. After
England to a decree for divorce marriage the wife came to reside at 80/D, Lansdown Road,
husband on the ground of cruelty Ballygunge, being the place of husband's residence. Within a few
became and desertion. days, the wife found the husband cold and indifferent and
more It is obvious that in the sexually abnormal and perverse. Shortly thereafter, the husband
cold. context of her suffering left for United Kingdom on business for about three months and
and loneliness of a the wife became busy with her M. A. examination which was
frustrated married life, held in August, 1945. During the period from marriage till
the husband created a September, 1945, except the sojourn in foreign land, the wife
situation in his house found the husband cold and indifferent towards her and the
that it was impossible husband would flare up on occasional slight protest made by the
for the wife to stay there wife at his said coldness and indifference. The wife sailed for
longer. The husband, England in August, 1948, and got herself admitted in the London
thus forcing the wife by School of Economics for her Ph. D. Degree in geography. She
his conduct to leave the stayed in the United Kingdom up to December, 1951 throughout
matrimonial home, except two visits in India. During the visits the wife found the
became himself really husband more cruel, apathetic, negligent and cold and even her
guilty of desertion, even letters from England to the husband were found unopened in his
though it is the wife who desk. At this the husband became mad with rage and struck the
had in fact deserted the wife with a cricket umpire's stick which he had carried with him
house. and when the wife's father and sister tried to prevent the stick
being used against the wife, they were also struck by him
repeatedly.
2002 Savitri Pandey vs. "Desertion", for the purpose of seeking divorce under the Act,
S.C. Prem Chand Pandey means the intentional permanent forsaking and abandonment of
Desertion means one spouse by the other without that other's consent and without
withdrawing from reasonable cause. In other words it is a total repudiation of the
matrimonial obligations obligations of marriage. Desertion is not the withdrawal from a
and not withdrawal from place but from a state of things. Desertion, therefore, means
place.If a party withdrawing from the matrimonial obligations, i.e., not permitting
withdraws from or allowing and facilitating the cohabitation between the parties.
cohabitation, it is he /
she who is guilty of
desertion , despite the
fact that he/she
continues to live in the
matrimonial home.
TERMINATION OF (1) Resumption of cohabitation.(2) Resumption ofmarital
DESERTATION intercource (3) Supervening animus revertendi or offer of
reconciliation
UNIFORM CIVIL
CODE
UGC J Jorden Diengdeh vs. Uniform Civil Code. Time has now come for the intervention
223
2017 , S.S.Chopra of the legislature to provide for a uniform code of marriage and
2015,10 divorce as envisaged by Article 44 and to provide by law for a
May, way out of the unhappy situations in which couples find
1985 themselves in. It is necessary to introduce irretrievably break-
down of marriage, and mutual consent as grounds of divorce in
all cases.
UGC Sarla Mudgal vs. UOI
2015
1995
UGC Danial Latif vs.UOI
2015
2001
UGC John Vallammatton
2015 vs. UOI
2003
MAINTENANCE
UGC201 Chand Dhawan vs. Wife of void marriage is also entitled for maintenance.
3D Jawaharlal Dhawan
Doubt (1999)S.C
2005 Rameshchandra It was held that despite the marriage being null and void, the wife
S.C. Rampratapji Daga vs. is entitled to claim maintenance from her husband. The Supreme
Leading Rameshwari Court held
Case Rameschandra Daga
1997 Noor Saba Khatoon vs. Maintenance under Cr.P.C.
Mohd Quasim
MISCELLANEOUS
1995 Romesh Chander vs. Supreme Court, ―We, in exercise of power under Article 142 of
Savitri the Constitution of India, direct that the marriage between
appellant and the respondent shall stand dissolved subject to the
appellant transferring the house in the name of his wife. The
house shall be transferred within four months from today.‖
ADMINISTRATIVE LAW
1 IMPORTANT QUOTATION
UPPCS 1996 Prof. H.W.R. Wade ―Administrative law is a potent weapon for bringing
about harmony between Powers and justice.‖
UPPCS 1997 Vanderbilt ―Administrative law is the most outstanding legal
development in twentieth century.‖
First Organizer of Rule of law is Sir Edward Coke
(1552-1634). Later on it was developed by Prof.
A.V.Dicey(1835-1922).
UGCJ.2015 Administrative law is primarily concern with (1) Rule-
224
making (2) Rule-application (3) Quasi-Judicial action. It is

not concern with private law.
2 DEFINITIONS
(Bihar J.2016, Ivor Jenning (OPD) Administrative is the law relating to the administration. It
UGC determines the organization, powers and duties of the
Dec.2015) administrative authorities.
(UPHESC K.C.Davis (PPJ) ―Administrative Law is the law concerning the powers and
2014, UGC procedures of administrative agencies, including especially
DEC.2013) the law governing the judicial review of administrative
action.‖
Wade (Control) ―Administrative Law is the law relating to the control of
governmental power.‖
(UGC JUNE Wade ―Administrative law is concerned with the operation and
2014) control of the powers of administrative authorities with
emphasis on functions rather than on structure.‖
Garner ― Administrative laws are those rules which are recognized
by the courts as law and which relate to and regulate the
administration of Government‖
Griffith & Street ―Main object of the Administrative law is the operation
(Object of AL) and control of administrative authorities.‖
3 SYSTEM OF DROIT ADMINISTRATION
System of Droit In French system, there are two types of law, namely, one
Administration law for administrative dealings and another law for private
persons. System of Droit administration is based on power
of separation. The most original aspects of the French
Administrative Law is the independence of the
administration from judicial control.
UPPPCS1994, Droit The concept of Droit Administrative was first developed in
1995 Administration France. Napoleon Bonapart was the founder of the Droit
Administration.
UPPPCS1995 System of duel System of duel judicature consisting of civil courts and
judicature in administrative courts .
France.
4 Miscellaneous
UGC Jan,2015 Ram Jawaya Doctrine of Separation of powers‘

Kapur vs. State of
Punjab
UGC Jan,2015 Maneka Gandhi vs. Doctrine of Post Decisional Hearing.
UOI
UGC Jan,2015 Vineet Narain vs. Doctrine of Public Accountibility
UOI
UGC Jan,2015 UOI vs. Hindustan Doctrine of Legitimate Expectation
Development
Corporation
5 NATURAL JUSTICE
225
UPPCS(1994) Ridge vs. Baldwin Magna- carta of Natural justice. Lord Reid. First time
,1964 PNJ was applied in the field of administrative law.
UGC Dec.2014 UOI vs. P.K.Roy, There is no rigid formula for principles of Naturals
1968 Justice. Justice Ramaswami ―..The extent and application of
the doctrine of natural justice cannot be imprisoned within
the strait jacket of a rigid formula….‖
UGC Dec.2014 Secy. To Meaning of Baisness-J. Mukharjee ―A predisposition to
Govt.Transport decide for or against one party, without proper regards to
Dept. vs. the true merits of the dispute is bias.‖
Munuswamy,1988
Egerton vs. Lord Lord Coke ―No man shall be judge in his own case‖
Derby (1613)
UGC Dec.2014 R vs. Sussex Lord Hewart ―Justice should not only be done, but
Justices , (1924) KB manifestly and undoubtedly be seen to be done.‖
UGC Dec.2014 R.S. Dass vs. UOI Choice of application of rules of natural justice
UGC Dec.2014 Gullappalli Official Bias
Nageswara Rao vs.
State of A.P.(
Gullappalli-2) 1959
UGC-2015 Gullappalli One who decides must hear.
Nageswara Rao vs.
A.P.S.R.T.C.
( Gullappalli-1)
UGC Dec.2014 K.L.Tripathi vs. Right of Cross-examination
SBI
UGC Dec.2014 General Medical Effect of Violation of PNJ-Lord Write, ― If the principles
Council vs. of Natural justice are violated in respect of any decision , it
Spackman is, indeed , immaterial whether the same decision would
have been arrived at in the absence of the departure from
the essential principles of natural justice . The decision
must be declared to be no decision.‖
UGC Dec.2014 N.Kalindi vs. Tata Right of representation by a lawyers is not considered to be
Locomotives a part of natural justice and at cannot be claimed as of
right.
PRINCIPLES OF (1) Nemo debet esse judex propria causa ( No one shall be
NATURAL judge in his own case ) (2)Audi alteram partem (rule of fair
JUSTICE hearing) (3) Nemo judex in causa sua (rule against bias)-
Notice , Right to cross-examination , Right to legal
representation ,Reasoned Decision (Speaking Order)
QUESTION WHETHER THE PNJ IS APPLICABLE TO
ADMINISTRATIVE LAW
NO Franklin vs. Lord Thankerton – PNJ is applicable only to judicial and
minister of Town quasi judicial matters rather than administrative matters.
and Country
Planning (1947)
Kishan Chand vs. J. Wanchoo, ― Compulsion of hearing before passing the
226
Comnr. order implied in the maxim ‗audi alteram partem‘ applies

of
Police(1961) only to judicial and quasi -judicial proceeding.‖
YES Ridge vs. Baldwin Magna- carta of Natural justice .Lord Reid. First time
(14 March , 1963) PNJ was applied in the field of administrative law.
State of Orissa vs.PNJ was applied in administrative matters but in limited
Binapanni (1967) way. Justice Shah, ―It is true that order is administrative in
character, but even an administrative order which involves
civil consequences…. Must be made consistently with the
rules of natural justice…‖
UGC-2015 A.K. Kraipak vs. It is historical case because first time PNJ was applied in
UOI (29April 1969) administrative matters without any restrictions. Duty to
act fairly in administrative functions al well.
Maneka Gandhi Justice Kailasham ―The frontier between judicial or quasi-
case(1978) judicial determination on the one hand and executive on the
other has become blurred . The rigid view that principles of
natural justice applied only to judicial and quasi- judicial act
and not to administrative acts no longer holds the field.‖
UPPCS1994 A.K. Kraipak v.Dividing line between an administrative power and

Union of India, quasi judicial power is quite thin and is being gradually
1969 (Personal
obliterated. There are three parts of Principle of Natural
Biasness) Justice (1)Nemo debet esse judex propria causa ( No one
shal be judge in his own case ) (2) Audi alteram partem
(rule of fair hearing) (3) Third is newly developed - Nemo
judex in causa sua (rule against bias) . Quasi judicial
enquiries must be held in good faith, without bias and not
arbitrarily or unreasonably. It was not necessary to establish
but it was suuficient to invalidate selection procees if it
could be shown that there was reasonable likelihood of bias.
PNJ AND A.K. Kraipak v. Justice Hegde, ― The aim of the rules natural justice is to
STATUTARY Union of India, secure justice or put it negatively to prevent miscarriage of
PROVISIONS 1969 (Personal justice . These rules can operate only in areas not covered
Biasness) by any law validly made . In other words they do not
supplant the law of the land but supplement it.‖
MEANING OF
BAISNESS
UGC Dec.2014 Secy. To Govt. Meaning of Baisness-J. Mukharjee ―A predisposition to
Transport Dept. vs. decide for or against one party, without proper regards to
Munuswamy,1988 the true merits of the dispute is bias.‖
KIND OF (1) Pecuniary Bias (2) Personal Bias(3) Official Bias(4)
BIASNESS Subject-matter bias
PERSONAL BIAS A judge may be a relative, friend, or business associate with
party. He may have personal grudge , enmity or grievance.
R. vs. A magistrate who was beaten by accused was held
Handley(1921) disqualify from hearing a case filed against an accused.
UGC Jan,2017 Personal Bias Manak Lal Vs. Dr.Prem Chand
227
Manak Lal Vs. A complaint was filed by A against B, an advocate for an

Dr.Prem alleged act of misconduct . Displinary Committee was
Chand(1957) constituted and Cahairperson of that Committee had already
represented a case on behalf of A. The Court held that even
though Chairperson had forgot everything after along time ,
but there was likelihood of biasness. There was no need of
actual biasness.
UPHESC 2014 Mineral There was political rivalry between M and the Minister
Development who had cancelled the licence of M . A criminal case was
Corprn. Ltd vs. also filed by the Minister against M. It was held that there
State of was a personal bias againt M and the Minister was
Bihar(1960) disqualified for taking action.
Meenglass Tea Manager conducted an inquiry against a workman for the
Estate vs. allegation that he had beaten the manager. It was held that
Workmen(1963) inquiry was vitiated.
A.K. Kraipak vs. One N was a candidate for selection to the IFS(Indian Forest
UOI (29April 1969) Service) and was also a members of the Selection Board.
Court held that no one can be a judge in his own case.
LEADING State of U.P. vs. Departmental inquiry was held against A by B. As one of
CASE Mohd. Nooh (1958) the witness against A turned hostile . Then B left the inquiry
and gave evidence against A, resumed to complete the
inquiry and passed an order of dismissal. S.C. held that PNJ
has been violated.
LEADING Rattan Lal vs. Principle of Mohd. Nooh case was followed. X was a
CASE Managing witness as well as one of the three members of the Inquiry
Committee (1963) Committee against A. A was dismissed. S.C. held that
proceeding was vitiated because of prejudice of one of the
members of the Committee.
PECUNIARY
BIAS
Griffith and Street ―A pecuniary interest, however slight, will disqualify, even
though it is not proved that the decision is in any way
affected.‖
185 2Leading Dimes vs. Grant 1852. It is a leading case on pecuniary bias.
Case Junction Canal
(Mainly related Manak Lal Vs. Justice Gajendragadkar, ―It is obvious that pecuniary
to Personal Dr.Prem interest , however small it may be in a subject matter of
biasness) Chand(1957) proceedings, would wholly disqualify a member from acting
as a judge.‖
UGC Jan,2017 Jeejeebhoy vs. Pecuniary Bias. Chief Justice Gajendragadkar,
Collector, 1965. reconstituted the Bench on objection being taken on behalf
CJI had pecuniary of the interveners in Court on the ground the Chief Justice
interest. (Gajendragadkar), who was the member of the Bench was
also a member of the cooperative society for which the
disputed land had been acquired.
Mohapatra &Co. Some of the members of the Committee set of the selecting
228
vs.State of books for educational institutions were themselves authors

Orissa(1984) whose books were to be considered for selection. It was
held that possibility of biasness could not be ruled out.
Justice Madon observed, ―It is not the actual bias in favour
of the author-member that is material, but the possibility of
such bias.‖
Subject-Matter
Bias
UGC Jan,2017 Subject-Matter G. Nageswara Rao vs. A.P.S.R.T.C. ( Gullapalli Nageswara
Bias Rao vs. A.P.S.R.T.C.)( Gullapalli 1st Case) 1958
Gullapalli 1st G. Nageswara Rao The petitioners was carrying on motor transport business .
Case Secretary vs. A.P.S.R.T.C. The Andhra Pradesh Transport Undertaking published a
and Chief 05Nov.1958 scheme for nationalization of motor transport in State and
Minister invited an objections. The objection filed by the petitioners
were heard by the Secretary and thereafter scheme was
approved by the Chief Minister. Supreme Court accepted
that there was biasness of subject matter because the official
who heard the objection was ‗in substance‘ one of the
parties to the dispute and hence PNJ were violated.
Gullapalli 2nd Gullapalli Hearing was done by Minister rather than by Secretary. The
Case. Only Nageswara Rao vs. Court held that proceeding was not vitiated as the
Minister State of Secretary was the part of the department but the Minister
A.P.21Aug.1959 was only primarily responsible for the disposal of the
business pertaining to that department.
DEPARTMENTAL
BIAS
UGC Jan,2017 Departmental Bias Krishna Bus Service (P)Ltd. Vs. State of Haryana
Krishna Bus Legality and validity of the notification issued by the
Service (P)Ltd. Vs. State Government conferring the powers of Deputy
State of Superintendent of Police on the General Manager
Haryana(1985) Haryana Roadways was challenged by private operators
of motor vehicles. Supreme Court quashed the
notification on the ground of conflict of interest.
AUDI ALTERAM (1) Notice (2) Hearing
PARTEM
NOTICE R. Vs. University of Dr. Bentley was deprived of his degree by the Cambridge
Cambridge (1723) University on account of his alleged misconduct without
giving any notice or hearing of opportunity. The Court of
King‘s Bench declared the decision null and void.
HEARING Ridge vs. Baldwin Magna carta of PNJ. Chief Constable was dismissed without
giving an opportunity of hearing. The Court held that
dismissal was illegal.
Maneka Gandhi vs. In exceptional cases post decisional hearing was allowed.
UOI 1978
Olga Tellis vs. In case of enabling statutory provisions , law must be
BMC(1985) followed according to PNJ.
229
Maharashtra State Candidate would not be allowed to participate in evaluation

Board of Secondary of answersheets. Mathews, J, ―It is not expedient to extend
and H.S.Education the horizon of natural justice involved in the audi alteram
vs. Paritosh(1984) partem relu to the twilight zone of mere expectation ,
however great they may be.‖
UGC-2016 J Hira Nath Mishra Right of Cross Examination (Nude entry of boy student
v. Principal, in girls hostel in night). Principle of natural justice can be
Rajendra Medical exempted for the security of girls students and girls could be
College, (1973) testified in the absence of miscreants.
Right of Legal J.K. Aggarwal v. Right of Legal Representation
Representation Haryana Seeds
Development
Corpn. Ltd. , (1991)
Bharat Petroleum Representation of an employee in disciplinary
Corpn. Ltd. v. proceeding through another employee
Maharashtra
General Kamgar
Union, (1999)
Right of A.K Roy vs UOI Supreme Court denied representation through lawyer ,
‗friend‘ 1982 however held that the detenue had right to be assisted by
friend.
Reasoned M.P.Industries vs. Justice Subba Rao held that reason of the decision must be
Decision UOI1966 mentioned by which arbitrary power may be curtailed.
S.N. Mukherjee vs. Supreme Court held, ―Except in the cases where the
UOI(1990) requirement of recording reasons has been dispensed with
expressly or by necessary implication, an administrative
authority exercising judicial or quasi – judicial power must
record reasons in support of their decisions. The
considerations for recording reasons are: (i) such decisions
are subject to the appellate jurisdiction of the Supreme court
under Article 136 as well as supervisory jurisdiction of High
Courts under Article 227 (ii) it guarantees consideration by
the adjudicating authority;
(iii) it introduces clarity in the decisions, and
(iv) it minimizes chances of arbitrariness and ensures
fairness in the decision- making process.
PRE AND POST-DECISIONAL HEARING.
UPPCS1996 Maneka Gandhi v. First case on Post Decisional Hearing. The Court laid
Union of India down that where in an emergent situation, requiring
(1978) immediate action, it is not practicable to give prior notice or
hearing, the preliminary action should be soon followed by
a full remedial hearing.
UGC NET Swadeshi Cotton Pre and Post-Decisional Hearing.The Supreme Court
2015 Mills vs. UOI said, ―In the facts and circumstances of the, there has been a
(1981) non-compliance with such implied requirements of the audi
alteram partem rule of natural justice at the pre-decisional
230
stage . The impugned order, therefore, could be struck

down on that score alone.‖
UGC J. 2016 A.K.Roy vs. UOI PNJ are not rigid norms of unchanging context, they have to
(28Dec.1981) be tailored to the suit the nature of the proceeding.
UGC J. 2016 Bhagat Ram vs. The inquiry was vitiated as class IV employee has to defend
State of H.P. himself against officers, hence denial of PNJ.
K.I. Shephard vs. Post Decisional Hearing. The Court said, ―It is common
UOI 18Sep.1987 experience that once a decision has been taken, there is
tendency to uphold it and a representation may not yield any
fruitful purpose.‖
H.L. Trehan v. The Court said, ―In our opinion, the post-decisional
Union of India, 22 opportunity of hearing does not sub-serve the rules of
Nov.1988 natural justice. The authority who embarks upon a post-
decisional hearing will naturally proceed with a closed mind
and there is hardly any chance of getting a proper
consideration of the representation at such a post-decisional
opportunity.‖ Thus, even if any hearing was given to the
employees of CORIL after the issuance of the impugned
circular,that would not be any compliance with the rules of
natural justice or avoid the mischief of arbitrariness as
contemplated by Article 14 of the Constitution. The
impugned circular was quashed.
UGC J.2016 H.L. Trehan v. No deprivation or curtailment of any existing right,
Union of India, 22 advantage or benefit enjoyed by a Government servant
Nov.1988 without complying with the rules of natural justice by
giving the government servant concerned an opportunity of
being heard.
UGC J.2017 H.L. Trehan v. Supreme Court made it very clear that ‗even when the
Union of India, 22 authority has statutory power to take action without hearing
Nov.1988 , it would be arbitrary to take action without hearing , it
would be arbitrary to take action without hearing and thus,
violative of Article 14 of the Constitution.
Charan Lal Sahu Post Decisional Hearing
vs.UOI (Bhopal
Gas Disater Case)
(22Dec1989)
UGC 2015 Kanara Bank vs. V. Exclusion of rule of hearing.
K.Awasthy(2005)
S.N. Mukherjee v. Requirement of passing reasoned decision
Union of India,
AIR 1990
Managing Director, Supply of inquiry Report before taking action
ECIL, Hyderabad
v. B. Karunakar,
(1993)
EFFECT VIOLATION OF The effect of violation of rule of Audi Alteram Partem
231
PNJ that is the rule of fair hearing is null and void.

EXCLUSION OF (1) Where the statute either expressly or by necessary
PNJ implication excludes application of natural justice.(2)Where
the action is legislative in character , plenary or
subordinate.(3)Where the doctrine of necessaty applies. (4)
where the prompt and urgent action is necessary (5) Where
the facts are admitted or undisputed (6)Where the inquiry is
of a confidential nature.(7) Where the preventing action is to
be taken.(8)Where nothing unfair can be inferred by non-
observance of natural justice.
UGC June Exceptions of PNJ (1)Impracticability(2) Legislative actions
2015 (3) Statutory necessity . Rule against dictation is not an
exception of PNJ
6 ADMINISTRATIVE DISCRETION
Dwarka Prasad Arbitrariness / Unreasonableness
Laxmi Narain v.
State of U.P., (1954)
UGC Jan,2015 Associated Wednesburg Principles-There are following situations
Provincial Pictures when decisions would be considered irrational (1) Without
Ltd. Vs. the Authority of Law (2) Based on no evidence (3) It is
Wednesburg unreasonable. But When decision is sanctioned by law, it
Corporation ,1948 would not be considered irrational.
UGC Jan,2017 Reliance Airport Discretion when applied to a court of justice means sound
Developers (P) Ltd. discretion guided by law . It must be governed by rule, not
Vs. Airport by humour; it must not be arbitrary , vague and fanciful but
Authority of India legal and regular.
A.N. Parasuraman Conferment of unguided power is not permissible.
v. State of Tamil
Nadu, AIR 1990
J. R. Raghupathy v. No power to the judiciary to issues writs when there is
State of A. P., AIR nothing on record to show that the decision of the
1988 Government was arbitrary or capricious or was not in
good faith or actuated with improper consideration
Coimbatore Wednesbury Principle has given way to the Principle of
District Central Proportionality .
Cooperative Bank
v. Coimbatore
District Central
Co-op. Bank
Employees Assn.,
(2007)
Om Kumar & Quantum of punishment and Doctrine of
Others v. Union of Proportionality.
India, AIR 2000
R. v. Secretary of Some comments et cetera are given in square brackets .
State for the Home
232
Department, Ex
Parte Daly, 2001
G. Sadananadan v. Malafides
State of Kerala,
AIR 1966
Express
Newspapers (Pvt.)
Ltd. v. Union of
India, 1986
State of Bombay v. Relevant and irrelevant consideration
K.P. Krishnan,
(1961
Ranjit Singh v. Consideration of relevant and irrelevant factor
Union of India,
AIR 1981
Nandlal Khodidas
Barot v. Bar
Council of Gujarat
and others AIR
1981
Shri Rama Sugar Fetters on discretionary powers.
Industries Ltd. v.
State of Andhra
Pradesh, (1974)
7 OMBUDSMAN
UPPCS 1995 First time -1809 in The office of Ombudsman was set up in Sweden in 1809 by
Sweden the Constitution itself. Finland-1909,Denmark-1954
UPPCS 1996 First State to enact Orissa-1970, Maharashtra-1971, Bihar-1973, U.P.-1975.
Lokayukta Bill Uttar Pradesh Lokayukta , Sanjaya Mishra ,was appointed
by Supreme Court in 2016.
Administrative The term "Lokpal" was coined by Dr. L.M.Singhvi in 1963
Reforms .The first ARC(Administrative Reforms Commission)
Commission was established on 5 January 1966.First time it
recommended for establishment of Lokpal . Its submitted
several reports. The Administrative Reforms Commission
was initially chaired by Morarji Desai and later on K.
Hanumanthaiah became its chairman when Desai became
the Deputy Prime Minister of India.
The Second Administrative Reforms Commission (ARC)
was constituted on 31 August 2005, as a Commission of
Inquiry, under the Chairmanship of Veerappa Moily for
preparing a detailed blueprint for revamping the public
administrative system.
UGC J.2015 Fuctioning of True Statement-(1) Lokayukta has no constitutional status
Lokayukta in (2) It is not an independent investigating agency.(3)
Indian States Prosecution and final punishment power is not vested
233
them.(4) Their decision are not final, only of

recommendatory in nature.
UGC J.2016 Lokpal and Main object of this Act is to inquire into allegations of
Lokayukta corruption against public functionaries.
Act,2013
UGC J.2016 Lokpal and (1) Every public servant shall make a declaration of his
Lokayukta assets and liabilities in the manner as provided by or under
Act,2013 Section 44 this Act. (2) A public servant shall, within a period of thirty
Declaration of days from the date on which he makes and subscribes an
Assets. oath or affirmation to enter upon his office, furnish to the
competent authority the information relating to— (a) the
assets of which he, his spouse and his dependent children
are, jointly or severally, owners or beneficiaries; (b) his
liabilities and that of his spouse and his dependent children.
UGC J.2017 Lokpal and (a) Establishment or Composition of Lokpal- Section 3(2),
Lokayukta (at the central level).(b) Section 63 Establishment of
Act,2013 -Total Lokayukta -Every State shall establish a body to be known
Section 63 as the Lokayukta for the State, if not so established,
constituted or appointed, by a law made by the State
Legislature, to deal with complaints relating to corruption
against certain public functionaries, within a period of one
year from the date of commencement of this Act. (c)
Section 6- Terms of office of Chairperson and Members of
Lokpal (d)Section-37. Removal and suspension of
Chairperson and Members of Lokpal.
UGC J. 2017 Section 4- 4. (1) The Chairperson and Members shall be appointed by
Selection Appointment of the President after obtaining the recommendations of a
Committee Chairperson and Selection Committee consisting of— (a) the Prime
Consisting of – Members on Minister—Chairperson; (b) the Speaker of the House of
Total-5 recommendations of the People—Member; (c) the Leader of Opposition in the
Members Selection House of the People—Member; (d) the Chief Justice of
Committee. No role India or a Judge of the Supreme Court nominated by him—
of Chairperson or Member; (e) one eminent jurist, as recommended by the
opposition leader of Chairperson and Members referred to in clauses (a) to (d)
Rajya Sabha. above, to be nominated by the President—Member.
8 WRITS PETITIONS
UPPCS 1996 Gulam Sarvar vs. Principle of Constructive Res Judicata is not applicable to
UOI (1967) writ of Habeas Corpus.

234
Commission (22nd Rank )and UPSC as 1st rank holder . Special thanks to Rajendran
Veerappan, Venkateshwaran , Gayathri, Mary , Arathi , Trapti Aggarwal and other
person who liked, commented and shared my post .
KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, Dr. AGLC, PUDUCHERRY

MUSLIM LAW
La ilaha-ill Allah, Muhammad – ur –Rasool- ullah
UGC NET 2ND PAPER 3RD
Concepts in family law, Sources of Marriage , Divorce, Adoption and Guardianship ,
family law, marriage and dissolution maintenance , matrimonial remedy Uniform Civil Code
MUSLIMS
MOTAZILA SUNNI SCHOOL( In last-I ) 70 SHIA SCHOOL ( In last-IA )30
HANIFI (Largest community in ITHNA ASHARIA / IMAMIA
235
India (There are two banch-(a) Akhbari (b) Usuli

MALIIKI ISMAILIA
(There are two banch-(a) Khoja (b) Bohra (Bohra
these are business minded community. They are found
mainly in Bombay Gujarat , Surat & Banglore.
Richest community in Muslim)
SHAFEI ZAYDIA
HANBALI
MARRIAGE
Hedaya (Hedaya‘s work was ―Marriage (Nikah) implies a particular contract used
translated by Hamilton. Hedaya is a for the purpose of legalizing children (generations‖
commentary on Muslim Law)
21 Jan.1886 Abul Kadir v. Salima Mahmood J. , ―marriage among Muhammadans is not a
All. H.C. sacrament but purely a civil contract‖
. Essentials The following are the essentials of a valid marriage:
(I) There must be an offer and acceptance; (ii) The
parties must be of sound mind; (iii) They must have
attained the age of majority.
KINDS OF MARRIAGE Sunni Law -There are three types of marriage (1)
Sahih- Valid (2) Batil- Void (3) Fasid – Irregular. Shia
Law- There are three types of marriage (1) Sahih-
Valid (2) Batil- Void (3) Muta- Temporary
Grounds of Batil (Void) Marriage Batil marriage is illegal union. It exists neither in fact
nor in law
Sunni Law – There are only two (1) Marriage in violation of absolute prohibition ,
grounds- namely, (a) Consanguinity – Relation by blood (b)
Affinity – Relation by marriage (c)Fosterage- Relation
by milk
(2) Polyandry- Marriage with any lawfully married
woman
Shia Law- There are seven grounds. (1) Marriage in violation of absolute prohibition ,
First and second grounds are namely, (a) Consanguinity – Relation by blood (b)
common in Sunni and Shia law. Affinity – Relation by marriage (c)Fosterage- Relation
by milk
(2) Polyandry- Marriage with any lawfully married
woman. (3) Marriage against the prohibition of
unlawful conjunction (4) Marriage with fifth wife (5)
Marriage with a women undergoing Iddat (6) Marriage
with any non – Muslim (7) Marriage during
pilgrimage
IRREGULAR MARRIAGE (1) Marriage against the prohibition of unlawful
Total five grounds, among them four conjunction (2) Marriage with fifth wife (3) Marriage
ground are on the basis of which with a women undergoing Iddat (4) Marriage with any
marriage is void under Shia Law. non – Muslim or non-Kitabia (5) Marriage without two
competent witness.
236
Imp. Marriage during pilgrimage Sunni- Valid, Shia-Void

Imp. Marriage with a women undergoing Sunni- Irregular, Shia-Void
Iddat
TEMPORARY MARRIAGE(Muta Only Shia School. There are three sect of Shia School
Marriage) but only Ithna Asharia / Imamia school recognizes
Muta Marriage.
Valid Muslim male (of any sect) + Muslim Female (of any sect)
Void Muslim Female + Non- Muslim male
Void Shia male + Non- Muslim Female
Valid Sunni male + Kitabia female (UK J-2011)
Irregular Sunni male + Female who is neither Muslim nor Kitabia
UGC A marriage under Muslim Law Batil (Void). Under both School, such marriage is
NET2014 between persons with fosterage Batil. Such marriage comes under category of absolute
relationship is? prohibition.
No con IDDAT ( Iddat ia a Arabic word Iddat is a period in which sexual intercourse is
which means ‗counting‘. Counting prohibited and it is observed by wife after dissolution
means counting the days of possible of marriage. By this methods, paternity is ascertained.
conception to ascertain whether Marriage is prohibited during this period. If it is done-
women is pregnant or not. Sunni- Irregular, Shia-Void
Period of Iddat (Period of Iddat starts Period of Iddat depends upon mode of dissolution
from the time of divorce or death rather of marriage, menstruation period and kind of
than from the time of communication to marriage.
Wife.)
DIVORCE ( No consummated , DEATH (4Months and 10 Days) (In Every case
No Iddat ) Iddat, whether consummation has taken place or not.)
(1) If woman is subject to (1) 4 months 10 days (2) Till delivery (3) In case of
menstruation course- Three both , whichever would be longer (4) 4 months 10 days
menstrual courses. (2) If woman is even in case of Muta Marriage
not subject to menstruation course-
Three lunar months (3) Pregnant
woman- Till delivery of pregnancy
(4) In case of Muta Marriage- Two
monthly courses
237

my post .

LAW AS A MEANS TO PROTECT THE INTEREST OF WOMEN
Existence of human being cannot be imagined without women. A woman plays several role as
for example mother, sister, wife etc. Mother is a first teacher of her children. In Manusmrti
―Yatra Naryastu Pujyante, Ramante Tatra Devata‖70 has been written to denote the value of
women. But, it is very unfortunate that till now violence against women has not been stopped.
Statement of the Mr. Ram Nath Kovind, ―Violence against women is a main concern of the
69
LL.B.-Banaras Hindu University, LL.M.-University of Delhi, UGC-JRF. Ph.D. (Pursuing) –
Banaras Hindu University. Assistant Professor- (1) University of Delhi, Delhi, Ex. (2) Dr.
AGLC, Puducherry, Ex. (3) MBSPC, Gangapur, Varanasi.
70
Where woman is worshiped, there God resides.
238
Government,‖71 is sufficient to denote the current position of Indian women. Although, there are
certain women who have achieved highest goal. But women literacy rate72 , child sex ratio73 and
record of offences against women denotes that condition of women in India is not satisfactory.
For offences against women, not only society is responsible, but also machinery of State is
responsible. State controls the behavior of society by with the help of law. So, it becomes
necessary to evaluate the law and trace lacunas of laws so that by removing those lacuna,
condition of women in India may be ameliorated. I have decided to discuss this topic in five
parts. These parts are (1) Constitution of India including other enacted law (2) Role of Indian
Judiciary (3) Institutions at national and international level, (4) Suggestions and (5) Conclusion.
PART-ONE CONSTITUTION OF INDIA INCLUDING OTHER ENACTED LAW
In this part, I will discuss Constitutional provisions and other laws, namely Criminal and Civil
Laws. Under Criminal Laws, there are several laws, but, I will discuss few of them. For example
Criminal Procedure Code, 1973, Indian Penal Code, 1860, Dowry Prohibition Act, 1961,
Domestic Violence Act, 2005 etc. Under Civil Laws, there are several laws, but, I will discuss
few of them. For example Civil Procedure Code, 1908, Family laws etc.
(1) CONSTITUTION OF INDIA, 195074- Framers of the Constitution knew very well that
condition of women were not very satisfactory. That‘s why, they provided several special
provisions to give proper opportunity for development of women so that nation can enjoy
intellect and labour of all its subjects.
In this Constitution, there are two types of provisions. In the first category, there are certain
provisions where specific words have not been mentioned regarding women, but women may
come under those provisions. For example, in preamble of the Constitution of India, even a
single word has not been mentioned regarding women. But they are also covered by the
preamble. Preamble of the Constitution of India says, ―We the people of India…..to secure to all
its citizens: Justice, Liberty, Equality, Fraternity and dignity of individual….‖ ―We, citizens and
individuals‖ includes all persons irrespective of their sex, religion, race, caste or place of birth
etc. It means sole object of the Constitution is to treat all persons equal and provide equal
opportunities for all including women.
In the second category, there are certain provisions which clearly talks about women. For the
example Articles 15(3), 39(a), (d), and (e), 51A (e), 243(D), (T) & (ZJ) and Eleventh Schedule.
There a1re certain Articles which contains ‗sex‘ word on the basis of which, it can be said that
those Article also clearly talks about women. For example Articles 15(1) & (2), 16 (2), and
325.75
71
Hon‘ble President of India Mr. Ram Nath Kovind, Date January 20, 2018.
72
65.46%.
73
http://pib.nic.in/newsite/PrintRelease.aspx?relid=103437, visited on 20/01/2018. Census of
India 2011. Child Sex Ratio (0-6)- 919/1000.
7474
According to Article 394 of Constitution of India, certain provisions came into force on
November 26, 1949 and remaining provisions came into force on January 26, 1950.
75
Article 325- No person to be ineligible for inclusion in, or to claim to be included in a special,
electoral roll on grounds of religion, race, caste or sex.
239
According to Article 15(1) & (2), women shall not be discriminated on the basis of their sex.
According to Article 15(3), State is authorize to make special provision for women. By using this
power, State has enacted several special provisions for women. For example Dowry Prohibition
Act, 1961, Domestic Violence Act, 2005, no arrest of women in execution of decree for money76
or women can be arrested only by woman police.77 According to Article 16(2), no Indian women
shall be ineligible or discriminated for any employment or office under the State.
Part IV78 of the Constitution of India, gives direction to the State that, at the time of making
laws, State shall apply the principles contained in this part. According to Article 39 (a), there is
no difference between man and woman and both have equal right to an adequate means of
livelihood. Article 39(d) declares that equal pay for equal work for both men and women. Article
39 (e) says that State shall make policy for health and strength of women worker. Article 42
deals about maternity relief.
Articles 243(D)79, (T)80 & (ZJ)81 deal reservation for women in election of local bodies. Article
325, women shall not be ineligible for electoral roll only on ground of their sex. These Articles
provides women political rights.
(2) INDIAN PENAL CODE, 1860. This is the main penal law in this country. According to
section 10 of this Code, the word ―women‖ denotes a female human being of any age. Several
special provisions have been inserted for protection of women. For example Sections 354,82
354A,83 354B,84354C,85354D,86 366,87 37288, 373,89 375,90 498A,91 and 50992 etc. Tukaram vs.
76
Section 56 of Civil Procedure Code, 1908.
77
Section 46 of Criminal Procedure Code, 1973.
78
Constitution of India, Part-IV, Articles 36-51, Directive Principles of State Policy.
79
Part IX-The Panchayats, Inserted by Constitution (Seventy-third Amendment) Act, 1992
(w.e.f.24-04-1993).
80
Part IXA-The Municipalities, Inserted by Constitution (Seventy-fourth Amendment) Act, 1992
(w.e.f.01-06-1993).
81
Part IXB - The Co-Operative Societies, Inserted by Constitution (Ninety-seventh Amendment)
Act, 2011 (w.e.f.15-02-2012).
82
Section 354 of Indian Penal Code, 1860. Assault or Criminal force with intent to outrage her
modesty.
83
Section 354A of Indian Penal Code, 1860. Sexual harassment
84
Section 354B of Indian Penal Code, 1860. Disrobing
85
Section 354C of Indian Penal Code, 1860. Voyeurism
86
Section 354D of Indian Penal Code, 1860.Stalking
87
Section 366 of Indian Penal Code, 1860.kidnapping or abducting or inducing women to
compel her marriage.
88
Section 372 of Indian Penal Code, 1860-Selling minor for the purpose of prostitution.
89
Section 373 of Indian Penal Code, 1860- Buying minor for the purpose of prostitution.
90
Section 375 of Indian Penal Code, 1860- Rape
91
Section 498A of Indian Penal Code, 1860. Husband or relative of husband of a women
subjecting her to cruelty.
92
Section 509 of Indian Penal Code, 1860- Words, gesture or act intended to insult the modesty
of a woman
240
State of Maharashtra93 (Mathura Rape case) and Delhi Gang Rape Case94 had vehemently
influenced criminal law system in India. After Delhi Gang Rape case, J. S. Verma Committee
submitted its report on January 23, 2013. First time death sentence in rape case was provided in
two circumstances namely, (1) Section 376A95, & (2) S.376E.96
(3) CODE OF CRIMINAL PROCEDURE, 1973- This Code provides several safeguards for
women. Women cannot be arrested after sunset and before sunrise. In exceptional circumstances,
women can be arrested by women police officer after prior permission of the Judicial Magistrate
of the first class within whose local jurisdiction offence is committed or the arrest is to be
made.97 Offence of rape shall be tried as for as practicable by a Court presided over by a
women.98 If woman, who is victim of acid attack, outrage of modesty, sexual harassment,
disrobing, voyeurism, stalking, rape or word or gesture whereby modesty of women has been
insulted, goes to the Police Station then her First Information Report (FIR) shall be lodged by a
woman police officer or any woman officer.99 A police officer who is making an investigation of
an offence cannot call a woman at police station for the purpose of inquiry. Such police officer is
bound to go at residence of such woman, if he wants to ask any question regarding an
investigation of an offence.100 Investigation of child rape may be completed within three months
from the date on which the information was recorded by the officer in charge of police station. 101
There are certain situation when a person shall not be released on bail by Judicial Magistrate but
in the case of woman in the same circumstances, Judicial Magistrate may gran bail. 102 There are
certain provisions for maintenance of wife.103
(4) CODE OF CIVIL PROCEDURE, 1908
This Code provides several safeguards for women. The Court shall not order the arrest or
detention in the civil prison of a woman in execution of a decree for the payment of money. 104
Certain ornaments of woman cannot be attached in execution of decree.105 Certain women are
exempted from personal appearance in Court.106
(5) HINDU MARRIAGE ACT, 1955- Hindu Marriage Act is the constant struggle of respected
Dr.Bhim Rao Ambedkar and revered Prime Minister Pt. Jawahar Lal Nehru. This Act is like
fresh air for Hindu women. By this, several evil were removed. For the example, male were
93
Date of Judgment, September 15, 1978.
94
Date of commission of rape -16 Dec.2012.
95
Punishment for causing death or resulting in persistent vegetative state of victim.
96
Punishment for repeat offenders.
97
Section 46 (4) of Code of Criminal Procedure, 1973.
98
Section 26 (a) Provide that….. of Code of Criminal Procedure, 1973.
99
Section 154(1) Provide that….. of Code of Criminal Procedure, 1973.
100
Section 160(1) Provide that…. of Code of Criminal Procedure, 1973.
101
Section 173(1A)…………..…..of Code of Criminal Procedure, 1973.
102
Section 437 (1) Provide that…..of Code of Criminal Procedure, 1973.
103
Sections 125-128 of Code of Criminal Procedure, 1973.
104
Section 56 of Code of Civil Procedure, 1908.
105
Section 60(1) (a) of Code of Civil Procedure, 1908.
106
Section 132 (1) of Code of Civil Procedure, 1908.
241
allowed to got as many marriage, as he thought fit. Now, bigamy is prohibited.107 But woman
were not allowed for more than one marriage. Marriage were treated as a holy bond and divorce
was not allowed. Now, in certain circumstances, divorce is allowed.108 Four more grounds of
divorce for women have been provided.109
(6) HINDU SUCCESSION ACT, 1956 - By Hindu Succession (Amendment) Act, 2005,
daughter has been declared coparcener and given same right and liability as of son. This
Amendment is a milestone for protection of interest of women. Now, in case of harassment by
husband, woman may return her birth place and by taking her share in coparcenary property may
survive with dignified life.
(7) DISSOLUTION OF MUSLIM MARRIAGE ACT, 1939. In Muslim personal law,
husband has unlimited and unconditional right of divorce. So Dissolution of Muslim Marriage
Act, 1939 was passed to ameliorate the condition of Muslim women.
There are several other enactments which have been passed to protect and empower women. For
example Dowry Prohibition Act, 1961, Domestic Violence Act, 2005, The Prohibition of Child
Marriage Act, 2006 etc. Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act,
1994 was enacted to stop female feticide and arrest the declining sex ratio in India. The act
banned pre-natal sex determination.
PART-TWO ROLE OF INDIAN JUDICIARY
Hon‘ble Supreme Court of India has played very vital role in protection and empowerment of
women. I am going to discuss role of the Hon‘ble Supreme Court with the help of cases decided
by it.
AIR INDIA VS. NARGESH MEERZA110
In this case, the question was whether retirement of Air Hostesses in the event of marriage taking
place within four years of service was unreasonable or arbitrary. The Court held that the
termination of service on pregnancy was manifestly unreasonable and arbitrary under Article 14
of the Constitution of India. A regulation providing for termination of service of an Air Hostess
in Air India International on her first pregnancy has been held to be arbitrary and abhorrent to the
notions of a civilized society.111
VISHAKA AND ORS VS. STATE OF RAJASTHAN AND ORS.112 A Writ Petition has been
filed for the enforcement of the fundamental rights of working women under Articles 14, 19 and
21 of the Constitution of India in view of the prevailing climate in which the violation of these
rights is not uncommon. There was no any statute to control sexual harassment of working
women. Supreme Court laid down certain guidelines with the help of International Conventions
and Articles 14, 15,16, 19 & 21 and directed that these guidelines would be treated as a law
107
Section 17 of Hindu Marriage Act, 1955.
108
Section 13 of Hindu Marriage Act, 1955.
109
Section 13 (2) of Hindu Marriage Act, 1955.
110
Date of Judgement 28August, 1981. AIR1981 SC 1829.
111
112
Date of Judgement 13 August 1997.
242
declared by this Court under Article 141 of the Constitution of India, unless a statute is enacted
to control sexual harassment of women at workplace. These guidelines were applicable in public
and private sector both. The Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013113 was enacted in accordance with these guidelines.
Provisions regarding Constitution of Internal Complaints Committee, compensation to victim
and penalty in case of non-compliance with these provisions were provided by this Act,2013.
MS. GITHA HARIHARAN AND ANR. VS. RESERVE BANK OF INDIA AND ANR.114
Section 6 of the Hindu Minority and Guardianship Act, 1956 was challenged by Writ Petition.
―the father and after him, the mother‖ has been used under 6 to decide natural guardian of Hindu
minor. Supreme Court held that here ‗after‘ means ―in the absence of‖ taking care rather than
death of father. The Court said that if ‗after‘ word would be interpreted as death then mother
would be disqualified to be natural guardian during the lifetime of father which would violate
one of the basic principles of our constitution i.e. gender equality.
THE CHAIRPERSON, RAILWAY BOARD & ORS. VS. MRS. CHANDRIMA DAS &
ORS.115 Gang Rape was committed with Bangladeshi lady Smt. Hanuffa Khatoon by several
persons including railway employee in Railway Yatri Niwas at Howrah Station. Mrs. Chandrima
Das was a practicing advocate filed a wit petition under Article 226 and won the case in Calcutta
High Court. Against this Judgement, appeal was filed in Supreme Court. Supreme Court held
that ‗person‘ used under Article 21, so Article 21 is also available to foreigners. In Case of rape
of foreigner, writ petition can be filed because right to life includes dignified life. Principle of
Sovereign immunity could not be applied in this case. Rs.10 lacs compensation given by Calcutta
High Court was affirmed by Supreme Court. Article 21 was interpreted in context of preamble of
Charter of the United Nations and Universal Declaration on human Rights, 1948.
DANIAL LATIFI AND OTHERS VS. UNION OF INDIA116- Through writ petition
constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986 was
challenged. Supreme Court held that the Act is constitutional. But interpretation of the Act by the
Court was excellent. In this case, The Court held that nowhere the Parliament has provided that
reasonable and fair provision and maintenance is limited only for the Iddat period and not
beyond it. It would extent to the whole life of the divorced unless she gets married for a second
time. It was held that according to this Act, husband is bound to pay reasonable and fair
provision during Iddat for whole life.
SHAYARA BANO ANR. VS. UOI & ORS117 (TRIPLE TALAQ CASE)
The Court held that Triple talaq is against gender equality.118 Article 15 also prohibits
discrimination on the ground of sex. Triple talaq is arbitrary, while arbitrariness is anti-thesis of
equality.119 Right to life includes right to dignified life. Triple talaq is against this right. Triple
113
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013, India, Available at http://lawmin.nic.in, (visited on January 22, 2018).
114
Date of Judgement, February 17, 1999. AIR1999 SC1149.
115
Date of Judgement, January 28, 2000.(2000)2SCC465. AIR2000SC988.0.
116
Date of Judgement, September 28, 2001.
117
Date of Judgement 22 August, 2017,
118
Article 14 of the Constitution of India.
119
E. P. Royappa vs. State of Tamil Nadu & Anr. Date of Judgement 23 November, 1973.
243
talaq (irrevocable talaq) is not essential part of talaq. So it is not protected under Article 25 of the
Constitution. Triple Talaq is unconstitutional. This is a very significant judgement for protection
of interest of women.
INDEPENDENT THOUGHT VS. UNION OF INDIA & ANR.120 By decision of this case
Supreme Court equality among all women and prevented sexual harassment of women for the
name of marriage. Supreme Court held that sexual relations with wife, when wife is below the
age of 18 years is a rape. Section 375 Exception 2 is arbitrary to Articles 14, 15 & 21 of the
Constitution of India. Court may take cognizance under section 198(6) of Cr. P.C. Now in all
cases, sexual intercourse with a women including wife, if she is below the age of 18 years, is
rape.
PART-THIRD, INSTITUTIONS AT NATIONAL AND INTERNATIONAL LEVEL
In India, Commission for Women is at two level i.e. National level and State level. At national
level, it is called National Commission for Women121122 and at State level it is called name of the
State Commission, for example Tamil Nadu State Commission for Women. In 29 States and 7
Union Territories, States/UTs Commission for Women have been established.123 In Uttar
Pradesh State Women Commission has been established under Uttar Pradesh State Women
Commission Act, 2004.124 Help line number of U.P. State Women Commission is1515. Any
woman victim may complain to these Commissions either online or offline.
The Department of Women and Child Development, Government of India, came into existence
as a separate Ministry with effect from 30th January, 2006, earlier since 1985 it was a
Department under the Ministry of Human Resources Development. 125 The Department of
Women and Child Development, Government of India is the nodal agency to promote the
welfare of women and child.
There are several policy and scheme to protect the interest of women. Beti bachao, Beti
padhao126 is a social campaign of the Government of India that aims to generate awareness and
improve the efficiency of welfare services intended for girls. This Scheme was launched by
Hon‘ble Prime Minister Mr. Narendra Modi in 2015. Sukanya Samriddhi Yojana was launched
by the Government so that daughter should not be treated as burden and parents would be
without tension regarding marriage of daughter. There are several Government and Non-
Government agencies are creating awareness for safety of women. Role of All India Radio is
applaudable in creating the awareness for safety of women.
120
121
National Commission for Women has been established under Section 3 of National
Commission for Women Act, 1990.
122
Available at http://ncw.nic.in/frmListStateCommission.aspx (visited on January 22, 2018).
123
Ibid.
124
Available at http://mahilaayog.up.nic.in/act.html (visited on January 22, 2018).
125
Available at http://wcd.nic.in/about-us/about-ministry (visited on January 22, 2018).
126
Available at https://www.youtube.com/user/BetiBachaoBetiPadhao (visited on January 22,
2018). Several videos are available on this website regarding awareness of safety of daughter.
244
PART 4- SUGGESTIONS.
There are several laws and policies for protection of women, but till now condition of women is
not satisfactory. There are following suggestions regarding this topic-
(1) Main problem is regarding implementation of laws and policies. It is necessary to evaluate
the effect of policies and implementation of laws. After evaluation, law and policies must be
amended according to the need of the society.
(2) Laws and policies must me made according to the custom and usage of the society. If it is not
so made, then such laws and policies would be fail. For example, Dowry Prohibition Act, 1961
was passed by joint Session of Parliament. But, till now, it is totally fail to ameliorate the
condition of women. In Indian Society, Dowry must be recognised so that after marriage,
married woman cannot be harassed, and promised money can recovered from Court from the
person who has promised to give.
(3) Main concentration must be given regarding economic condition of women. Although by
passing of Hindu Succession (Amendment) Act, 2005 some share has been fixed for daughter.
But conditions of women in other religion are not satisfactory. Other personal laws need to be
codified and fix the share of women.
(4) Appeasement on the basis of religion and caste must be thrown out. Condition of Muslim
women is not satisfactory in the matter of marriage and divorce. Regarding marriage, man is
allowed to get marriage more than one while woman is not allowed to get marriage more than
one. It is against the gender equality. In Case of divorce, woman has limited ground of divorce,
while husband has unlimited ground of divorce. Reservation is tools to improve condition of
weaker sections. But condition is that it must be implemented in good faith. Income of creamy
layer must be decreased and concept of creamy layer must be applied in case of Scheduled
Castes and Tribes so that needy women can take benefit of reservation.
(5) Need of increasement of number of Courts, judges, public prosecutor and other facilities so
that cases regarding violence against women can be disposed very quickly.
(6) Creating awareness among society regarding improving the condition of women
PART FIVE- CONCLUSION.
From the above discussion, it becomes very clear that Laws, Courts, Governments and Non-
Government agencies have played very crucial role in ameliorating the condition of women. But
something more is needed to be done. Role of the family and society cannot be ignored. It can
be said that by observing the above suggestions, condition of women can be improved and nation
can enjoy power of all its subjects.
245

‗TALAQ-E-BIDDAT‘ (TRIPLE TALAQ) IN INDIA
INTRODUCTION- Marriage dissolves in two ways either my death of party or by act of parties
(divorce). Divorce may be divided into two parts namely, (1) Extra-Judicial Divorce i.e. divorce
without help of Court. Extra-judicial Divorce may be further divided into three parts namely, (i)
By husband (a) Talaq (b) Illa (c) Jihar (ii) By wife – Talaq-e-Tafweez (Delegated Divorce. This
power is conferred by husband. It is totally depends upon discretion of husband.) (iii) my mutual
agreement (a) Khula & (ii) Mubarat . In all these case, without sweet will of husband, divorce is
not possible, while wife cannot prohibit husband from taking divorce. (2) Judicial Divorce i.e.
divorce with the help of Court. From the very beginning, husband had unlimited power of
divorce and divorce by wife depended upon sweet will of husband. So the Dissolution of Muslim
Marriage Act, 1939 was passed whereby some special grounds of divorce were provided on the
basis of which woman may take talaq. This Act does not provide even a single ground of divorce
for husband because he had already unlimited power of divorce. Talaq is a divorce at the
instance of husband. There is a difference between ‗Talaq‘ and ‗Divorce‘. Talaq can be given
only by husband while divorce may be given by either party. Divorce includes Talaq. There are
two types of Talaq namely, (i) Revocable talaq and (ii) Irrevocable talaq. Revocable talaq may
be further divided into two parts i.e. ‗Talaq-e-ahsan, ‗Talaq-e-hasan‘. Irrevocable Talaq/instant
Talaq‘ is also called ‗Talaq-e-biddat‘. Among these Talaq, ‗Talaq-e-biddat‘ is called triple
Talaq. This mode of Talaq prevails only among Hanafi sect of Sunni School. Constitutional
validity of ‗Talaq-e-biddat‘ was challenged in the case of Shayara Bano & Anr. vs. UOI &
127
LL.B.-Banaras Hindu University, LL.M.-University of Delhi, UGC-JRF. Ph.D. (Pursuing) –
Banaras Hindu University. Assistant Professor- (1) University of Delhi, Delhi, Ex. (2) Dr.
AGLC, Puducherry, Ex. (3) MBSPC, Gangapur, Varanasi.
246
Ors128 (Triple Talaq Case). Grounds of challenge was that ‗Talaq-e-biddat‘ was neither approved
by Prophet, nor in accordance with the provisions of the Constitution of India.
Supreme Court by 3:2 majority of opinion in the case of Shayara Bano & Anr. vs. UOI &
Ors129 held that triple Talaq is against gender equality.130 Article 15 also prohibits discrimination
on the ground of sex. Triple Talaq is arbitrary, while arbitrariness is anti-thesis of equality.131
Right to life includes right to dignified life. Triple Talaq is against this right. Triple Talaq
(irrevocable Talaq) is not essential part of Talaq. So it is not protected under Article 25 of the
Constitution. Triple Talaq is unconstitutional. This is a very significant judgement for protection
of interest of women. Muslim Women (Protection of Rights on Marriage) Bill 2017 has been
passed in Lok Sabha and pending in Rajya Sabha in which ‗Talaq-e-biddat‘ has been declared an
offence. Such offence would be cognizable and non-bailable offence. Nineteen countries have
abolished ‗Talaq-e-biddat‘. I have decided to discuss this topic in five parts. These parts are (1)
History of Triple Talaq (2) Current position of Triple Talaq in India and world (3) Constitution
of India and other enacted laws (4) Role of Indian Judiciary (5) Suggestions and (6) Conclusion.
PART ONE-HISTORY OF TRIPLE TALAQ
After the death of Prophet Mohammad, on the point of successor of Prophet, Islam was divided
into two parts. One group claimed that successor must be selected. This group called Sunni.
Other group claimed that successor must be related by blood of prophet i.e. nominated. This
group called Shia. There are three schools of Muslim Law i.e. (1) Sunni School, (2) Shia School
& (3) Motazila School. These schools are divided into several sects. There are four Sect of Sunni
School namely, (i) Hanafi, (ii) Maliki, (ii) Shafei & (ii) Hanbali. There are three Sect of Shia
School namely, (i) Athna Asharia or Imamia (ii) Ismailyas and (iii) Zaidyas. According to
Census 2011,132 total population of India is 1210854977. Among these population, total
population of Muslim is 14.22%.133 Muslim women population of total population of country is
6.93%.134 Near about 90 % Muslim is Hanafi Sunni in India who ‗Talaq-e-biddat‘. ‗Talaq-e-
biddat‘ is not followed by Shia School and Maliki sect of Sunni School.
In Islam, Prophet recognised only revocable kind of Talaq. He never recognized irrevocable
types of Talaq. There are two types of Talaq are revocable. Revocable Talaqs are Talaq-e-Ahsan
(Most proper) and Talaq-e-hasan (Proper). ‗Talaq-e-biddat‘ is irrevocable types of Talaq.
‗TALAQ-E-BIDDAT‘- ‗Talaq-e-biddat‘ becomes irrevocable immediately when it is
pronounced. The husband may make three pronouncement in a period of purity ‗Tuhr‘ saying: ―I
divorce thee (Thee means you), I divorce thee, I divorce thee‖. He may declare his Triple Talaq
even in one sentence saying: ―I divorce thee thrice‖ or I pronounce my first, second and third
128
Date of Judgement 22 August, 2017, Supreme Court.
129
Ibid.
130
Article 14 of the Constitution of India.
131
E. P. Royappa vs. State of Tamil Nadu & Anr. Date of Judgement 23 November, 1973.
132
http://censusindia.gov.in
133
Ibid.
134
Ibid.
247
Talaq.‖135 There is no opportunity of reconciliation. This Talaq is also known as Talaq-ul-

bain.136 According to Ameer Ali, this mode of Talaq was introduced by the Omayad kings
because they found the checks in the Prophet‘s formula of Talaq inconvenient to them.137 Since
then ‗Talaq-e-biddat‘ is in practice. Due to advancement of technology, husbands have started to
divorce their wives through electronic media also. For example Mobile, WhatsApp, Facebook,
Messenger etc.
PART TWO - CURRENT POSITION OF TRIPLE TALAQ IN INDIA AND WORLD.
INDIA-Before the decision of Shayara Bano & Anr. Vs. UOI & Ors 138, Triple Talaq was valid
and was followed by Hanafi School.
RASHID AHMAD V. ANISA KHATUN139
The primary issue that came to be adjudicated in the above case, pertained to the validity of
‗Talaq-e-biddat‘ pronounced by Ghiyas-uddin, a Sunni Mohomedan of the Hanafi school, to his
wife Anisa Khatun . The marriage of Anisa Khatun with Ghiyas-ud-din had taken place on
28.08.1905. Ghiyas-ud-din divorced her on or about 13.09.1905. Ghiyas-ud-din pronounced
triple talaq, in the presence of witnesses, though in the absence of his wife. Ghiyas-uddin
executed a ‗Talaqnama‘ (decree of divorce) dated 17.09.1905, which narrates the divorce. The
‗Talaqnama‘ is alleged to have been given to Anisa Khatun. Anisa Khatun challenged the
validity of the divorce, firstly, for the reason, that she was not present at the time of
pronouncement of divorce. And secondly, that even after the aforestated pronouncement,
cohabitation had continued and subsisted for a further period of fifteen years, i.e., till the death of
Ghiyas-ud-din. In the interregnum, five children were born to Ghiyas-ud-din and Anisa Khatun.
Their Lordships are of opinion that the pronouncement of the triple Talaq by Ghiyas-ud-din
constituted an immediately effective divorce and the children born after the triple divorce were
held to be illegitimate. In this case Halala process was not followed and there was no evidence of
remarriage.
ABROGATION OF THE PRACTICE OF ‗TALAQ-E-BIDDAT‘ IN WORLD- The
countries which have abolished ‗Talaq-e-biddat‘ have been divided into Arab States, Southeast
Asian States, and Sub-continental States by Tahir Mahmood and Saif Mahmood.140
(1)Arab States-(i) Algeria (ii) Egypt (iii) Iraq (iv) Jordan (v) Kuwait (vi) Lebanon (vii) Libya
(viii) Morocco (ix) Sudan (x) Syria (xi) Tunisia (xii) United Arab Emirates (xiii) Yemen (In
Yemen Halala has also been removed.) (2) Southeast Asian States, (i) Indonesia (ii) Malaysia
(iii) Philippines. (3) Sub-Continental States (i) Pakistan (ii) Bangladesh (iii) Sri Lanka.
135
Dr. R. K. Sinha, Muslim Law, p.no. 89, (Central Law Agency, Allahabad, Sixth Edition,
2006).
136
Aqil Ahmad, Mohammedan Law, p.no. 172, (Central Law Agency, Allahabad, 23rd Edition,
2009).
137
Ameer Ali: Mohammedan Law, Part II, Edn. III, p.514.
138
139
AIR 1932 PC 25 47.
140
Tahir Mahmood and Saif Mahmood , ‗Muslim Law in India and Abroad‟, (Universal Law
Publishing Co. Pvt. Ltd., New Delhi, 2012 edition),
248
Nineteen countries have abrogated ‗Talaq-e-biddat‘ by making laws. But, India, due to
appeasement policy never made law for betterment of Muslim women.
PART THIRD - CONSTITUTION OF INDIA AND OTHER ENACTED LAWS
Triple Talaq was challenged in the Supreme Court on the ground of Articles 14, 15, 16 & 21, and
it was defended on the ground of Articles 25 and 26 in the case of Shayara Bano & Anr. vs. UOI
& Ors.141 So I have decided to discuss only these Articles. According to Article 14, ―The State
shall not deny to any person equality before the law or the equal protection of the laws within the
territory of India.‖ This Article allows classification rather than class legislation. There are three
conditions must be fulfilled to apply by any legislation i.e.
(1) Reasonable differentia- The classification must be founded on an intelligible differentia
which distinguishes persons or things that are grouped together from others left out of the group.
For example age of person or sex.
(2) Rational relation with object- The differentia must have a rational relation to the object
sought to be achieved by the Act.
(3) No arbitrariness- Equality is anti-thesis of arbitrariness. So law must not be arbitrary.142
Gender equality is a part and parcel of Article 14 of the Constitution of India.143
Article 15(1) and (2) prohibits discrimination on the ground of sex. Article 15(3) enables the
State to make special provision for the protection of interest of women. According to Article 21,
―No person shall be deprived of his life or personal liberty except according to procedure
established by law.‖ Right to life includes dignified life.144
Article 25 provides four types of rights namely, (1) Freedom of Conscience, (2) Freedom of
Profession, (3) Freedom of Practice, (4) Freedom of Propagation. There are certain restrictions
which may be grouped into three categories. These categories are (1) Restrictions under Article
25(1) -(1) Public order (2) Health (3) Morality (4) Subject to the other provisions of this part,
(for example equality, abolition of untouchability, right to life, traffic in human being and forced
labour). (2) Restrictions under Article 25(2) (a) - (5) economic activity (6) financial activity (7)
political activity (8) secular activity. (3) Restrictions under Article 25 (2) (b) - (9) Social
welfare & reforms (10) Opening of Hindu religious institutions for all sections (e.g. S.C., S. T. &
Women).
Article 26 provides four types of rights namely, (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; (d) to administer such property in accordance
with law. There are three restrictions namely, (1) Public order (2) Health and (3) Morality.
141
Date of Judgement 22 August, 2017, Supreme Court..
142
E. P. Royappa vs. State of Tamil Nadu & Anr. Date of Judgment on 23 November, 1973,
Supreme Court.
143
Ms. Githa Hariharan and Anr. Vs. Reserve Bank of India and Anr. Date of Judgement,
February 17, 1999. AIR1999 SC1149.
144
Maneka Gandhi vs . Union of India. Date of Judgment 25 January,1978, Supreme Court.
249
According to Article 13, any law, either pre or post constitutional law, in case of inconsistency
with fundamental rights would be void.
There are two laws which are directly related to divorce. First law is The Muslim Personal Law
(Shariat) Application Act, 1937. The Muslim Personal Law (Shariat) Application Act declares
that Muslim Personal Law shall have overriding effect upon custom or usage in certain
circumstances. For example Talaq, Ila, Zihar etc. This Act may be applied in two circumstances,
(1) where both the parties are Muslim, or (2) Any Muslim who is competent to contract declares
before the competent and such authority accepts his declaration.
Second law is the Dissolution of Muslim Marriages Act, 1939 which provides some special
grounds for divorce by Muslim women.
In consequences of the decision of Shayara Bano & Anr. vs. UOI & Ors,145Muslim Women
(Protection of Rights on Divorce) Bill, 2017 was passed in Lok Sabha on December 28,2017.
Salient features of Muslim Women (Protection of Rights on Divorce) Bill, 2017- There are
following salient features of this Bill-
(1) ALL instant and irrevocable divorces are void- The Bill makes all declaration of talaq,
including in written or electronic form, to be void and illegal. It is significant that it also covers
Talaq by electronic methods. For example Talaq by WhatsApp, Facebook etc. Here ‗Talaq‘ word
has been used in a limited sense. Here ‗Talaq‘ means Talaq-e-biddat or any other similar form of
talaq pronounced by a Muslim man resulting in instant and irrevocable divorce. Talaq-e-biddat
refers to the practice under Muslim personal laws where pronouncement of the word ‗talaq‘
thrice in one sitting by a Muslim man to his wife results in an instant and irrevocable divorce.
(2) Offence and penalty: The Bill makes declaration of talaq a cognizable and non-bailable
offence.146 A husband declaring talaq can be imprisoned for up to three years along with a fine.
(3) Allowances decided by First Class Magistrate: A Muslim woman against whom talaq has
been declared, is entitled to seek subsistence allowance from her husband for herself and for her
dependent children. The amount of the allowance will be decided by a First Class Magistrate.
First Class Magistrate also decides allowances under Code of Criminal Procedure, 1973.
Custody of minor children: A Muslim woman against whom such talaq has been declared, is
entitled to seek custody of her minor children. The determination of custody will be made by the
Magistrate.
PART FOURTH- ROLE OF INDIAN JUDICIARY
SARABAI VS RABIABAI,147 JUSTICE BATCHELOR, ―Divorce is good in law though bad
in Theology.‖
RASHID AHMAD V. ANISA KHATUN148 In this case, Privy Council held that
pronouncement of the triple Talaq by Ghiyas-ud-din constituted an immediate effect of divorce
145
146
Available at http://www.prsindia.org/billtrack/the-muslim-women-protection-of-rights-on-
marriage-bill-2017-5008. Visited on January 26, 2018.
147
Date of Judgment 9 December, 1905.
250
and the children born after the triple divorce were held to be illegitimate. In this cases, Halala
process was not followed and there was no evidence of remarriage.
JIAUDDIN AHMED V. ANWARA BEGUM,149 Justice Baharul Islam- A perusal of the
conclusion recorded by the High Court, leaves no room for any doubt, that the ‗talaq-e-biddat‘
pronounced by the husband without reasonable cause, and without being preceded by attempts of
reconciliation, and without the involvement of arbitrators with due representation on behalf of
the husband and wife, would not lead to a valid divorce.
MARIUM VS. MD. SHAMSI ALAM150- The wife went to her parental home due negligence
of her medical care. She denied to return home with husband and inconsequence of this, husband
uttered Talaq three times in one breath. Later on, he realized his wrong and revoked divorce
during Iddat period. In this case, Allahabad High Court interpreted the Muslim Law liberally and
held that, although, the word ‗Talaq‘ was uttered thrice, but since they were pronounced in one
breath, it is to be interpreted as one single pronouncement. So there was no divorce.
MOHD. AHMAD KHAN VS. SHAH BANO BEGUM151- In this case, Mohd. Ahmad Khan
divorced his wife with the help of ‗Talaq-e-biddat‘. But in this case main issue was regarding
maintenance.
RAHMAT ULLAH AND KHATOON NISA VS. STATE OF UTTAR PREDESH152- This
case was directly related to the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960.
Husband and wife both claimed that they had taken divorce by ‗Talaq-e-biddat‘ so their land did
not exceed ceiling limit. This judgment is ‗obiter dicta‘ on triple Talaq. In this case the Court
observed that irrevocable Talaq (Talaq-e-biddat) is unlawful because this kind of Talaq is against
the dictates of the Holy Quran and is also against the provisions of the Constitution of India. The
Court said that an irrevocable Talaq appears to be violative of the Fundamental Duties as
provided in Article 51-A(a), (e), (f) and (h) of the Constitution.
SHAMIM ARA VS. STATE OF UTTAR PRADESH153
The Supreme Court held that the three talaqs would be treated as a single talaq not a valid talaq.
In this case, Supreme Court did not debate the issue of validity of ‗talaq-e-biddat‘. In fact, the
question of validity of talaq-e-biddat‘ has never been debated before this Court. First time
validity of this kind of Talaq was discussed in case of Shayara Bano & Anr. vs. UOI & Ors. 154
In the Shamim Ara vs. State of Uttar Pradesh155 the Court was adjudicating a dispute regarding
maintenance under Section 125 of the Code of Criminal Procedure. The husband, in order to
avoid the liability of maintenance pleaded that he had divorced his wife. The liability to pay
maintenance was accepted, not because ‗talaq-e-biddat‘ – triple talaq was not valid in law, but
148
AIR 1932 PC 25 47.
149
Date of Judgment March 31, 1978, Gauhati High Court.
150
AIR1979All257
151
Date of Judgment on 23 April, 1985, Supreme Court.
152
Date of Judgment April 15, 1994. Allahabad High Court (Lucknow Bench).
153
AIR2002SC 3551
154
155
AIR2002SC 3551
251
because the husband had not been able to establish the factum of divorce. The Supreme Court
has disagreed with the established principles on the law of written divorce among the Muslims,
and has ruled that ‗talaq‘ to be effective has to be pronounced. The Court said that plea of Talaq
taken in an unsubstantiated written statement submitted before a Court not to be accepted as a
proof of Talaq.
SHAYARA BANO & ANR. VS. UOI & ORS.156 Several writ petitions were filed challenging
the validity of ―Talaq-e-biddat.‖ I am going to discuss facts of one case i.e. facts of Shayara
Bano case.
Facts- The petitioner-Shayara Bano, has approached this Court, for assailing the divorce
pronounced by her husband – Rizwan Ahmad on 10.10.2015, wherein he affirmed ―…in the
presence of witnesses saying that I gave ‗talak, talak, talak‘, hence like this I divorce from you
from my wife. From this date there is no relation of husband and wife. From today I am
‗haraam‘, and I have become ‗naamharram‘. In future you are free for using your life …‖. The
aforesaid divorce was pronounced before the two witnesses. The petitioner has sought a
declaration, that the ‗talaq-e-biddat‘ pronounced by her husband on 10.10.2015 be declared as
void ab initio. It is also her contention, that such a divorce which abruptly, unilaterally and
irrevocably terminates the ties of matrimony, purportedly under Section 2 of the Muslim
Personal Law (Shariat) Application Act, 1937 (hereinafter referred to as, the Shariat Act), be
declared unconstitutional. During the course of hearing, it was submitted, that the ‗talaq-e-
biddat‘ (-triple talaq), pronounced by her husband is not valid, as it is not a part of ‗Shariat‘
(Muslim ‗personal law‘). It is also the petitioner‘s case, that divorce of the instant nature, cannot
be treated as ―rule of decision‖ under the Shariat Act. It was also submitted, that the practice of
‗talaq-e-biddat‘ is violative of the fundamental rights guaranteed to citizens in India, under
Articles 14, 15 and 21 of the Constitution. It is also the petitioner‘s case, that the practice of
‗talaq-e-biddat‘ cannot be protected under the rights granted to religious denominations (-or any
sections thereof) under Articles 25(1), 26(b) and 29 of the Constitution. It was submitted, that the
practice of ‗talaq-e-biddat‘ is denounced internationally, and further, a large number of Muslim
theocratic countries, have forbidden the practice of ‗talaq-e-biddat‘, and as such, the same cannot
be considered sacrosanctal to the tenets of the Muslim religion.
JUDGMENT- This case was decided by Constitutional Bench. In Constitutional bench

representation of all religions were given. The case was decided by 3:2 Judges. Majority opinion
of Judges (1) Justice Joseph Kurian ( Christian) (2) Justice U.U. Lalit (Hindu), (3)Justice
R.F.Nariman (Parsi) Minority Opinion -(1) CJI Khehar( Sikh) (2) Justice Abdul Nazeer
(Muslim). Supreme Court by majority opinion held that ―Triple Talaq and Muslim Personal Law
(Shariat) Application Act,1937 so far related to triple talaq, up to the that extent are
unconstitutional.‖
Grounds o Decision- There are following grounds on the basis of which Supreme Court held
that ‗Talaq-e-biddat‘ is unconstitutional-
(1) Right to conscience & profession, practice and propagation are subject to health, public
order, morality and subject to the other provisions of this part, for example gender equality,
156
252
abolition of untouchability, right to life, traffic in human being and forced labour. Triple talaq is
against gender equality enshrined under Article 14. Article 15 also prohibits discrimination on
the ground of sex. Triple talaq is arbitrary, while arbitrariness is anti-thesis of equality.157
Gandhi vs. Union of India,158 Supreme Court held that right to life includes dignified life.
(3) Krishna Singh vs. Mathura Ahir (1981). In Mathura Case, Article 25 involves a separation
(4) There is no opportunity for reconciliation or regretting.
(5) 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of
the expression ―laws in force‖ in Article 13(1) and must be struck down as being void to the
extent that it recognizes and enforces Triple Talaq.
(6) As understood by the Privy Council in Rashid Ahmad, such Triple Talaq is valid even if it is
not for any reasonable cause, which view of the law no longer holds good after Shamim Ara
case.
Minority opinion was based on following grounds-
Firstly, that the practice of ‗talaq-e-biddat‘ has been in vogue since the period of Umar, which is
roughly more than 1400 years ago. Secondly, ‗talaq-e-biddat‘ though bad in theology, was
considered as ―good‖ in law. All learned counsel representing the petitioners were also
unequivocal, that ‗talaq-e-biddat‘ was accepted as a ―valid‖ practice in law. That being so, it is
not possible to hold, the practice to be invalid in law, merely at the asking of the petitioners, just
because it is considered bad in theology.
It was view of the Court that on this point, law must be enacted. This is a very significant
judgement for protection of interest of women. In consequences of this decision, Muslim Women
(Protection of Rights on Divorce) Bill, 2017 was passed in Lok Sabha.
PART FIVE- SUGGESTIONS
There are following suggestions regarding this topic-
(1) Appeasement on the basis of religion must be thrown out. Ratio of Judgment of Mohd.
Ahmad Khan vs. Shah Bano Begum159was tried to over thrown by passing The Muslim Women
(Protection of Rights on Divorce) Act, 1986. Condition of Muslim women is not satisfactory in
the matter of marriage and divorce. In Case of divorce, woman has limited grounds of divorce,
while husband has unlimited grounds of divorce. It may be expected that this time no policy of
appeasement would be followed.
157
158
159
253
(2) Polygamy and ‗halala‘ must also be prohibited. In several Muslim Countries Polygamy and
Halala has been abolished. For example Yemen which is a theocratic State, which declares
Islam to be the official religion. Muslims of the Sunni sect constitute its majority. Article 67 of
Decree on Personal Status 1992, after the expiry of Iddat, a direct remarriage between them will
be lawful. No need to go for Halala.
(3) Country needs Uniform Civil Code. There is no parity among all women living in India.
Regarding marriage, Hindu man and women are prohibited for bigamy while Muslim man is
allowed to get marriage more than one while woman is not allowed to get marriage more than
one. In Mohd. Ahmad Khan vs. Shah Bano Begum,160Supreme Court regretted that Article has
remained a ‗dead later‘ and emphasized : ― A common civil code will help the cause of national
integration by removing disparate loyalties to laws which have conflicting ideologies.‖161
In Case of Sarla Mudgal vs. Union of India,162 Supreme Court has directed the Prime Minister
Mr. Narsimha Rao to take fresh action for Uniform Civil Code.
(4) ―Ubi jus incertum ibi just nullum‖ means uncertain law is no law. On the point of irrevocable
talaq and Halala, there is no certain law.
(5) Muslim Women (Protection of Rights on Divorce) Bill, 2017 must be passed immediately.
(6) Need of awareness among society about effect of irrevocable talaq and Halala.
PART SIX- CONCLUSION
From the above discussion, it becomes very clear that Laws, Courts, Governments and Non-
Government agencies have played very crucial role in ameliorating the condition of women. But
something more is needed to be done. Role of the family and society cannot be ignored. It can
be said that by observing the above suggestions, condition of women can be improved and in real
sense, democracy can be established.
160
161
162
Date of Judgment on 10 May, 1995, Supreme Court.
254
POLITICAL JOURNEY OF ―IRON LADY‖ MRS. INDIRA GANDHI

An ―Iron Lady‖ proved that a woman is competent to take any decision even by ignoring
international pressure. Without name of Mrs. Indira Gandhi, celebration of International
Women Day would not be justified. There are following important points related to Mrs. Indira
Gandhi-
(1) LIFE OF INDIRA GANDHI- 19Nov. 1917- 31Oct.1984. Father- Pt. Jawahar Lal Nehru,
Mother-Kamala Nehru. Place of birth- Allahabad. Husband- Feroze Gandhi. Son- Rajeev Gandhi
and Sanjay Gandhi. Bharat Ratna Award-1971.
(1) Minister of Information and Broadcasting - 9June 1964-24 Jan.1966.(2) First Term- of Prime
Minister-24January1966-24March1977.(3) Second term of P.M.-14January 1980-31Oct.1984.
(2) MORARJI DESAI VS, INDIRA GANDHI- At the time of death of Honorable P.M. Lal
Bahadur Shatri (11January, 3.00A.M., 1966), she was Information and Broadcasting Minister.
Morarji Desai and She claimed for post of Prime Minister. Election was decided on 19 January,
1966. In 1966, total M.P. of Congress Party was 524. She secured 355 votes and Morarji Desai
secured only 169 Votes of M.P. She was elected for Prime Minister by defeating Morarji Desai.
She took oath on 24January1966. In the Indian History, one female in direct fight defeated a
male.
(3) ABOLITION OF FOOD ZONE SYSTEM- It was need due to famine occurred in 1965-
1966. She abolished food zone system for the proper distribution of food for all.
163
ASSISTANT PROFESSOR, MAHARAJA BALVANT SINGH P.G.COLLEGE,
GANGAPUR, VARANASI, . Dr.AGLC, Puducherry, Delhi University .
255
(4) ELECTION OF FOURTH LOK SABHA ELECTION, 1967- Under her leadership,
Congress Party won the Fourth Lok Sabha Election, 1967. But Congress President Mr. Kamraj
lost his seat and in this way leaders of Syndicate (Non-Hindi speaking influential leaders in
Congress Party) became poor. But due to internal conflict, Congress Party secured only 283seats
in Lok Sabha.
(5) NATIONALIZATION OF BANK - Her decision regarding nationalization of Bank had
been proved economic justice for poor people. Morarji Desai was opposing nationalization of
bank. He had to give resign from the post of Deputy Prime Minister and Finance Minister on 16
July,1969. In 1969, there were only 6000 Branches of Bank. Among Six Lakhs Villages, there
were only 500 Bank Branches. After his resignation, on 19July, 1969, she declared
nationalization of 14 banks. Before nationalization, Banks were limited only in urban areas.
After nationalization, 800% Bank Branches were increased.
(6) ELECTION OF V.V.GIRI -During the election of President, she supported V. V. Giri while
authorised candidate of Congress was Sanjeev Reddy. Leaders of Syndicate wanted to elect such
a President who could control Mrs. Indira Gandhi and demanded second vote of Jan Sangh,
Swantra Party and other Parties. Mrs. Gandhi Ji claimed that leaders of Syndicate were taking
support of communal forces. V.V.Giri won the election in second round on 20 August, 1969.In
this way, Indira Gandhi again established her supremacy.
(7) REMOVAL OF INDIRA GANDHI FROM PRIMARY MEMBERSHIP OF CONGRESS -
She was removed by Nizligappa, then Congress President from Primary Membership of
Congress Party for supporting Mr. V.V.Giri who was not authorized candidate of Congress Party
on 12 November, 1969 . Under her leadership, Congress Party was divided into two parts. Under
the leadership of Mrs. Indira Gandhi, Congress(R) was constituted and other group of Leaders of
Congress were formed as Congress (O). After this, she proved her majority in Lok Sabha with
the help of CPI, DMK , Akali Dal and some Independent Members by 306:104 Members. After
this, she became more powerful.
(8) ABOLITION OF PRIVY PURSE - In 1969, Government was paying 4 Crores Rs. She
dicided to stop payment of Privy Purse. She brought Privy Purse Constitutional Amendment
Bill,1969 for abolition of Privy Purse. In Lok Sabha on 2 Sep.1970 , it was passed by 339:154
Members. But in Rajya Sabha, it could not be passed due to lack of one vote. She with the help
of President, 'Presidential Order' cause to be passed for abolition of Privy Purse. It was
challenged in Supreme Court.
(9) FIFTH LOK SABHA ELECTION, MARCH 1971- On 27 Dec.1970, she declared for Lok
Sabha election while term of Lok Sabha was remaining for 14 months. In 1971, her Party
secured 352 seats out of 518 Lok Sabha Election. Reason of this election was "Garibi Hatao-
Abolition of Poverty". After victory, she was unopposed leader of country. At that time, there
was a famous slogan-" India is Indira, Indira is India". She won the election from Raebareli with
margin of one lakh votes. Her election from Raebareli was challenged by defeated candidate Raj
Narayan in Allahabad High Court. Under her regime, 24, 25 and 26 Constitutional Amendment
was passed and all the judgments which were hurdle in development of nation were nullified for
example Golak Nath Case( Amendment in FRs Case),R.C.Cooper Case (Bank Nationalization
case)and H. H. M. Madhav Rao Scindia Case (Privy Purse Case).
256
(10) DIVISION OF PAKISTAN- She divided Pakistan into two parts in December 1971. On 03
December 1971,Pakistan attacked over India by aircraft at Srinagar, Pathankot, Amritsar,
Jodhpur, Ambala and Agra. Longewal post was protected by 83 soldiers of 23 Punjab Regiment
.On 4Dec. Operation Tritend was launched. Indian navy was fighting at two place namely East
And West Pakistan. On 5Dec. Karachi Port was destroyed. Vikrant played vital role in this war.
Gazi was destroyed. On 6Dec. East Pakistan was recognised as a Bangladesh. It was declared by
Indira in Lok Sabha. USA was supporting Pakistan and raised the issue in Security Council but
USSR used it's Veto Power. Rechard Nixon, President of USA instigated China to threat attack
over India. Rechard Nixon sent its strongest navel forces to attack over India. For the help of
India, Russia sent its navel forces to stop USA forces. General Sam Maneksha was leading
Indian Army. 15 Dec. Indira wrote a letter to Rechard Nixon and wrote that for bad relations
between India and Pakistan, USA was responsible. On 16 Dec. Lt.Jagjit Singh Arora and Lt.
General A.A.K.Niyazi mate at Race Course Field in Dhaka. At 4.31P.M. Pakistani forces started
to surrender. It was very necessary to compelling for surrender otherwise, USA forces was about
to reach and it may converted into world war. India declared cease fire and Pakistani head
Aahya Khan have to resign and Julfikar Ali Bhutto became head of Pakistan. On 08 Jan.1972,
Shekh Mujiburhman was released from Pakistani Jai. In Shimla Agreement (2July,1972) India
released 93000 war prisoners and returned 5000 square miles field. India won the war but lost
everything in Shimla Agreement.
(11) NUCLEAR TEST AND ARYABHATA SATELLITE - In 1972, her party was ruling all
over India except Tamil Nadu. On 18 May, 1974, under her regime, First Nuclear Test was
conducted by ignoring the international pressure. 19 April,1975, India's First satellite Aryabhata
was launched. It was made by ISRO which had been established in 15 August,1969.
(12) ADMISSION OF SIKKIM INTO INDIA- In 1975, due to her intellect, Sikkim was
admitted into India on 16 May, 1975. It was admitted into India by 36th Constitutional
Amendment, 1975. Admission of Sikkim was very secret, even China knew after three days.
(13) INDIRA GANDHI IN ALLAHABAD HIGH COURT‘ WITNESS BOX-18 March1975-
She won the election from Raebareli with margin of one lakh votes in 1971. Her election from
Raebareli was challenged by defeated candidate Raj Narayan in Allahabad High Court. On
18March 1975, she had to come in witness-box of Allahabad High Court. In Indian Democracy,
she is a only Prime Minister to whom have to come in Court‘s witness box.
On 12 June,1975, Hon‘ble Justice Jagmohan Lal Sinha delivered his judgment and held that
Indira Gandhi had committed crime and she could be disqualified to fight election up to six
years. But Allahabad Court gave some time to go to appeal. She took sigh of some relief and
appeal was filed in Supreme Court. Hon‘ble Justice Krishna Ayer who was summer judge
(Other judges were on leave due to summer vacation) delivered his judgment and held that Indira
Gandhi would be Prime Minister but she could not cast her vote. After summer vacation, Indira
Gandhi vs. Raj Narayan case was decided and Court held that her election was valid but 39th
Constitutional Amendment was unconstitutional.
(14) EMERGENCY AND AFTER THIS- Unfortunately, she took one wrong decision
regarding imposition of National Emergency on the ground of Internal Disturbance National
Emergency under Article 352 was declared by President (Fakhruddin Ali Ahmed) on the ground
of ―External Aggression‖ on 25 June 1975. It was continue up to 21 March, 1977. During this
period, there were two emergency continue. Forced sterilization was criticized all over world. It
257
was result of capricious mind of Sanjay Gandhi. It was wrong decision of Mrs. Indira Gandhi
and her Party lost election in 1977.
(15) JAIL TO INDIRA GANDHI- After emergency Janata Party form the Government and
Morarji Desai became Prime Minister and Chaudhary Charan Singh and Mr. Shanti Bhushan
became Law Minister respectively. Shah Commission was constituted for giving report regarding
offence committed during emergency.
CBI was misused and she was arrested for one night and she was released. It created sympathy
in favour of Indira Gandhi. Parliamentary Privileged Committee found her guilty. Parliament
passed a resolution and she was sent to jail for one week.
(16) FORMATION OF CONGRESS (I) PARTY-After this election Congress was again divided
and her Party became Congress (I) and symbol of this was allotted "Palm of Hand" and her Party
won the First Election on this symbol in Bye-election in Andhra Pradesh. In 1980, after three
years, her Party again form the Government in Centre. Sarkaria Commission was constituted for
giving suggestion to improve the relation between Centre and State which submitted its report in
1987.
(17) OPERATION 'BLUE STAR' 05-06JUNE 1984- Indira Gandhi had not given prior
information to Mr. Gyani Zail Singh, then President. On 1st June, 1984, Punjab was handed to
Army. 'BLUE STAR' operation was launched by military and Jarnail Singh Bhindranwale and
other militant who had taken shelter in Golden temple were killed. . 83 Soldiers were martyred
and 248 were injured. 492 terrorist were killed. Terrorist had several sophisticated weapons
including anti-tank rocket launcher. Under her guidance, 'Blue Star' operation was successful.
But in this operation, some portion of temple was destroyed. Due to this, feeling of Sikh
Community hurted.
In the initial time Jarnail Singh Bhindranwale was used by Sanjay Gandhi and Gyani Zail Singh
for taking political mileage in Punjab and defeat Akali Dal.
(18) ASSASSINATION OF INDIRA GANDHI- On 31Oct.1984, she was assassinated by her
security guards. She died in AIMS, New Delhi. Great salute to this' Iron Lady' on this
International Women's Day.
SUMMARY
SMT. INDIRA GANDHI (19 NOV. 1917 – 31 OCT. 1984 ).
EXCELLENT WORK-
(1) External Aggression by Pakistan in 3nd Dec. 1971. In her regime, Pakistan was divided into
two parts (1971) namely (i) East Pakistan - Bangladesh & (ii) West Pakistan- Pakistan.
(2) She worked for poor people ,for example (i) Nationalization of Banks (1969) (ii) By 25th
Constitutional Amendment in 1971, it was provided that in case of conflict between fundamental
rights and Art. 39 (b) & (c), Art. 39 (b) & (c), ( DPSP) will prevail. (iii) Abolition of Privy Purse
by 26th Constitutional Amendmentin1971.
(3)Test of Nuclear bomb on 18 May 1974.
258
(4) By 36th Constitutional Amendment, Sikkim was admitted into India on 16 May 1975.
(5) Abolition of terrorism in Punjab (Blue Star operation on 5 -7 June1984) . On 1st June, 1984,
Punjab was handed to Army. 83 Soldiers were martyred and 248 were injured. 492 terrorist were
killed. Terrorist had several sopfiscated weapons including anti-tank rocket launcher.
SOME WRONG DECISIONS-
(1) Use of Article 356 in Kerala in 1959. She was elected as a Congress President in 1959 and
she played a vital role in removal of E. M. S. Namboodiripad Government ( Communist Party of
India from 5 April 1957 to 31 July 1959).
(2) Appointment of Hon‘ble Justice Ajit Nath Ray as CJI (26 April 1973 – 28 Jan. 1977)by
superseding three senior most judges and appointment of Hon‘ble Justice M.H.Beg by
superseding Hon‘ble Justice H.R. Khanna, senior most judge of Supreme Court in 29
January1977.
(3)Declaration of third emergency (25June1975-21March1977).
IN THE CONCLUSION I CAN SAY THAT SHE WAS A GREAT LEADER OF INDIA.
POLITICAL JOURNEY OF ―IRON LADY‖ MRS. INDIRA GANDHI

S.N. Important Years Important Events
1 19Nov. 1917 Birth of Indira Gandhi.Father- Pt. Jawahar Lal Nehru, Mother-
Kamala Nehru. Place of birth- Allahabad
2 1942 Marriage with Feroze Gandhi (Parsi)
3 1944 Birth of Rajiv Gandhi
4 1946 Birth of Sanjay Gandhi
5 1959, 1978-1984 President of Congress Party. Kerala Communist Government
was dismissed in 1959.
7 9June 1964-24 Minister of Information and Broadcasting
Jan.1966.
19 January, 1966. Election was decided on 19 January, 1966. In 1966, total M.P. of
Selection vs. Congress Party was 524. She secured 355 votes and Morarji Desai
Election secured only 169 Votes of M.P. She was elected for Prime
Minister by defeating Morarji Desai. She took oath on
24January1966. In the Indian History, one female in direct fight
defeated a male.
24January1966. She took oath as a Prime Minister on 24January1966.
164
259
8 24January1966- First Term of Prime Minister.

24March1977.
9 1966 ABOLITION OF FOOD ZONE SYSTEM- It was need due to
famine occurred in 1965-1966. She abolished food zone system
for the proper distribution of food for all.
10 ELECTION OF Under her leadership, Congress Party won the Fourth Lok Sabha
FOURTH LOK Election, 1967. But Congress President Mr. Kamraj lost his seat
SABHA and in this way leaders of Syndicate (Non-Hindi speaking
ELECTION, 1967 influential leaders in Congress Party) became poor. But due to
internal conflict, Congress Party secured only 283seats in Lok
Sabha.
11 16 July,1969. Morarji Desai had to give resign from the post of Deputy Prime
Minister and Finance Minister
12 19July, 1969 NATIONALIZATION OF 14 BANK
13 20 August, 1969 V.V.Giri won the election in second round on 20 August, 1969.
14 12 November, She was removed by Nizligappa, then Congress President from
1969 Primary Membership of Congress Party for supporting Mr.
V.V.Giri who was not authorized candidate of Congress Party on
12 November, 1969 .
Division of Under the leadership of Mrs. Indira Gandhi, Congress(R) was
Congress Party constituted and other group of Leaders of Congress were formed
as Congress (O).
No-Confidence After division of Party, she proved her majority in Lok Sabha with
motion in Lok the help of CPI, DMK , Akali Dal and some Independent
Sabha Members by 306:104 Members. After this, she became more
powerful.
15 Privy Purse ABOLITION OF PRIVY PURSE - In 1969, Government was

Constitutional paying 4 Crores Rs. She decided to stop payment of Privy Purse.
Amendment She brought Privy Purse Constitutional Amendment Bill,1969 for
Bill,1969 abolition of Privy Purse. In Lok Sabha on 2 Sep.1970 , it was
passed by 339:154 Members. But in Rajya Sabha, it could not be
passed due to lack of one vote. She with the help of President,
'Presidential Order' cause to be passed for abolition of Privy
Purse. It was challenged in Supreme Court.
27 Dec.1970 On 27 Dec.1970, she declared for Lok Sabha election while term
of Lok Sabha was remaining for 14 months.
FIFTH LOK In 1971, her Party secured 352 seats out of 518 Lok Sabha
SABHA Election. Reason of this election was "Garibi Hatao-Abolition of
ELECTION, Poverty". After victory, she was unopposed leader of country. At
MARCH 1971 that time, there was a famous slogan-" India is Indira, Indira is
India". She won the election from Raebareli with margin of one
lakh votes. Her election from Raebareli was challenged by
defeated candidate Raj Narayan in Allahabad High Court.
th th(Article 39(b)
24 ,25 Under her regime, 24, 25 and 26 Constitutional Amendment was
&(c) shall prevail over
passed and all the judgments which were hurdle in development
260
Articles 14,19(1)(f)&31.
of nation were nullified for example Golak Nath Case(
th(Abolition of
and 26 Amendment in FRs Case),R.C.Cooper Case (Bank Nationalization
Privy Purse)
Const. case)and H. H. M. Madhav Rao Scindia Case (Privy Purse Case).
Amend , 1971
DIVISION OF
PAKISTAN
03 December 1971 Pakistan attacked over India by aircraft at Srinagar, Pathankot,
Amritsar, Jodhpur, Ambala and Agra. Longewal post was
protected by 83 soldiers of 23 Punjab Regiment.
04 December 1971 On 4Dec. Operation Tritend was launched. Indian navy was
fighting at two place namely East And West Pakistan.
05 December 1971 Karachi Port was destroyed. Vikrant played vital role in this war.
06 December 1971 On 6Dec. East Pakistan was recognised as a Bangladesh. It was
declared by Indira in Lok Sabha.
15 December 1971 15 Dec. Indira wrote a letter to Rechard Nixon and wrote that for
bad relations between India and Pakistan, USA was responsible.
4.31P.M. General Sam Maneksha was leading Indian Army. On 16 Dec.
16 December 1971 Lt.Jagjit Singh Arora and Lt. General A.A.K.Niyazi mate at Race
Surrender of Course Field in Dhaka. At 4.31P.M. Pakistani forces started to
Pakistan surrender. It was very necessary to compelling for surrender
otherwise, USA forces was about to reach and it may converted
into world war. India declared cease fire. Effect of war on
Pakistan -Pakistani head Aahya Khan have to resign and Julfikar
Ali Bhutto became head of Pakistan.
08 Jan.1972, Shekh Mujiburhman was released from Pakistani
2July,1972 Shimla India released 93000 war prisoners and returned 5000 square
Agreement miles field. India won the war but lost everything in Shimla
Agreement.
1972 In 1972, her party was ruling all over India except Tamil Nadu.
18 March1975 INDIRA GANDHI IN ALLAHABAD HIGH COURT‘
WITNESS BOX-18 March1975- She won the election from
Raebareli with margin of one lakh votes in 1971. Her election
from Raebareli was challenged by defeated candidate Raj Narayan
in Allahabad High Court. On 18March 1975, she had to come in
witness-box of Allahabad High Court before Justice Jagmohan
Lal Sinha. In Indian Democracy, she is a only Prime Minister to
whom have to come in Court‘s witness box.
18 May, 1974 On 18 May, 1974, under her regime, First Nuclear Test was
conducted by ignoring the international pressure.
19 April,1975 19 April, 1975, India's First satellite Aryabhata was launched. It
was made by ISRO which had been established in 15 August,
1969.
16 May, 1975 ADMISSION OF SIKKIM INTO INDIA- In 1975, due to her
intellect, Sikkim was admitted into India on 16 May, 1975. It was
admitted into India by 36th Constitutional Amendment, 1975.
Admission of Sikkim was very secret, even China knew after
261
three days.
On 12 June,1975, On 12 June,1975, Hon‘ble Justice Jagmohan Lal Sinha
delivered his judgment and held that Indira Gandhi had committed
crime and she could be disqualified to fight election up to six
years. But Allahabad Court gave some time to go to appeal. She
took sigh of some relief and appeal was filed in Supreme Court
24 June 1975 Hon‘ble Justice Krishna Ayer who was vacation judge (Other
(One day before judges were on leave due to summer vacation) delivered his
Emergency) judgment and held that Indira Gandhi would be Prime Minister
but she could not cast her vote. After summer vacation, Indira
Gandhi vs. Raj Narayan case was decided and Court held that her
election was valid but 39th Constitutional Amendment was
unconstitutional.
25 June 1975 Speech of Jai Prakash Narayan in field of Ram Lila in Delhi. Five
Laks people had gathered and leaders of all opposition parties.
11.20P.M. 25 June Unfortunately, she took one wrong decision regarding imposition
1975 of National Emergency on the ground of Internal Disturbance
National Emergency under Article 352 was declared by President
(Fakhruddin Ali Ahmed) on the ground of ―External
Aggression‖ on 25 June 1975. It was continue up to 21 March,
1977.
JAIL TO INDIRA JAIL TO INDIRA GANDHI- After emergency Janata Party form
GANDHI the Government and Morarji Desai became Prime Minister and
Chaudhary Charan Singh and Mr. Shanti Bhushan became Law
Minister respectively. Shah Commission was constituted for
giving report regarding offence committed during emergency.
CBI was misused and she was arrested for one night and she was
released. It created sympathy in favour of Indira Gandhi.
Parliamentary Privileged Committee found her guilty. Parliament
FORMATION OF passed a resolution and she was sent to jail for one week.
CONGRESS (I) FORMATION OF CONGRESS (I) PARTY-After this election
PARTY Congress was again divided and her Party became Congress (I)
and symbol of this was allotted "Palm of Hand" and her Party won
the First Election on this symbol in Bye-election in Andhra
Pradesh. In 1980, after three years, her Party again form the
Government in Centre. Sarkaria Commission was constituted for
giving suggestion to improve the relation between Centre and
State which submitted its report in 1987.
(17) OPERATION 'BLUE STAR' 05-06JUNE 1984- Indira
Gandhi had not given prior information to Mr. Gyani Zail Singh,
then President. On 1st June, 1984, Punjab was handed to Army.
'BLUE STAR' operation was launched by military and Jarnail
Singh Bhindranwale and other militant who had taken shelter in
Golden temple were killed. . 83 Soldiers were martyred and 248
were injured. 492 terrorist were killed. Terrorist had several
262
sophisticated weapons including anti-tank rocket launcher.

Under her guidance, 'Blue Star' operation was successful.
14January 1980- Second Term of Prime Minister.
31Oct.1984.
OPERATION OPERATION 'BLUE STAR' 05-06JUNE 1984- Indira Gandhi
'BLUE STAR' 05- had not given prior information to Mr. Gyani Zail Singh, then
06JUNE 1984 President. On 1st June, 1984, Punjab was handed to Army. 'BLUE
STAR' operation was launched by military and Jarnail Singh
Bhindranwale and other militant who had taken shelter in Golden
temple were killed. . 83 Soldiers were martyred and 248 were
injured. 492 terrorist were killed. Terrorist had several
sophisticated weapons including anti-tank rocket launcher.
Under her guidance, 'Blue Star' operation was successful.
On 31Oct.1984, On 31Oct.1984, she was assassinated by her security guards. She
ASSASSINATION died in AIMS, New Delhi. Great salute to this' Iron Lady' on this
OF INDIRA International Women's Day.
GANDHI-
Symbol of 1950-1969-―Couple of Oxen‖
Congress Party
Symbol of 1969-1977-―Cow and Calf‖
Congress (R)
Party
Symbol of 1977- Till now (11March,2018)―Open Palm of Hand‖
Congress (I)
Party
HISTORY OF BHARATIYA JANATA PARTY,( BJP)

There are two types of organizations namely, (1) Non-political Organization and (2) Political
Organization.
(1)Non-political Organization is Sangh which was renamed as Rashtriya Swayamsevak Sangh
(RSS)
(2) Political Organizations are Bharatiya Jana Sangh (BJS), Janata Party, and Bharatiya
Janata Party,( BJP)
YEAR ESTABLISHMENT FOUNDER AND IMPORTANT POINT
OF PARTY
(1) NON-POLITICAL
ORGANIZATION
27 Sep.1925 Establishment of Sangh Founder of Sangh was Kesav Rao Balram
Hedgewar
165
ASSISTANT PROFESSOR, MAHARAJA BALVANT SINGH P.G. COLLEGE,
GANGAPUR, VARANASI.
263
1926 ―Sangh‖ was renamed as Rashtriya Swayamsevak Sangh (RSS). RSS is not a
Rashtriya Swayamsevak political party.
Sangh (RSS).
(2) POLITICAL
ORGANIZATION
Oct. 1951 Bharatiya Jana Sangh Founder of Bharatiya Jana Sangh (BJS) Dr. Shyama
(BJS) Prasad Mukherjee
25June Dr. Shyama Prasad ―Nahi Chalengey Ek Desh me Do Vodhan, Do
1953 Mukherjee. Pradhan, Do Nishan‖ ―In one country, two law, two
head and two flag are not allowed.‖ He opposed
permit policy to enter into Jammu and Kashmir. He
was detained for 45 days for entering into Jammu
and Kashmir without permit. During detention, he
died in suspicious manner, and then Government
directly sent him West Bengal. There was no proper
post mortem of his dead body.
1977 Bharatiya Jana Sangh Two leader of Bharatiya Jana Sangh (BJS), namely
(BJS) with other Parties Atal Bihari Ji and Adwani Ji became Foreign
under leadership of Jay Minister and Information and Broadcasting Minister
Prakash Narayan respectively.
became part of Janata
Party.
6 BJP (Bharatiya Janata Janata Party routed in the election and it paved for
April,1980 Party) emergence of BJP (Bharatiya Janata Party). Its
President was Atal Bihari Bajpayee.
POLITICAL JOURNEY OF BHARATIYA JANATA PARTY

Political journey of this Party can be divided into three parts- (1) 1951-1977, Bharatiya Jana
Sangh (BJS) (2)1977-1980 Janata Party, and (3) 1980- Till now, Bharatiya Janata Party
(BJP)
(1) 1951-1977, BHARATIYA
JANA SANGH (BJS)
First Lok Sabha 1952 3 Seats
Second Lok Sabha 4 Seats
1957
Third Lok Sabha 1962 14 Seats
Fourth Lok Sabha 1967 35 Seats
Fifth Lok Sabha 1971 22
(2) 1977-1980 JANATA PARTY
Sixth Lok Sabha 1977 295 Janata Party (Bharatiya Jana
Sangh and Other Party)
Seventh Lok Sabha 31 Seats. Janata Party (Bharatiya
1980 Jana Sangh and Other Party
1980- Till now BJP (Bharatiya
264
Janata Party)
Eighth Lok Sabha 1984 Two seats
Ninth Lok Sabha 1989 85 Seats
Sep. 1990 Adwani Ji started Rath Yatra
from Somnath Temple to Ayodhya
Tenth Lok Sabha 1991 120 Seats
06Dec. 1992 Demolition of Babari Mosque
Eleventh Lok Sabha 161 Seats First Prime Minister OF
1996 BJP, Mr, Atal Ji for 13 Days.
Twelve Lok Sabha 182 Seats Prime Minister, Mr, Atal Ji
1998 for 13 Months.
Thirteenth Lok Sabha 182 Seats Prime Minister, Mr, Atal Ji
1999 for near about five years.
Fourteenth Lok Sabha 138 Seats
2004
Fifteenth Lok Sabha 116 Seats
2009
Sixteenth Lok Sabha 282 Seats Narendra Modi Ji, First Non-
2014 Congress Leader who
secured full majority in Lok
Sabha Election.
I am not supporter of BJP. But I have to learn a lot of things from this Party. It clearly
established that in case of selected vs. elected, elected would always be better option. Selected,
here, means person who are appointed for any post without any competition. For example, First
Prime Minister Pt. Jawar Lal Nehru Ji. He was given preference over Sardar Ballabh Bhai Patel
Ji. Nehru Ji was selected while Patel Ji was elected, although elected was rejected. Another
example is Congress President Rahul Ji is selected while Modi Ji is elected amongst competitive
leaders of BJP. Family wise parties are best example of selected leaders. Interest of the people is
in development of nation rather than development of any family or caste. India need
development at grassroots level not only at tongue.
Journey of BJP may be divided into three parts, namely,(1) Bharatiya Jana Sangh, (BJS) 1951-
1977.(2) Merger of BJS into Janata Party 1977-1980,(3) Formation of BJP,6April, 1980- 04
March 2018.
1952, In First Lok Sabha, three candidates of BJS won the election. FIRST TIME, Atal Ji and
Adwani Ji became Foreign Minister and Information and Broadcasting Minister respectively as
leader of Bharatiya Jana Sangh.In Eighth Lok Sabha Election ,BJP won two seats, and this Party
, in 16th Lok Sabha Election won 284 seats. Till today, it has formed Government in 20 States,
and there is no sign in future that any person or Party has capability to challenge this Party.
But this should always learn from history that any decision against democracy may destroy this
party within few years. History of India , 1972, Congress(I) was Ruling Party all over India
except Tamilnadu, but some undemocratic decision and willingness of destroying the reputation
265
of institutions, uprooted the Congress in 1977 from Centre and States all over India. I hope this
Party will learn sth from history also. Power of common men cannot be underestimated. I hope
this Party will win the election all over India and would follow the Principal ‗NATION FIRST‘.
I have tried to search relevant point regarding this topic. In case of any wrong information,
please improve my knowledge. Whole credit of success of this Party goes to Ideology, hard work
and dedication of workers of this Party. Congratulations to all persons who supported this Party.
SELECTED VS. ELECTED (NEHRU JI VS. PATEL JI FOR POST OF PRIME
MINISTER).
The last date for the nominations for the post of the President of Congress, and thereby the first
Prime Minister of India, was April 29, 1946. Let us not forget that by this time Gandhiji had
already made his choice widely known. Still 12 out of 15 Pradesh Congress Committees, the
only legal bodies having power to nominate and elect President of the Party, nominated Sardar
Vallabhbhai Patel. The remaining three may not have nominated Patel but then they did not
nominate anyone else also including Jawaharlal Nehru. Thus, no Pradesh Congress Committee
proposed the name of Jawaharlal Nehru even on the last day of filing the nominations i.e. April
29, 1946. J.B Kripalani took the lead in finding the proposers and seconders for Nehru‘s
candidacy, in deference to Gandhi‘s wishes, during the Working Committee meeting on
29.04.1946 in New Delhi. Kripalani succeeded in getting a few Working Committee members
and local members of AICC to propose Nehru‘s name for the post. Though, Gandhiji knew
Jawaharlal‘s nomination almost missed the April 29 deadline, and also even he could not get at
least one Pradesh Congress Committee, the only legitimate body entitled to elect the President of
the Congress, to nominate Jawaharlal.
However once Nehru was formally proposed by a few Working Committee members, efforts
began to persuade Sardar Patel to withdraw his nomination in favour of Jawaharlal. Patel sought
Gandhiji‘s advice who in turn asked him to do so and ―Vallabhbhai did so at once.‖ But it must
be mentioned that before advising Patel to withdraw Gandhiji had given enough hint to Nehru to
allow the legitimate nomination of Sardar Patel to go through the process. Gandhiji said to
Nehru: ―No PCC has put forward your name…only [a few members of] the Working Committee
has.‖ This remark of Gandhiji was met by Jawaharlal with ―complete silence‖. Only after
Gandhiji was informed that ―Jawaharlal will not take the second place‖ he asked Patel to
withdraw. Dr. Rajendra Prasad lamented that Gandhiji ―had once again sacrificed his trusted
lieutenant for the sake of the ‗glamorous Nehru‘ and further feared that ―Nehru would follow the
British ways.‖166
166
Available at http://www.vifindia.org/article/2012/june/05/choosing-the-first-prime-minister-
of-india#comment-18460, Visited on 05/03/2018.
266
POLITICAL JOURNEY OF MR. MULAYAM SINGH YADAV

MULAYAM SINGH YADAV
PERSONAL LIFE
Date of Birth 22 November ,1939, Village Saifai, District- Itawa, Uttar Pradesh
Parents Mr. Sughar Singh Yadav and Murty Devi
Spouse (1) Late Malati Devi M/O Akhilesh Yadav (Politician)
(2)Sadhana Gupta M/O Pratik Yadav(Wrestler)
Neta Ji/ ‗Little Napoleon‘ Fondly and reverently addressed as Netaji. He was called ‗Little Napoleon‘
by the former Prime Minister of India, Mr. Chaudhary Charan Singh.
Shri Ram Manohar Lohia He was greatly influenced by Shri Ram Manohar Lohia and joined the
(1910-1967) great socialist leader's movement during the 1950s to fight for farmers‘
rights.
POLITICAL LIFE IN STATE
THREE TIMES CHIEF MINISTER
FIRST TERM (Janata Dal and 05 Dec.1989- 24June 1991. Janata Dal secured 208 in 1989 while this
BJP. Party secured only 92 seats in 1991 election.
Janata Dal And Congress)
SECOND TERM (SP and 05Dec.1993-03 June 1995. Samajwadi Party-109, BSP-67
BSP). Out side support of BSP.
167
267
THIRD TERM 29Aug. 2003-11May 2007
PART- ONE 1967- 4 Oct. 1992( Till formation of Samajwadi Party)
1967 First Time –MLA

1974 Second Time-MLA
1975-1977 Jail During Emergency. 19 Months in Jail of Itawa.
1977 Third Time-MLA
1977 President of Lok Dal Party
1977- After emergency, Janata Party formed Government in Uttar Pradesh and
First Time Minister in State. Mr. Mulayam Singh Yadav was appointed as Minister Cooperative
Husbandry and Village Industrial Department. Mr. Ram Naresh Yadav was
then Chief Minister of Uttar Pradesh.
1980 President of Janata Dal in State
1980 Defeat for MLA seat
1982 MLC
1982-1985 Opposition Leader in Legislative Council
1985 MLA
1985-1987 Leader of Opposition in Legislative Assembly
1989-1991 First Time Chief Minister from the Janata Dal with the outside support
Janata Dal and BJP of BJP . BJP was supporting Janata Dal in Center and State.
Nov.1990 BJP withdrew support from Mr. Mulayam Singh Yadav‘s Government as
well as B.P.Singh Government on the issues of firing at Kar Sewaks
30Oct.1990.
1990 Congress supported Mr. Mulayam Singh Yadav. But after some time,
Congress also withdrew support from Mr. Mulayam Singh Yadav
FIRING IN AYODHYA 30 First Term of Mr. Mulayam Singh Yadav as C.M.

OCT. 199O and 02 Nov.1990 Attack on Babari Mosque and Mr. Mulayam Singh Yadav on 30 October,
1990. Mandal vs. Kamandal - For taking political mileage, ―Ram Rath
Yatra‖ was started by Mr. Adwani and such situation was created on 30
Oct. 1990, that then Chief Minister Mr. Mulayam Yadav had to take hard
action to maintain peace and security in State. On 30 Oct. 1990, Bus was
hijacked by several Car Sewaks and they by breaking four barricade reach
on the disputed place and started to hoist saffron flag on tomb on Mosque.
State Government had given several times warning since several days.
Several Kar Sevaks were killed which was necessary for maintenance of
norms of Constitution of India.
Government shouldn‘t have thrown several dead bodies in Sarayu River.
Those dead bodies should have been returned to relatives.
But , I am full of sorrow that innocent people could not understand policies
of BJP,RSS, and BHP and were killed.
HISTORY FIRING IN AYODHYA 30 OCT. 199O and 02 Nov.1990
(1)Implementation of Mandal On 07August 1990- Mr. B.P.Singh, the then Prime Minister declared
Commission reservation for OBC in Parliament on 07August,1990. After this, all over
268
India, agitation started this decision of V.P.Singh.

(2) Confusion of BJP and RSS BJP was unable to decide its stand on this point. If BJP supported
reservation then there was chance to lose hard supporter of BJP i.e. General
Category. If BJP opposed reservation then there was chance to lose support
of BJP i.e. OBC(52% of Population).
Mandal vs. Kamandal BJP knew very well that reservation was being given on the basis of caste.
So, it decided to provoke religion, because population of Hindu was 80%
and population of Muslim was near about 14%. BJP chose Kamandal
(Hindu-80% Population) rather than Mandal (Reservation for OBC). BJP
was supporting Government B.P.Singh.
10 November, 1989 Inguaration of establishment of ―Ram Janmbhumi Temple‖
25September, 1990 BJP‘s President Mr. Lal Krishna Adwani to provoke the sentiment of
innocent people for political mileage started ―Ram Rath Yatrya‖ from
―Som Nath Temple‖,Gujarat to Birth place of Lord Ram, Ayodhya. Near
about 10,000 K.M. in ten States and near about 200 Parliamentary
Constituencies. Planning was to reach Ayodhya on 30 Oct.1989.
22 Oct.1990 Mr. Mulayam Singh Yadav clearly declared in the meeting of Chief
Ministers of several States with Prime Minister, V.P.Singh that he would
not allow entry of ―Ram Rath Yatrya‖ in Uttar Pradesh for maintaining
peace and security in State.
23 Oct.1990, 04A.M. Arrest of Lal Krishna Adwani in Samastipur by Mr. Lalu Prasad Yadav‘s
Government. Lalu Yadav claims that it was his own decision, while Mr.
B.P.Singh claimed that it was done on his direction.
24 Oct.1990, BJP withdrew support from Mr. B.P.Singh Government and Mr. B.P.
Singh (2Dec.1989- 10Nov.1990) lost majority in House and had to resign
from the post of Prime Minister. In fight between Mandal vs. Kamandal,
Kamandal won the match. Mr. Chandra Shekhar came in power with
support of Congress Party.
30 Oct. 1990 Mr. Mulayam Singh Yadav deployed armed forces around ― Babri
Good decision was taken by Mosque‖. Kar Sevaks were being provoked by leaders and these Kar
then Chief Minister. Sewaks started to move toward Babri Mosue/ Birth Place of Lord Ram. One
bus in which there were several Kar Sewaks was hijacked by one saint by
throwing driver of bus. This bus broke four barriers and reached near
to disputed place. By following this bus, several Kar Sewaks reached to
disputed place. After this several Kar Sewaks reached at tomb of Masque
and started to hoist symbol (flag) of BJP and BHP.
To control these people, Government had no option except to order for
firing and to maintain peace and security of State and to protect secular
character of country.
Several Kar Sewaks were killed among them there were some innocent
people.
02 Nov. 1990 Again several Kar Sewaks started to gather at disputed place and conflict
started between police and Kar Sewaks. Some Kar Sewaks were again
killed.
Benefit for BJP BJP became very happy because , it was hidden agenda of this Party.
After this accident, BJP formed government in Uttar Pradesh and secured
269
good number in Parliament.

Election in Uttar Pradesh, 1991 BJP won the election in 1991 due to sentiment of killing of some Hindus
in Ayodhya. Mr. Kalyan Singh took oath on 24 June 1991.
First Time C.M. of BJP. In 1991 election BJP secured 221 seats and formed the Government under
1989-57 Seats, leadership of Mr. Kalyan Singh. It was the first time when BJP formed the
1991-221Seats Government in Uttar Pradesh. In 1989 election, BJP had secured only 57
1993-177. seats. In 1993 BJP secured only 177 seats.
Samajwadi Party was established on 04 Oct.1992. On 06 Dec.1992,
PART-2 ―Babari Mosque‖ was demolished during regime of Mr. Kalyan Singh.
SUMMARY While during regime Mr. Mulayam Singh Yadav, it was impossible on 30
Oct.1990. After demolition of Babari Mosque, President Rule was imposed
on 06Dec.1992. It became very clear that election in State may be declared
at any time. BSP which has been established on 14 April, 1984 claimed to
contest election with Samajwadi Party. On 26 Dec.1992, Mr. Kanshi Ram
and Mr. Mulayam Singh Yadav addressed jointly a rally in Mainpury.
Public started to chant, ―Mile Mulayam Kanshi Ram, Hwa Men Ud Gye Jai
Shri Ram‖. In 12th Legislative Assembly (1993-1996) election , position of
Parties were. BJP-177, Samajwadi Party-109, BSP-67. Mr. Mulayam Singh
Yadav formed a Government with out side support of BSP. But, BJP
convinced Kanshi Ram Ji to withdraw support from SP. On 01June,1995,
Miss. Mayawati submitted two letters to Governor regarding withdrawing
support from S.P. and to to form Government with the help of other Parties
esp. BJP. On 2nd June, 1995 , she was doing meeting with her supporters to
form Government in State Guest House Lucknow. Some leaders and goons
of SP reached at Guest House and started to threat leaders of BSP and some
leaders were beaten by SP‘s leaders. Miss Mayawati suddenly entered into
the room and from inside, she closed the room. Supply of water and
electricity were stopped to pressurize leaders of BSP to join SP so that
Government could be saved.
It was very wrong decision of Mr. Mulayam Singh Yadav. He was removed
from the post of Chief Minister. On next day (03June1995), Miss.
Mayawati took oath on 20June , she proved majority in House on
20June,1995
Part-2 4 Oct.1992- 3 June 1995. Establishment of Samajwadi Party and Second
Term of Mr. Mulayam Singh Yadav as a Chief Minister.
4 Oct.1992 Establishment of Samajwadi Party. Mr. Mulayam Ji split off from
Janata Dal and formed new Party i.e. Samajwadi Party.
05Dec.1992 Address to Public by Mr. Atal Bihari Bajpeyee and Adwani Ji in Lucknow
06 Dec.1992.12.02P.M Babari Mosque was demolished and in this was ―Black Day‖ was added
C.M .Kalyan Singh in history Constitution of India. Lal Krishna Adwani, Murali Manohar
P.M.-P.V.Narsimha Rao Joshi, Uma Bharati , Vijay Raje Sindhiya and Pramod Mahajan were
present. All of them were very and hugging to each other.
06 Dec.1992 On this date Babari Mosque was demolished and Mr. Kalyan Singh had
to resign.
Kalyan Singh had already clarified that in any circumstances firing
should not be allowed. This order was written. Collector did not allow
270
forces for firing. By this reason, there were a lot of confidence in Kar
Sewak.
Resignation of Mr. Kalyan After this event, Article 356 was used and President‘s Rule was imposed
Singh in Uttar Pradesh.
06Dec.1992- 04Dec.1993 President Rule (Article 356).
Rioting in several States After demolition, rioting occurred in several States.
Librahan Commission The Liberhan Commission (Liberhan Ayodhya Commission of Inquiry)
(1992-2009) was a long-running inquiry commissioned by the Government of India to
investigate the destruction of the disputed structure Babri
Masjid in Ayodhya in 1992. Led by retired High Court Judge M. S.
Liberhan, it was formed on 16 December 1992 by an order of the Indian
Home Union Ministry after the demolition of the Babri Masjid in Ayodhya
on 6 December and the subsequent riots there. The one-man commission
submitted the report to Prime Minister Manmohan Singh on 30 June 2009.
26 Dec.1992( Coalition between Joint rally of SP( Mulayam Singh Yadav) and BSP ( Mr. Kanshi Ram)
SP and BSP)
1993 Election BJP-177, Samajwadi Party-109, BSP-67.
th
(12 Legislative Assembly
(1993-1996)
04 Dec.1993 Coalition won the election and Mr. Mulayam Singh Yadav took oath for
second term.
05Dec.1993-03 June 1995 SECOND TERM (SP and BSP)

May 1995 BJP had given a letter for support to Kanshi Ram to form a new
government after withdrawing support from S.P.
01June 1995 Miss. Mayawati reached to Lucknow. She gave two letter to Governor Mr.
Two letters to Governor Moti Lal Bora . Through one letter she informed that she had withdrawn
support from Samajwadi Party, and through second letter she claimed to
form Government with support of BJP and other Parties.
02June 1995 STATE GUEST HOUSE INCIDENT
Mr. Mulayam Singh Yadav When Mr. Mulayam Singh Yadav knew about letters of Miss. Mayawati,
he became very angry. At that time , total MLAs of BSP were 67. Out of
67, 12 members had become ready to support to Sp. But due to anti-
defection law, at least one-third members should split off from any party.
Miss. Mayawati was doing meeting with its supporters in State Guest
House, Lucknow.
Mr. Mulayam Singh Yadav send his some party leasers including some
goons to manage some more MLAs of BSP so that Government could be
saved. These persons started to attack over leaders of BSP and Miss
Mayawati Ji managed in a room by bolting inside that room.Water supply
and water were stopped. After a lot of security , she came out side and next
day, she took oath as Chief Minister of Uttar Pradesh.
Mulayam Singh Yadav was removed by Governor Moti Lal Bora.
BSP and BSP STATE GUEST HOUSE INCIDENT provided an opportunity to BSP and
BJP to come together.
271
Miss. Mayawati as a Chief First Time Chief Minister (03June1995-18Oct.1995), with support of
Minister BJP.
20June 1995 Miss. Mayawati proved majority in Vidhan Sabha.
PART -3 POLITICS IN CENTER
1996 MP(Member of Lok Sabha)

1996-1998 Defence Minister of India (Janata Dal, United Front)
1998 Re-elected for MP(Member of Lok Sabha)
1999 Re-elected for MP(Member of Lok Sabha)
Part-4 (2003-2007) Third Times Chief Minister of Uttar Pradesh
Relation between Parliamentary Privileges (Articles 105 & 194) and Fundamental Rights
Introduction- Absolute privileges have been conferred to ‗Law –makers‘ who also represent
people of certain territory. This privileges have been conferred so that without any hesitation,
they can raise the problem of their constituency and demand solution. It may be noted that under
Article 194 in the matter of privileges the position of State Legislature is the same as that of the
Houses of Parliament. Therefore what is said here, in the context of Article 105, applies mutatis
mutandis to the State Legislatures as well. For a regulatory body like Parliament, the freedom of
speech is of the utmost importance and a full and free debate is on the essence of Parliamentary
democracy.169 The freedom of speech that is available to Members of Parliament under Article
105(1) is wider in amplitude than the right to freedom of speech and expression guaranteed
under Article 19(1)(a) since the freedom of speech under Article 105(1) is not subject to the
limitations contained in Article 19(2).
ABSTRACT- Relation between Parliamentary Privileges and Fundamental Rights. Strode
(1512), Sir John Eliot (1629) fought against king for ‗Parliamentary Privileges‘. Article 9 of the
Bill of Rights, 1689 established 'Parliamentary Privileges'. In the Case of Pandit M.S.M.
Sharma vs. Sri Krishna Sharma (Searchlight Case, 1958,) S.C. held that Article 19(1) (a)
168
ASSISTANT PROFESSOR, MAHARAJA BALVANT SINGH P.G. COLLEGE,
GANGAPUR, VARANASI.
169
P.V. Narsimha Rao vs. State (Cbi/Spe), Date of Judgment,17 April, 1998
272
shall be subject to Articles 105&194. In the advisory opinion of ‗In The Matter of: Under
Article 143... Vs. Unknown (Keshav Singh Case), Supreme Court said that Article 21 is not
subject to Articles 105 and 194. In the case of P.V. Narsimha Rao vs. State (Cbi/Spe),1998,170
Supreme Court held that a member of Parliament is a public servant under Section 2 (c) of
the Prevention of Corruption Act, 1988.
SOME LEADING CASES
YEARS NAME OF CASES IMPORTANT POINTS
FREEDOM OF ENGLAND
SPEECH
1512 Strode Strode was imprisoned by the Order of the Stannary
Court for having introduced into Parliament certain Bills
which the Crown did not like.
Three weeks later, Strode was released and an Act was
passed declaring that ―all suits, accusements,
punishment, etc., against all persons …of any Parliament
…for speaking, reasoning or declaring of any matter or
matters concerning that Parliament should be utterly void
and of no effect.‖171
1629 Sir John Eliot 1629-Proceedings were taken in the King‘s Bench
King‘s (1592-1632) Case. against three members of the House of Commons, who
Bench. He was also member were charged with seditious speeches, contempt of the
1668 House of Parliament. King in resisting the adjournment of the House and with
of Lords Rex v Eliot, Hollis conspiracy to keep the Speaker in the chair by force.
and Valentine. Sir John Eliot was convicted by the Court of King‘s
House of Lords, Bench for seditious speeches made in the House of
said ―Words spoken Common.
in Parliament should In 1668, the House of Lords reversed his conviction,
only be judged restating the law in Strode‘s case, affirming that the
therein.‖172 conviction ―…was an illegal judgment, and against the
freedom and privilege of Parliament‖.
1688/1689 The Bill of Rights, The Bill of Rights, also known as the English Bill of
1688/1689. Both Rights, is an Act of the Parliament of England that deals
date are correct. In with constitutional matters and sets out certain basic civil
old style, 1688. rights. It received the Royal Assent on 16 December
1689.
Article 9 The Bill of Rights, Article 9, ―That the freedom of speech and debates or
1989, Article 9 proceedings in Parliament ought not to be impeached or
questioned in any court or place out of Parliament.‖
Absolute FREEDOM OF INDIA
170
Date of Judgment,17 April, 1998
171
Singh, M.P., V.N.Shukla‟s Constitution Of India, p.n.382, Eastern Book Company ,
Lucknow,10edition ,2001).
172
273
Privilege SPEECH
ARTICLE 105(1) ―Subject to the provisions of this Constitution and to
the rules and standing orders regulating the procedure
of Parliament, THERE SHALL BE FREEDOM OF
SPEECH IN PARLIAMENT.‖
Restriction of Freedom of Speech is subject to the provisions of (1) this
freedom of Speech Constitution and (2) to the rules and standing orders
PARLIAMENT regulating the procedure of Parliament.
ARTICLE 194(1) Subject to the provisions of this Constitution and to the
rules and standing orders regulating the procedure of
the Legislature, THERE SHALL BE FREEDOM OF
SPEECH IN THE LEGISLATURE OF EVERY
STATE.
Restriction of Freedom of Speech is subject to the provisions of (1) this
freedom of Speech Constitution and (2) to the rules and standing orders
LEGISLATURE, regulating the procedure of Legislature.
ARTICLE 105(2) ―No member of Parliament shall be liable to any
proceedings in any court in respect of anything said or
any vote given by him IN Parliament or any committee
thereof, and no person shall be so liable in respect of the
publication by or under the authority of either House of
Parliament of any report, paper, votes or proceedings.‖
Clauses (1) and (2) Clauses (1) and (2) of Article 105 are interlinked, while
of Article 105 are clause (1) secures to the Members freedom of speech in
interlinked.173 Parliament, clause (2) safeguards and protects the said
freedom by conferring immunity on the Members from
liability in respect of anything said or any vote given by
him in Parliament or in any committee thereof.
ARTICLE 105(3) ―In other respects, the powers, privileges and immunities
Pari Materia of each House of Parliament, and of the members and the
(Similar) committees of each House, shall be such as may from
Article 194(3) time to time be defined by Parliament by law, and, until
House of Commons so defined, shall be those of that House and of its
members and committees immediately before the
coming into force of section 15 of the Constitution
(Forty-fourth Amendment) Act, 1978. (…shall have all
the powers, privileges and immunities of the House of
Commons of the United Kingdom as at the date of the
commencement of our Constitution- These words were
substituted by 44th Constitutional Amendment.)
Gunupati First Case First Case on the point of Relation between
Case, 1952. Parliamentary Privileges (Articles 105 & 194) and
Fundamental Rights.
DOJ Gunupati PATANJALI SASTRI C. J., ―This is an application
173
P.V. Narsimha Rao vs. State (Cbi/Spe),1998.
274
18 March, Keshavram Reddy under Article 32 of the Constitution of India complaining

1952 vs. Nafisul Hasan & that one Sri Homi Dinshaw Mistry is under illegal
State Of U.P. detention and praying that he be released forthwith. The
petition alleges that Sri Mistry was arrested in Bombay
In this case, on the 11th March 1952 and taken in custody to
Supreme Court did Lucknow to be produced before the Speaker of the Uttar
not discuss in detail. Pradesh Legislative Assembly to answer a charge of
Judgment was breach of privilege. It is further alleged that Sri Mistry
written in one page. was not produced before a Magistrate within twenty
I have done cut-pest four hours of his arrest; but is still kept in detention in
whole judgment. the Speaker's custody at Lucknow. The Attorney
General admits before us that this allegation is well
founded, that is to say, that since his arrest on the 11th
March, Sri Mistry has not been produced before a
Magistrate; but is still detained in custody. This is a clear
breach of the provisions of Article 22(2) of the
Constitution of India which is quite peremptory in its
terms :
―No such person shall be detained in Custody beyond the

said period without the authority of a Magistrate‖
In view of the admitted facts it is perfectly clear that this

provision of the Constitution has been contravened and
the said Mr. Mistry is entitled to his release. The habeas
corpus petition therefore succeeds and we direct that Mr.
Mistry be released forthwith (DOJ 18 March, 1952).
(Order communicated by telegram at the expense of the

Petitioner).
DOJ Pandit M.S.M. Freedom of speech in Parliament becomes subject to the
12 Sharma vs. Sri provisions of the Constitution relating to the procedure of
December, Krishna Sinha174 Parliament, i.e., subject to the article relating to
1958 procedure in Part V including Article 107 and 121.
DOJ Pandit M.S.M. The petitioner, the Editor of the English daily
12 Sharma vs. Sri newspaper Searchlight of Patna, was called upon by the
December, Krishna Sinha175 Secretary of the Patna Legislative Assembly to show
1958 (1) Petition under cause before the Committee of Privileges of the
Searchlight Article 32 of the Assembly why appropriate action should not be taken
Case Constitution of India against him for the breach of privileges of the Speaker
for the enforcement and the Assembly for publishing in its entirety a speech
of Fundamental delivered in the Assembly by a member thereof,
rights. portions of which were directed to be expunged by the
174
AIR1959SC395
175
AIR1959SC395
275
Speaker.
(2)In view of the Argument of Petitioner- It was contended on behalf of
judgment of the the Petitioner that the said notice and the proposed
majority, the petition action by the Committee were in violation of his
was dismissed. fundamental right to freedom of speech and expression
Petitioner did not get under Art. 19(1) (a) and of the protection of his personal
any relief from the liberty under Art. 21 of the Constitution, and that, as an
Supreme Court. editor of a newspaper, he was entitled to all the benefits
of the freedom of the Press.
(3)Article 105(3) Decision of Court-
and Article 194(3) is (1)The result of the foregoing discussion, therefore, is
not subject to that the House of Commons had at the commencement
Article 19(1). of our Constitution the power or privilege of prohibiting
(4) Article 19(1) (a), the publication of even a true and faithful report of the
is general, must debates or proceedings that take place within the
yield to Art. House. A fortiori the House had at the relevant time the
194(1)and (3), power or privilege of prohibiting the publication of an
which are special. inaccurate or garbled version of such debates or
(5) The Supreme proceedings. The latter part of Art. 194(3) confers all
Court held that the these powers, privileges and immunities on the House of
publication of the Legislature of the States, as Art. 105(3) does on the
expunged portion of Houses of Parliament.
speech constituted a (2) It is said that the conditions that prevailed in the dark
breach of the days of British history, which led to the Houses of
privileges of the Parliament to claim their powers, privileges and
House. immunities, do not now prevail either in the United
Kingdom or in our country and that there is, therefore, no
reason why we should adopt them in these democratic
days. Our Constitution clearly provides that until
Parliament or the State Legislature, as the case may be,
makes a law defining the powers, privileges and im-
munities of the House, its members and Committees,
they shall have all the powers, privileges and
immunities of the House of Commons as at the date of
the commencement of our Constitution and yet to deny
them those powers, privileges and immunities, after
finding that the House of Commons had them at the
relevant time, will be not to interpret the Constitution
but to re-make it.
(3) It would not be correct to contend that Art. 19(1) (a)

of the Constitution controlled the latter half of Art.
194(3) or of Art. 105(3) of the Constitution and that
the powers, privileges and immunities conferred by
them must yield to the fundamental right of the citizen
under Art. 19(1) (a).
276
(4) As Articles 194(3) and 105(3) stood in the same

supreme position as the provisions of Part III of the
Constitution and could not be affected by Art. 13, the
principle of harmonious construction must be adopted.
So construed, the provisions of Art. 19(1) (a), which
were general, must yield to Art. 194(1) and the latter part
of its cl. (3), which are special, and Art. 19(1) (a) could
be of no avail to the petitioner.176
Article 122 Article 122. (1) The validity of any proceedings in
Parliament Parliament shall not be called in question on the ground
of any alleged irregularity of procedure.
Article (2) –No officer or member of Parliament in
whom powers are vested by or under this Constitution
for regulating procedure or the conduct of business, or
for maintaining order, in Parliament shall be subject to
the jurisdiction of any court in respect of the exercise by
him of those powers.
Article 212 Article 212. (1)- The validity of any proceedings in the
Legislature Legislature of a State shall not be called in question on
the ground of any alleged irregularity of procedure.
Article (2) –No officer or member of the Legislature of a
State in whom powers are vested by or under this
Constitution for regulating procedure or the conduct of
business, or for maintaining order, in the Legislature
shall be subject to the jurisdiction of any court in respect
of the exercise by him of those powers
DOJ In The Matter Of: Justice Gajendragadkar-
30 Under Article 143 Facts- It appears that on March 14, 1964, the Speaker of
September, … vs. Unknown178 the Legislative Assembly of Uttar Pradesh administered,
1964 in the name of and under the orders of the Legislative
(1)This is Special
Keshav Assembly (hereinafter referred to as ―the House‖), a
Reference No. 1 of
Singh Case reprimand to Keshav Singh, who is a resident of
1964 by which the
or Gorakhpur, for having committed contempt of the House
President has
Legislative and also for having committed a breach of the privileges
formulated five
Privilege of Narsingh Narain Pandey, a member of the House. The
questions for the
Case177. contempt and the breach of privileges in question arose
opinion of this Court
and use of of a pamphlet which was printed and published and
under Article
Article 194 which bore the signature of Keshav Singh along with the
143(1) of the
against two signature of other persons. In pursuance of the decision
Constitution.
judges of taken by the House later on the same day, the Speaker
176
https://indiankanoon.org/doc/944601
177
This name has been used in several times in case of P.V. Narsimha Rao vs. State
(Cbi/Spe),1998.
178
AIR 1965 SC 745
277
High Court. (2)Article 19- The directed that Keshav Singh be committed to prison for
Supreme Court held committing another contempt of the House by his
that the Searchlightconduct in the House when he was summoned to receive
Case excluded only the aforesaid reprimand and for writing a disrespectful
Article 19(1) (a) and
letter to the Speaker of the House earlier. According to
not other
this order, a warrant was issued over the signature of the
fundamental right, Speaker of the House, Mr. Verma, directing that Keshav
from controlling theSingh be detained in the District Jail, Lucknow, for a
Legislative period of seven days, and in execution of the warrant
privilages. Keshav Singh was detained in the Jail.
(3)Article On March 19, 1964, Mr. B. Solomon, an Advocate
21-
Article 21 would 277crutinize before the Lucknow Bench of the Allahabad
apply to
High Court, presented a petition to the High Court on
parliamentary behalf on Keshav Singh under under Article 226 of the
privileges and a Constitution. Beg and Sahgal JJ. , Lucknow Bench heard
person would be freethe matter and directed for release of Keshav Singh.
to come to the CourtInstead of complying the order, the House proceeded to
for a writ of habeastake action against the two learned Judges who passed
corpus on the groundthe order on Keshav Singh‟s application, as well as
that he had been Keshav Singh and his Advocate, on March 21, 1964.
deprived of his Held- Art. 212(1) seems to make it possible for a citizen
personal liberty notto call in question in the appropriate court of law the
in accordance with validity of any proceedings inside the legislative chamber
law, but for
if his case is that the said proceedings suffer not from
capricious or mala mere irregularity of procedure, but from an illegality. If
fide reasons. the impugned procedure is illegal and unconstitutional, it
would be open to be scrutinized in a court of law, though
such scrutiny is prohibited if the complaint against the
procedure is no more than this that the procedure was
irregular.
Conclusion Relation between The position appears to be that it is wrong to suppose
Parliamentary that no Fundamental Right applies to the area of
Privileges (Articles legislative privileges. Some fundamental rights, like
105 & 194) and Article 19(1)(a), do not apply.179 Perhaps, Article 19(1)
Fundamental (b) to19 (1) (g) would also not apply.180 On the other
Rights hand, some fundamental rights e.g., Article 21 do
apply.181 While the position with regard to others, e.g.,
Articles 22(1) and (2), is not clear.182
179
Searchlight Case. 1958
180
181
Keshav Singh Case, 1964
182
278
1998 P.V. Narsimha Rao Facts- In the General Election for the Tenth Lok Sabha
Note for vs. State held in 1991 the Congress (I) emerged as the single
vote case (Cbi/Spe),183 largest party and it formed the Government with P.V.
(JMM (1) Member of Narsimha Rao as the Prime Minister. In the Monsoon
Case) Parliament is a Session of Lok Sabha July 1993 a `No Confidence
public servant. Motion' was moved against the Government by Shri Ajay
Mukhopadhyaya, a CPI (M) M.P. At that time the
effective strength of the House (Lok Sabha) was 528 and
Congress (I) party had 251 members. It was short by 14
members for simple majority. The Motion of No-
Confidence was taken up for discussion in the Lok Sabha
on July 20 1993 and the debate continued till July 28,
1993. The motion was thereafter put to vote. The motion
was defeated with 251 members voting in favour of the
motion, while 265 voting against it.
On the basis of the complaint regarding taking the
briberies for voting, the CBI registered four cases against
Shibu Soren, Simon Marandi and Shallendra Mahto,
Suraj Mandal Members of Parliament belonging to the
Jharkhand Mukti Morcha party [JMM] and some other
persons.
There were two questions, (1) Whether a Member of
Parliament is a ―public servant‖ falling within the
purview of the Prevention of Corruption Act, 1986, and
(2) Whether by virtue of Article 105 of the Constitution a
Member of Parliament can claim immunity from
prosecution on a charge of bribery in a criminal court.
Answers- (1) Supreme Court held that a member of
Parliament is a public servant under Section 2 (c) of
the Prevention of Corruption Act, 1988.
(2) (i) The four JMM members who had taken the money
and voted against the motion were not guilty of
corruption.
(ii) But one member (Ajit Singh) who had taken the
money, but did not vote was held liable to be prosecuted.
(iii) Person who had given bribery, can‘t take benefit of
Article 105(2).
25 Feb. Justice Ripusudan The present writ petition, under Article 32 of the
2014 Dayal vs. State of Constitution of India, has been filed by the petitioners
M.P. challenging the validity of certain letters issued by Mr.
Petitioner No.1 was Qazi Aqlimuddin – Secretary, Vidhan Sabha on various
the Lokayukt of the dates against them with regard to a case registered by the
State of Madhya Special Police Establishment (SPE) of the Lokayukt
Pradesh appointed Organisation, against the officials of the Vidhan Sabha
183
Date of Judgment,17 April, 1998
279
under the provisions Secretariat as well as against the concerned officials of

of the Madhya the Capital Project Administration- the Contractor
Pradesh Lokayukt Company alleging irregularity in the construction work
Evam Uplokayukt carried out in the premises of Vidhan Sabha.
Act, 1981. Petitioner Supreme Court held, ―
No.2 was the Legal (1) The officers working under the office of the Speaker
Advisor, with the are also public servants within the meaning of Section
Lokayukt and 2(g) of the Lokayukt Act and within the meaning
Petitioner Nos. 3 to of Section 2 (c) of the Prevention of Corruption Act,
5 were the officers 1988 and,therefore,
of Madhya Pradesh (2) the Lokayukt and his officers are entitled and duty
Special Police bound to make inquiry and investigation into the
Establishment. allegations made in any complaint filed before them.
(3) In performing the statutory duty, the petitioners did
not interfere in the working of the House and there was
no breach of Article 194 of the Constitution of India.
CONCLUSION- There are several examples of conflict between Judiciary and Legislative
bodies. So, in the interest of democracy, law related to privileges regarding Legislative bodies
must be codified.
KIND OF PRIVILEGES
There are two types of privileges-
(1) Privileges expressly conferred by the Constitution, and
(2)Other Privileges
Privileges expressly Article
conferred by the
Constitution
(a) FREEDOM OF Article 105(1) & (2) - Freedom of speech in Parliament
SPEECH has been expressly safeguarded by Articles 105(1) &
(2)184.
1629/1668 Sir John Eliot House of Lords established freedom of speech as a
Case, Parliamentary privileges.
8 May, Tej Kiran Jain vs. Jagadguru Shankaracharya made certain remarks
184
280
1970 Sanjiva Reddy concerning untouchability. On April 2, 1969, a

discussion took place in Lok Sabha in which certain
derogatory words were spoken against Shankaracharya.
Matters were brought before the Supreme Court by
disciples of Shankaracharya. Referring to Article
105(1), the Court emphasized that whatever is said in
Parliament and in the course of the business of
Parliament is immunized.
1998 P.V. Narsimha Rao Bribery taken and voted in Parliament is protected under
vs. State Article 105 (2) of the Constitution of India.
(b) PUBLICATION Article 105 (2).

UNDER
PARLIAMENTARY
AUTHORITY
1839 Stockdale vs. A book containing defamatory matter against the
Hansard plaintiff published under the authority of the House of
the Commons, was held to enjoy no privilege and
damages were awarded to the plaintiff against the
publisher.
1840 Parliamentary To override the judgment of Stockdale vs. Hansard,
Papers Act,1840 Parliamentary Papers Act,1840 was passed which made
the publication of any reports, papers, votes or
proceedings of the House of Parliament , ordered by the
House completely privileged whether the publication
was only for the use of the members of Parliament or for
a wider circulation.
16 January, Dr. Jatish Chandra The appellant, who was an elected member of the West
1961 Ghosh vs. Hari Bengal Legislative Assembly, gave notice of his
Sadhan Mukerjee intention to put certain questions in the Assembly and
Member of on those questions being disallowed by the Speaker
Legislative published them in a journal called Janamat of Ghatal,
Assembly could not his own constituency. The first respondent who was
get benefit because, then the Sub-Divisional Magistrate of Ghatal and
he had published whose conduct was the subject-matter of some of those
without authority of questions, filed a complaint against the appellant and
Assembly. two others, the editor and the printer and publisher of
the janamat, under Sections 500 and 501 of the Indian Penal Code.
Supreme Court Held, (1) the claim of immunity under
Art.194 of the Constitution must be negatived.
(2) Clause (1) of Art. 194 had no application
since the matter was clearly outside the scope of that
clause. Clause (2) of that Article was also inapplicable
since it was not the case of the appellant that
the publication was under the authority of
the Legislative Assembly and it could not also be
281
said that it came within the expression " anything said or

any vote given " in that clause.
(3)The publication of a disallowed question by a
member of the Assembly does not come within the
powers, privileges and immunities enjoyed by a
member of the House of Commons and, consequently,
cl. (3) of Art.194 also cannot be of any help to the
appellant.The immunity enjoyed by a member of the
House of Commons is clearly confined to speeches
made in Parliament and does not extend to the
publication of the Debate outside.
(4)If he publishes his speech, made in the House, separately from t
(c) Rule-making power Article 118. (1) Each House of Parliament may make
Articles 118 and 208 rules for regulating, subject to the provisions of this
Mutatis Mutandis Constitution, its procedure and the conduct of its
business.
Procedure of house Procedure of House is regulated by (1) the provisions of
the Constitution, (2) Rule of procedure and conduct of
business made by the House (3) Direction issued by the
Speaker/Chairperson from time to time under those
rules. And (4) convention, traditions and past practices.
(d) Internal Authority The validity of any proceedings in Parliament shall not
Articles 122/212 be called in question on the ground of any alleged
irregularity of procedure. A House has absolute
jurisdiction over its own internal proceedings.
DOJ In The Matter of: Supreme Court held, ―Art. 212(1) seems to make it
30 Under Article 143... possible for a citizen to call in question in the
September, Vs. Unknown appropriate court of law the validity of any proceedings
1964 (Keshav Singh inside the legislative chamber if his case is that the said
Case), proceedings suffer not from mere irregularity of
procedure, but from an illegality. If the impugned
procedure is illegal and unconstitutional, it would be
open to be scrutinized in a court of law, though such
scrutiny is prohibited if the complaint against the
procedure is no more than this that the procedure was
irregular.‖
Other Privileges
(a) FREEDOM FROM Section 135A of Civil Procedure Code, 1908.According
ARREST to Section 135A, ―No member of Parliament or
Immunity is only in Legislative bodies of States or Union Territories shall be
civil cases rather liable to arrest or detention in prison under civil process
than criminal and during the continuance of meeting of the House and
preventive detention during the forty days before and after such meeting.
or contempt of Court
Cases.
4 April, Ansumali Majumdar The Calcutta High Court has held that a member of the
282
1952 And Ors. Vs. The House of the Central or State Legislature cannot claim
State Of West as such Member any immunity from arrest under the
Bengal And Anr. Preventive-Detention Act.
(b) INQUIRIES A house has power to institute and order attendance of
witness and in case of disobedience, to bring the
witnesses in custody to the bar of the House.
(c) DISCIPLINARY House of Parliament has power to enforce discipline, to
POWERS OVER punish its members and expel a member whose conduct
MEMBERS is not good. Case of Indira Gandhi is the good
example. She was expelled from the House as well as
sentenced to imprisonment which ended with the
prorogation of the House a week later.
Charge over Indira Gandhi was that she caused
―obstruction, intimidation, harassment‖ to and caused
false cases instituted against, some officials who were
collecting facts about Sanjay Gandhi‘ Maruti Ltd. To
enable the Minister to reply to a question tabled in the
House.
(d) FREEDOM FROM
JURY SERVICE
(e) PRIVACY OF SECRET SITTING OF THE HOUSE
DEBATES Rule-248. (1) On a request made by the Leader of the
―The Rules of House, the Speaker shall fix a day or part thereof for
Procedure and sitting of the House in secret. (2) When the House sits in
Conduct of Business secret no stranger shall be permitted to be present in the
in Lok Sabha‖. Rule Chamber, Lobby or Galleries: Provided that members of
248. the Council may be present in their Gallery: Provided
further that persons authorised by the Speaker may be
present in the Chamber, Lobby or Galleries.
Rule 269. A witness may be summoned by an order
signed by the Secretary-General and shall produce such
documents as are required for the use of a Committee.
(f) Publication of Pandit M.S.M. Sharma vs. Sri Krishna Sharma
proceedings (Searchlight Case, 1958,).
The Supreme Court has ruled that publication of
inaccurate or garbled version of speeches delivered in
the House, or misreporting the proceeding of the House
amounts to a breach of privilege of the House.
(g) Power to punish for Rule 226- If leave under rule 225 is granted, the House
contempt may consider the question and come to a decision or
refer it to a Committee of Privileges on a motion made
either by the member who has raised the question of
privilege or by any other member.
Rule 227-Notwithstanding anything contained in these
rules, the Speaker may refer any question of privilege to
the Committee of Privileges for examination,
283
investigation or report.
Mrs. Indira Gandhi It is also beyond doubt now that a matter of breach of
Case privilege of the house could be raised, after the
dissolution of the House: in the next House. The point
came into sharp focus in Lok Sabha in Nov, 1977, when
a privilege motion was raised in the Sixth Lok Sabha
against Indira Gandhi for her conduct in the Fifth Lok
Sabha. The Privileges Committee ruled that the motion
could be raised. (The Dissolution of the Lok Sabha does
not imply discontinuity of the institution of the
Parliament…the Lok Sabha possesses the power to
punish a breach of privilege and contempt of the earlier
Lok Sabha.). For the example Indira Gandhi Case. The
House agreeing the recommendation of the Committee
decided to imprison Indira Gandhi till the prorogation of
the House and also expelled her from the membership of
the House.
(h) Committee of
Privileges
ARGUMENTS IN FAVOUR OF DECISION

DR. SUBHASH KASHINATH MAHAJAN Vs. THE STATE OF MAHARASHTRA and
ANR.186
,Hon‘ble JJ.ADARSH KUMAR GOEL and UDAY UMESH LALIT. 20MARCH, 2018.
ABSTRACT- Dr. Subhash Kashinath Mahajan vs. State of Maharashtra, which was decided on
20March, 2018 is excellent Judgment on Scheduled Caste And Scheduled Tribe (Prevention
of Atrocities) Act, 1989. No need to be worried. This Judgment is mainly based on Maneka
Gandhi vs. UOI, 1978, Art.21, Gurbaksh Singh Sibbia vs. State of Punjab,1980, 438Cr.P.C.
and Lalita Kumari vs. State of U.P.,12 Nov. 2013,Sec.154 of Cr.P.C. and D.K.Basu vs. State of
W.B.1997. By this Judgment, Supreme Court has tried to make procedure just , fair and
reasonable as mentioned in Article 21. Preliminary Inquiry may(may rather than shall word has
been used. In news papers may word is being interpreted as mandatory rather than discretion) be
conducted. Anticipatory Bail is not available when offence has been committed as prohibited
under section 18 of the Act. Anticipatory Bail is available only when there is no prima facie
case or after judicial scrutiny, it is found that allegations are prima facie mala fides.
185
ASSISTANT PROFESSOR, FACULTY OF LAW, UNIVERSITY OF DELHI, DELHI.
186
Supreme Court, DOJ, March 20, 2018,Hon‘ble JJ.ADARSH KUMAR GOEL and UDAY
UMESH LALIT.
284
Arrest of Public servant must be done with previous permission of ―Appointing Authority‖ and
arrest of other than public servants must be done with previous permission of S.S.P.
FIR and arrest both are different things as it was explained in Lalita Kumari vs. State of U.P.,
2013. In Arnesh Kumar vs. State of Bihar, Supreme Court clearly said that arrest in dowry case
is not necessary in all cases. It is not the first case in which Supreme Court has issued guidelines
for proper implementation of laws. For example sexual harassment at work place, arrest of
person, control of pollution, rape victim and bonded labourers and prevention of children's
exploitation etc. Some new concept have been evolved for protection of weaker section for
example PIL, Absolute Liability Polluter Pays Principle etc.
Key Words- Right to life, Presumption of innocence, Anticipatory Bail, FIR, Preliminary
Inquiry
INTRODUCTION- Dr. Subhash Kashinath Mahajan Vs. The State Of Maharashtra And Anr. is
not the first case in which Supreme Court of India has issued guidelines for proper use of
Laws187 and protect the interest of the society and nations. Several provisions have been struck
down which were contradictory to the provisions of the Constitution.188 Several new principles
were propounded for the protection of the interest of weaker sections and suppressed class 189.
New interpretation was given.190 Hon‘ble JJ.Adarsh Kumar Goel And Uday Umesh Lalit
issued guidelines in the case of Rajesh Sharma vs. State of Uttar Pradesh to prevent the misuse of
Section 498A of IPC.191 Common Cause (Regd. Society) vs. Union of India,192 Constitutional
Bench of Supreme Court held that right to life includes dignified death and allowed passive
euthanasia and also laid down guidelines for its implementation.
FACTS OF THE CASE – According to victim, Bhaskar Karbhari Gaidwad, ―In the year
2009 victim was working as store keeper in the Govt. Pharmacy College Karad, at that time he
have registered complaint to Karad City Police Station Cr. NO. 3122/09 u/s 3(1)9, 3(2)(7)6 of
Scheduled Caste And Scheduled Tribe (Prevention Of Atrocities) Act, 1989 and the
investigation was done by Shri Bharat Tangade, then D.Y.S.P. Karad division Karad in the
investigation (1) Satish Balkrushna Bhise, then Principal Pharmacy College Karad,( 2) Kishor
Balkrishna Burade, then Professor, Pharmacy College Karad has been realized as accused in the
present crime. Investigation officer collect sufficient evidence against both the accused, but both
the accused are from Govt. Technical Education department Class 1 Public Servant, so before
filing charge sheet against them he wrote the letter to the senior office of the accused u/s 197 of
Cr.P.C. to take the permission at that time Mr. Subhash Kashinath Mahajan was working as
incharge director of the office. Today also he is working as same post. Mr. Mahajan does not
belongs to S.C. & S.T. but he knew that I belongs to S.C. and S.T.
187
Vishaka And Ors Vs. State Of Rajasthan And Ors. Doj 13 Aug.1997.
188
Air India vs. Nargesh Meerza, 1981,
189
Public Interest Litigation and Principle of Absolute Liability.
190
Ms. Githa Hariharan and Anr. Vs. Reserve Bank of India and Anr. Date of Judgement,
February 17, 1999. & Independent Thought Vs. Union Of India & Anr, Date of Judgment
11Oct.2017.
191
SC Date of Judgment-22July,2017.
192
Date of Judgment 09 March,2018.
285
In fact both the accused involved in crime No. 3122/09 are working on class 1 post and to file a
charge sheet against them the permission has to be taken according to Cr.P.C. Section 197. This
fact known to Shri Mahajan and Mr. Mahajan knew that this office did not have such right to
give permission. So Mr. Mahajan send letter to Mumbai Office. Infact to give the required
permission or to refuse the permission is not comes under the jurisdiction of incharge direction,
Technical Education Mumbai. But, Mr. Mahajan misused his powers so that, accused may be
benefited, he took the decision and refused the permission to file the charge sheet against the
accused. So that, investigation officer Shri Bharat Tangade fails to submit the charge sheet
against the both the accused, but he complain to submit ‗C‘ summary report.‖
There are several important points which have been discussed in this case-
(1) REGISTRATION OF FIR AND PRELIMINARY INQUIRY- Lalita Kumari Vs. State
of U.P193- In this case Supreme Court held that lodging of FIR is mandatory under section 154 of
Cr. P.C. except in certain circumstances. In certain circumstances without preliminary inquiry,
FIR cannot be lodged. Law is to protect the interest of both. Article 21 cannot be denied even for
accused. . The category of cases in which preliminary inquiry may be made are as under: (a)
Matrimonial disputes/family disputes (b) Commercial offences (c) Medical negligence cases (d)
Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal
prosecution, for example, over 3 months‘ delay in reporting the matter without satisfactorily
explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all
conditions which may warrant preliminary inquiry.
While ensuring and protecting the rights of the accused and the complainant, a preliminary
inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of
such delay and the causes of it must be reflected in the General Diary entry.‖
It may be concluded even within 10 Minute or one hour. Maximum times have been mentioned
i.e.7 days rather than minimum time. There is no restriction on the registration of FIR only
condition is that FIR should contain truth.194
(2) DIFFERENCE BETWEEN LODGING OF FIR AND ARREST-

Even if preliminary inquiry is held and case is registered, arrest is not necessary. In LALITA
KUMARI VERSUS STATE OF U.P195- it was observed : ―While registration of FIR is
mandatory, arrest of the accused immediately on registration of FIR is not at all mandatory. In
fact, registration of FIR and arrest of an accused person are two entirely different concepts under
the law, and there are several safeguards available against arrest. Moreover, it is also pertinent to
mention that an accused person also has a right to apply for ―anticipatory bail‖ under the
provisions of Section 438 of the Code if the conditions mentioned therein are satisfied. Thus, in
appropriate cases, he can avoid the arrest under that provision by obtaining an order from the
court.‖
193
(2014) 2 SCC 1.
194
Dr. Subhash Kashinath Mahajan vs. State of Maharashtra, Hearing of Review Petition on 03
April,2018.
195
(2014) 2 SCC 1.
286
To avoid false implication, before FIR is registered, preliminary enquiry may be made whether
the case falls in the parameters of the Atrocities Act and is not frivolous or motivated.196
Section 41 of Cr. P.C. is applicable even to SC &ST Act,1989. Neither in Cr.P.C. nor in SC
&ST Act,1989 has been provided that after lodging of FIR suspected person must be arrested
immediately.197
In Article 11(1) of the Universal Declaration of Human Rights (1948) it is stated: ―Everyone
charged with a penal offence has the right to be presumed innocent until proved guilty according
to law….‖
(3) PRESUMPTION OF INNOCENCE - Presumption of innocence is a human right as
envisaged under Article 14(2) of the International Covenant on Civil and Political Rights.
State of Punjab versus Dalbir Singh 198, it was observed : ―In our Constitution the concept of
―due process‖ was incorporated in view of the judgment of this Court in Maneka Gandhi
vs.Union of India199. The principles of the Eighth Amendment have also been incorporated in our
laws.
(4) EXCLUSION OF ANTICIPATORY BAIL, SECTION 18 OF THE ACT,1989 and 438
of Cr.P.C.- ―Statement of Objects and Reasons‖ of this special law denotes that this Act has
been passed in context of Article 17 (Abolition of Untouchability) and Article 46 ( Duty of State
to protect SC and ST from social injustice and all forms of exploitation) and State of Madhya
Pradesh vs. Ram Krishna Balothia,200 in which Division Bench of Supreme Court held that
Section 18 of Atrocities Act 1989 is not inconsistent with Article 14 and Article 21of the
Constitution of India. Manju Devi versus Onkarjit Singh Ahluwalia201 is recent judgment in
which Supreme Court upheld section 18 of Atrocities Act, 1989 as constitutional.
In the case of Dr. Subhash Kashinath Mahajan vs. State of Maharashtra, 20March, 2018,
Supreme Court observed that jurisdiction of this Court to issue appropriate orders or directions
for enforcement of fundamental rights is a basic feature of the Constitution. Right to equality and
life and liberty have to be protected against any unreasonable procedure, even if it is enacted by
the legislature. The substantive as well as procedural laws must conform to Articles 14 and 21.
Any abrogation of the said rights has to be nullified by this Court by appropriate orders or
directions. Power of the legislature has to be exercised consistent with the fundamental rights.
Enforcement of a legislation has also to be consistent with the fundamental rights. Undoubtedly,
this Court has jurisdiction to enforce the fundamental rights of life and liberty against any
executive or legislative action.
Exclusion of anticipatory bail has been justified only to protect victims of perpetrators of crime.
It cannot be read as being applicable to those who are falsely implicated for extraneous
reasons and have not committed the offence on prima facie independent scrutiny. Access to
196
Dr. Subhash Kashinath Mahajan vs. State of Maharashtra, 20March, 2018.
197
Ibid.
198
(2012) 3 SCC 346
199
Date of Judgment 25 January 1978.
200
Date of Judgment, 06 Feb.1995
201
(2017) 13 SCC 439.
287
justice being a fundamental right, grain has to be separated from the chaff, by an independent
mechanism. Liberty of one citizen cannot be placed at the whim of another. Law has to protect
the innocent and punish the guilty. Thus considered, exclusion has to be applied to genuine cases
and not to false ones. This will help in achieving the object of the law.202 Madhya Pradesh vs.
Ram Krishna Balothia,203 was decided in ignorance of the Constitution Bench judgment in
Gurbaksh Singh Sibbia etc. versus State of Punjab204 . If a Court is not debarred from granting
anticipatory bail even in most heinous offences including murder, rape, dacoity, robbery, NDPS,
sedition etc., which are punishable with longer periods depending upon parameters for grant of
anticipatory bail, taking away such power in respect of offences under the Act is discriminatory
and violative of Article 14. Exclusion of court‘s jurisdiction, even where the court is satisfied
that arrest of a person was not called for, has no nexus with the object of the Atrocities Act.
(5) GUIDELINES FOR ARREST-This Court noted the observations and guidelines laid down
against wrongful arrests in Joginder Kumar versus State of U.P,205 D.K. Basu versus State of
W.B,206 Arnesh Kumar versus State of Bihar207 and other cases and held that since the arrest is
in violation of guidelines laid down by this Court and is violative of Article 21, the person
arrested was entitled to compensation.
(6) VICTIM AND COMPENSATION –Compensation may be granted even without lodging of
FIR.208
(7) ARTICLE 21 OF CONSTITUTION OF INDIA- Right to life is available to all persons.
This Judgment has been passed to protect the interest of all persons rather than to dilute the
provisions of SC Act, 1989. Law may be misused even by police.209
(8) PRIOR PERMISSION AND ARREST- Arrest may be divided into two parts-(1) Arrest of
Public Servant and (2) Arrest of person other than Public Servant.
(1)Arrest of Public Servant- Under section 197 of Cr.P.C. Public Officer may be arrested with
prior permission of appointing authority.
Public official accused under the SC..Act,1989, prior information is to be obtained by a higher
authority and the higher authority is to provide written reasons for the arrest to be made and the
Magistrate need to apply his mind scrutiny the reasons given for the arrest and need not
necessarily accept the official reasons for arrest.210
202
203
204
(1980) 2 SCC 565
205
(1994) 4 SCC 260
206
(1997) 1 SCC 416
207
(2014) 8 SCC 273
208
Dr. Subhash Kashinath Mahajan vs. State of Maharashtra, Review Petition 03April, 2018.
209
Ibid.
210
Ibid.
288
(2) Arrest of person other than Public Servant.- In the case of arrest of a person other than
Public Servant, the Senior Superintendent of Police (SSP) should provide written reasons for
the arrest to be made.
GUIDELINES LAID DOWN IN THE CASE OF DR. SUBHASH KASHINATH MAHAJAN
VS. THE STATE OF MAHARASHTRA AND ANR.211
The Supreme Court said, ―Our conclusions are as follows:
(i) Proceedings in the present case are clear abuse of process of court and are quashed.
(ii) There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act
if no prima facie case is made out or where on judicial scrutiny the complaint is found to be
prima facie mala fide.
(iii) In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a
public servant can only be after approval of the appointing authority and of a non-public
servant after approval by the S.S.P. which may be granted in appropriate cases if considered
necessary for reasons recorded. Such reasons must be scrutinized by the Magistrate for
permitting further detention.
(iv) To avoid false implication of an innocent, a preliminary enquiry may be conducted by the
DSP concerned to find out whether the allegations make out a case under the Atrocities Act and
that the allegations are not frivolous or motivated.
(v) Any violation of direction (iii) and (iv) will be actionable by way of disciplinary action as
well as contempt.
The above directions are prospective.‖
COMPARISON BETWEEN THE ACT, 1989 AND S.K.MAHAJAN VS. STATE OF
MAHARASHTRA
S.N. Scheduled Caste And Scheduled Dr. Subhash Kashinath Mahajan Vs. The
Tribe (Prevention Of Atrocities) State Of Maharashtra And Anr.212
Act, 1989
Section 2(1)(f)- words and
expressions used but not defined in
this Act and defined in the Code of
Criminal Procedure,1973 or the Indian
Penal Code (45 of 1860) shall have the
meanings assigned to them
respectively in the Code, or as the case
may be, in the Indian Penal Code.
1 As soon as complain is lodged, Lodging of FIR is not mandatory. If needed,
person is arrested Preliminary Inquiry may be conducted. If
allegation is clear, no need of preliminary
211
UMESH LALIT.
212
Supreme Court, DOJ, March 20, 2018.
289
inquiry.
Gurbaksh Singh Sibbia etc. versus State of
Punjab213
Article 21 is a procedural provision which is
concerned with the personal liberty of an
individual who has not been convicted of the
offence in respect of which he seeks bail and
who must therefore be presumed to be
innocent. The validity of that section must
accordingly be examined by the test of fairness
and reasonableness which is implicit in Article
21. If the legislature itself were to impose an
unreasonable restriction on the grant of
anticipatory bail, such a restriction could have
been struck down as being violative of Article
21.
2 There is no anticipatory bail. There is no absolute bar against grant of
Section 18-Nothing in section 438 of anticipatory bail in cases under the Atrocities
the Code shall apply in relation to any Act if no prima facie case is made out or
case involving the arrest of any person where on judicial scrutiny the complaint is
on an accusation of having committed found to be prima facie mala fide.
an offence under this Act.
3 There is no express provisions. Arrest of public servant- Arrest of public
servant can only be after approval of the
appointing authority. Section 197
4 There is no such provisions. Arrest of non-public servant -Arrest of non-
public servant after approval by the S.S.P.
CONCLUSION-Purpose of this Judgment was explained by Hon‘ble Judges Hon‘ble Jj.Adarsh
Kumar Goel & Uday Umesh Lalit. at the time of accepting ―Review Petition‖ on 03/04/2018 in
following words- ―We have said that innocents should not be penalized. The innocents should
not be terrorized by the provisions of the SC/ST Act, 1989. We don‟t want to deprive anyone
from right to life and we makes ourselves very clear that we are not against the Act or
complainants.”
Purpose of law is to protect the interest of everyone. I hope this judgment would be implemented
in proper way so that interest of everyone may be protected.
213
Supreme Court, DOJ, 09 April,1980.
290
Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Dr. Subhash
Kashinath Mahajan vs. State of Maharashtra and Anr.214
Krishna Murari Yadav215
Introduction- Atrocities against SC and ST are rooted in caste system. Caste system is based on
reservation by birth rather than merit. According to Article 366(24) of Constitution of India,
―Scheduled Castes‖ means such castes, races or tribes or parts of or groups within such castes,
races or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of this
Constitution. According to Article 366 (25) ―Scheduled Tribes‖ means such tribes or tribal
communities or parts of or groups within such tribes or tribal communities as are deemed under
Article 342 to be Scheduled Tribes for the purposes of this Constitution. According to 2011
214
Hon‘ble JJ. Adarsh Kumar Goel And Uday Umesh Lalit, Supreme Court, DOJ, March 20,
2018,
215
Assistant Professor, Faculty ff Law, University Of Delhi, Delhi.
291
census of India, total population of Scheduled Castes is 16.2% and Scheduled Tribes is 8.2%.216
Total population of SC and ST is 24.4% of total population of India. SC and ST are found in all
religions rather than only in Hindu. Caste system is prevailing in all religions including Islam
and Christianity. India became independence in 1947 and republic in 1950. Before
commencement of the Constitution of India, condition of SC and ST were worst. They were not
allowed to share public well, road, restaurant, shops, bathing ghats etc. They were not allowed to
enter their religious institutions. They were treated as an animal. All types of justice namely,
Social, Economic and Political justice were denied. There are several specific provisions have
been provided in the Constitution of India for uplifting the condition of SC and ST. These
provisions are Articles 15(4), 15(5) 16(4-A),46,
164,243D,243T,243ZJ,330,332,335,338,338A,341and 342. There are several implied provisions
which promote the interest of SC and ST. For example Article 15(1) (2) (no discrimination on
the basis of caste) Article 17(Abolition of untouchability) etc. They were treated untouchable. So
they did not get opportunity to uplift themselves.
Certain specific laws were enacted to uplift the condition of SC and ST. Protection of Civil
Rights Act 1955217 (Earlier name of this Act was The Untouchability (offences) Act, 1955. This
name was replaced in 1976) is the first Act which was passed clearly in pursuance of Article 17.
But this Act was not sufficient to tackle several problems for example (1) Compensation for
victim during investigation and trial, (2) There was no separate Court, prolong delay in decision,
(3) No lodging of FIR. (4) There was no specific laws. So generally matter was discussed
according to provisions of Cr.P.C. Indian Penal Code, 1860 and Protection of Civil Rights Act
1955 were inadequate .So it was realised need of ‗Special Law‘.
So Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989218 was enacted
by Parliament during the regime of Hon‘ble Prime Minister Mr. Rajeev Gandhi. Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 was made by Central
Government by using the power conferred by Section 23 of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989219. The Act was amended Schedule Castes and
Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 which came into effect on
26/01/2016.
There are certain specific features of this Act which may be drawn after reading ―Statement of
Objects and Reasons‖ of the Act and ―Preamble and whole Act, 1989-
(1) To prevent the commission of offences of atrocities against SC & ST,
(2) Establishment of Special Courts and Exclusive Special Courts,
(3) Relief and Rehabilitation of Victims,
216
Available at http://censusindia.gov.in/Tables_Published/A-Series/A-
Series_links/t_00_005.aspx .Visited on 07/04/2018.
217
Preamble of the Act clearly provides objects of this Act. According to preamble, ―An Act to
prescribe punishment for the preaching and practice of ―Untouchability‖ for the enforcement of
any disability arising therefrom for matters connected therewith.
218
Date of Enforcement 30/01/1990. To commemorate ―Father of Nation‖.
219
Date of Enforcement 30/01/1990. To commemorate ―Father of Nation‖.
292
(4) Prohibition of Anticipatory bail,

(5) Punishment for neglect of duties by public servant other than SC& ST public servant.
DR. SUBHASH KASHINATH MAHAJAN vs. THE STATE OF MAHARASHTRA and
ANR.220
This Case was decided by ―Division Bench‖ of Supreme Court on 20 March, 2018. For simple
analysis, I am framing some issues -
Issue 1- Whether ‗Preliminary Inquiry‘ is necessary before lodging of ‗First Information
Report‘ (FIR),
Issue 2- Whether ‗Anticipatory Bail‘ may be granted in spite of Section 18 of the Act, (Relation
between Section 18 of the Act, and Section 438 of Cr. P.C.).
Issue 3- Whether ‗Procedure‘ prescribed under the Act, 1989 is just, fair and reasonable as
required under Article 21 of the Constitution of India.
Issue 4- Whether guidelines laid-down in this case is judicial overreach.
Issue 5- Whether ‗Conviction Rate‘ is a deciding factors to dilute provisions of any Act.
ISSUE NUMBER -1 Preliminary Inquiry and FIR

Lalita Kumari Vs. State of U.P221- In this case Supreme Court held that lodging of FIR is
mandatory under section 154 of Cr. P.C. except in certain circumstances. In certain
circumstances without preliminary inquiry, FIR cannot be lodged. Law is to protect the interest
of both. Article 21 cannot be denied even for accused. The category of cases in which
preliminary inquiry may be made are as under: (a) Matrimonial disputes/family disputes (b)
Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is
abnormal delay/laches in initiating criminal prosecution, for example, over 3 months‘ delay in
reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are
only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
While ensuring and protecting the rights of the accused and the complainant, a preliminary
inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of
such delay and the causes of it must be reflected in the General Diary entry.‖
Dr. Subhash Kashinath Mahajan vs. State of Maharashtra on March 20, 2018 Supreme
Court held that to control fake cases against innocent people, preliminary inquiry is sine qua non
within limited time by DSP. At the time of clarifying this case in review petition on 03 April, the
Supreme Court said that inquiry may be concluded even within 10 Minute or one hour.
220
UMESH LALIT.
221
(2014) 2 SCC 1.
293
Maximum times have been mentioned i.e.7 days rather than minimum time. There is no
restriction on the registration of FIR only condition is that FIR should contain truth.222
Purpose of preliminary inquiry is only to find out truth.
REALITY- Theoretically, decision of Supreme Court is justified that preliminary inquiry must
be done before lodging of FIR. But practical situation is different. Even in genuine cases FIR is
not lodged by Officer-in Charge of Police Stations. They made several pretext. In the case of
Lalita Kumari vs. Govt. of Uttar Pradesh223(2008) Justice B.N. Aggarwal at the time of passing
order stated reality of lodging FIR which are following, “ There are innumerable cases that
where the complainant is a practical person, FIRs are lodged immediately , copies aremade over
to the complainant on the same day, investigation proceeds supersonic jet speed…In the case
before us allegations have been made that the Station House Officer of the concerned Police
Station is pressurizing the complainant to withdraw the complaint, which ,if true, is very
disturbing state of affairs . We don‟t know there may be innumerable such instances”. In this
case daughter of poor person was kidnapped and he was unable to lodge FIR.
―Preliminary Inquiry‖ condition before lodging FIR would be hurdle and give one more chance
of pretext in lodging of FIR.
Issue No.02
‗Anticipatory Bail‘, (Relation between Section 18 of the Act, and Section 438 of Cr. P.C.).
ARGUMENTS IN FAVOUR OF SECTION 18- ―Statement of Objects and Reasons‖ of this
special law denotes that this Act has been passed in context of Article 17 (Abolition of
Untouchability) and Article 46 (Duty of State to protect SC and ST from social injustice and all
forms of exploitation) and State of Madhya Pradesh vs. Ram Krishna Balothia,224 in which
Division Bench of Supreme Court held that Section 18 of Atrocities Act 1989 is not inconsistent
with Article 14 and Article 21of the Constitution of India. Manju Devi versus Onkarjit Singh
Ahluwalia225 is recent judgment in which Supreme Court upheld section 18 of Atrocities Act,
1989 as constitutional.
Section 5 of Cr.P.C. clearly mention that Special and local laws should not be affected by
provisions of this Code. Provisions of SC and ST Act clearly comes under categories of special
law. So provisions of SC and ST shall override Cr.P.C.
ARGUMENTS AGAINST SECTION 18- In the case of Dr. Subhash Kashinath Mahajan vs.
State of Maharashtra, 20March, 2018, Supreme Court observed that jurisdiction of this Court to
issue appropriate orders or directions for enforcement of fundamental rights is a basic feature of
the Constitution. Right to equality and life and liberty have to be protected against any
unreasonable procedure, even if it is enacted by the legislature. The substantive as well as
procedural laws must conform to Articles 14 and 21. Any abrogation of the said rights has to be
nullified by this Court by appropriate orders or directions. Power of the legislature has to be
222
Dr. Subhash Kashinath Mahajan vs. State of Maharashtra, Hearing of Review Petition on 03
April,2018.
223
2008(11)Scale154.
224
225
(2017) 13 SCC 439.
294
exercised consistent with the fundamental rights. Enforcement of a legislation has also to be
consistent with the fundamental rights. Undoubtedly, this Court has jurisdiction to enforce the
fundamental rights of life and liberty against any executive or legislative action.
Exclusion of anticipatory bail has been justified only to protect victims of perpetrators of crime.
It cannot be read as being applicable to those who are falsely implicated for extraneous
reasons and have not committed the offence on prima facie independent scrutiny. Access to
justice being a fundamental right, grain has to be separated from the chaff, by an independent
mechanism. Liberty of one citizen cannot be placed at the whim of another. Law has to protect
the innocent and punish the guilty. Thus considered, exclusion has to be applied to genuine cases
and not to false ones. This will help in achieving the object of the law.226 Madhya Pradesh vs.
Ram Krishna Balothia,227 was decided in ignorance of the Constitution Bench judgment in
Gurbaksh Singh Sibbia etc. versus State of Punjab228 . If a Court is not debarred from granting
anticipatory bail even in most heinous offences including murder, rape, dacoity, robbery, NDPS,
sedition etc., which are punishable with longer periods depending upon parameters for grant of
anticipatory bail, taking away such power in respect of offences under the Act is discriminatory
and violative of Article 14. Exclusion of court‘s jurisdiction, even where the court is satisfied
that arrest of a person was not called for, has no nexus with the object of the Atrocities Act.
Conclusion- My opinion is that decision on this point of Supreme Court is wrong. Supreme
Court may issues guidelines only when law is salient on relevant point. Section 18 has clearly
excluded anticipatory bail. In State of Uttar Pradesh, section 438 is not applicable even in
normal cases. In certain circumstance, Article 226 is justified. Division Bench of the Supreme
Court had clearly elaborated relation between Section 18 and Articles 14 and 21 of Constitution.
If Court had any doubt, it must have been referred to Constitutional Bench of Supreme Court.
Issue 3- Whether ‗Procedure‘ prescribed under the Act, 1989 is just, fair and reasonable as
required under Article 21 of the Constitution of India.- ‗Procedure‘ prescribed under the Act,
1989 is just, fair and reasonable as required under Article 21 of the Constitution of India. Mere
excluding anticipatory bail is not in derogation of reasonable procedure.
Issue 4- Guidelines laid-down in this case is judicial overreach.- Powers have been divided
among all bodies. Supreme Court has power to interpret the law rather than to frame the law.
According to Article 142, Supreme Court in the exercise of its jurisdiction may pass such decree
or make such orders as is necessary for doing complete justice…..until provision in that behalf so
made..‖ Article 142 may be used where law is salient. On the issue of Uniform Civil Code ,
several times Supreme Court had requested the Government to make laws for Uniform Civil
Code. But never passed Uniform Civil Code.
So, I can say that Supreme Court had clearly tried to override express provisions of Atrocities
Act, 1989.
Issue 5- Whether ‗Conviction Rate‘ is a deciding factors to dilute provisions of any Act.
2015 FIR Charge-sheet Conviction Acquittal/ Remarks
226
227
228
(1980) 2 SCC 565
295
Withdrawal/
Compound
Murder
Rape
Kidnapping
Atrocities 75%
Act,1989
Reason of acquittal/withdrawal/compound is not only false cases. It happened due to several
other reasons also. For example worst socio-economic conditions of SC and ST. They have to
depend over other persons especially in rural areas. Witness protection is another reason. Life of
SC and ST depends mainly on daily wages. They are still fighting for food.
CONCLUSION- Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is a
special laws and it has been passed to uplift socio-economic condition of SC and ST. Till now,
caste system has not been abolished from India. Socio-economic condition of some SC and ST
are very strong. But condition of most of SC and ST has not been uplifted. Schedule Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 must not been diluted. Although SC has
said that it has not diluted the provisions Atrocities Act, but in reality, it has diluted the
provisions of SC and ST.
I hope Parliament shall amend the Atrocities Act, 1989 and will make better laws for protection
of interest of Scheduled Castes and Scheduled Tribes than it was earlier.
296
―LAW RELATED TO RAPE OF WOMEN IN INDIA: AN INSIDE‖

Krishna Murari Yadav,229Arvind Chand230and Jayant Gupta231
―Rape victim is only and only rape victim. Please don‟t classify her on the basis of her previous
character, economic status, caste, religion, race, language and region and don‟t support
accused on the basis of his/her caste, religion, race, language and region.‖
―Rape for a woman is deathless shame and must be dealt with as the gravest crime against
human dignity.‖ Justice Krishna Ayer.232,
SUMMARY-
(1) Abstract, (2) Kew words (3) Introduction (4)Constitution of India and Leading Cases(5)
Code of Criminal Procedure and Leading Cases, (6) Indian Penal Code and Leading Cases, (7)
Indian Evidence Act and Leading Cases (8)Family Law and Cases (9) POCSO and Leading
Cases (10) Important Statistics (11) Suggestions and (12) Conclusion.
(1) ABSTRACT-
Rape destroys not only body of woman but also her soul. Although she alive but she always feels
dead. It is the most heinous crime in the world. Crime against women is increasing by leaps and
bounds. Kathua233 and Unnao234 rape cases are direct attack on a civilized nation in which
accused were patronized on the basis of religion, caste and political status. We have disturbing
figure of four rape committed in every hour. Several rape cases are not on record. It is
unfortunate that victim of rape is victimized by society. It is treated stigma over rape‘s victim
rather than an accused. This mind set of society must be changed and rape‘s victim must be
treated as innocent and should be respected in the society without any biasness. It is the
responsibility of the men not to commit rape. So they should be educated to respect dignity of
women. Role of family is conclusive to control the offences against women.
229
Assistant Professor, Faculty of Law, University of Delhi, Delhi. Email-
krishnamurari576@gmail.com. Contact Number-7985255882.
230
LL.B. – Faculty of Law, University of Delhi, Advocate- Delhi High Court. Email-
advarvindchand@gmail.com. Contact Number-9582179339.
231
LL.B.-Maharaja Balwant Singh P.G. College, Gangapur, Varanasi. Email-
jayantguptannn@gmail.com . Contact Number- 8574756247
232
Rafiq vs. State of U.P. August 14, 1980 Supreme Court.
233
Eight years girl child was gang raped and murder and some people and politicians tried to
save suspected accused on the basis of religion.
234
A minor girl was gang raped by politically influenced persons. She with her family met with
Chief Minister for help. Instead of getting support, she received dead body of her father who was
murdered in custody of police. After the public pressure and order of Allahabad High Court
action was taken. Suspected rapist was being patronized by State Government.
297
Preamble of Constitution of India, 1950 clearly talks about dignity of individual. State may
make special provisions for the protection of the interest of the women. 235 Right to life includes
dignified life.236 It is the duty of every citizen of India to renounce practices derogatory to the
dignity of the women.237Rape is an offence which is punishable under Indian Penal Code,
1860.238Rape is cognizable offence239 in respect of which FIR may cause to be lodged under
section 154 of Cr.P.C., 1973. There are several special protections have been provided for rape
victim. Under Section 114A of Indian Evidence Act240, in rape cases Court shall presume
absence of consent subject to fulfilment of other conditions. Justice J.S. Verma Committee was
constituted after Delhi Gang Rape Case241. It submitted its report in 2013. On the basis of this
report, Code of Criminal Procedure,1973, Indian Penal Code, 1860, Indian Evidence Act,1872
and Protection of Children from Sexual Offences Act, 2012 (POCSO) were amended. By support
of family, society, government, media, social media, NGOs and by proper implementation of
laws, this menace may be eradicated.
(2) KEY WORDS –
Life, Dignity, Rape, FIR, Cognizable Offence and Punishment.
(3) INTRODUCTION-
Rape is an offence against women. The word ‗women‘ denotes a female human being of any
age.242Age of seven and half month‘s girl baby was treated as a woman under Indian Penal Code,
1860.243When a person makes an assault with the intention of causing rape, victim may cause
any harm including death of assailant. Victim may claim right of private defence of body.244
Since 1860 to till now, law related to rape has been drastically changed. From the very
beginning, rape was categorized between two categories. On the basis of offender these
categories are-(1)Rape committed by person other than her husband (2) Rape committed by
husband. On the basis of consent, rape may be classified into two categories (1) Without
Consent and (2) With Consent. Although she has given consent but in reality that is not free
consent. There is difference between consent and free consent. For example a girl below the age
of eighteen years had given a consent and she consummated sex with a person whose age was 25
years. The girl below the age of 18 years was not competent to give consent. Such sexual
relationship is amount to rape. With the help of flow chart, it explained how age of rape victim
was changed year to year. Mathura Gang Rape case and Delhi Gang Rape case are milestone in
235
Constitution of India, 1950, Article 15 (3).
236
Maneka Gandhi vs. Union of India, AIR1978 SC 597. Date of Judgment- January 25, 1978.
237
Constitution of India, 1950, Article 51A (e).
238
The Indian Penal Code, 1860 (45 of 1860), section 376, 376A,376B, 376C, 376D, and 376E.
239
The Code of Criminal Procedure, 1973 (2 of 1974), the First Schedule (Classification of
Offences).
240
The Indian Evidence Act, 1872(1 of 1872).
241
Dec.2012
242
The Indian Penal Code, 1860 (45 of 1860), Section 10.
243
State of Punjab vs. Major Singh, AIR1967S.C.63.
244
298
history of rape law when due to pressure of public, Parliamentarian became bound to change the
law.
It has been clearly provided that if FIR is given by rape victim, it shall be recorded by a woman
police officer or any woman officer.245Rape is a cognizable offence.246 So accused shall be
arrested immediately without warrant. The investigation in relation to rape of a child may be
completed within three months from the date on which the information was recorded by the
officer in charge of the police station.247
Under Section 114A of Indian Evidence Act248, in rape cases Court shall presume absence of
consent subject to fulfilment of other conditions. In case of rape victim, it shall not be
permissible to adduce evidence or to put questions in the cross-examination of the victim as to
the general immoral character or previous sexual experience of victim of rape with any person
for proving consent or quality of consent.249
Wife may take divorce under personal law if her husband has committed rape.250
Under Constitution of India, rape word has not been mentioned. But preamble of Constitution of
India, 1950 clearly talks about dignity of individual. State may make special provisions for the
protection of the interest of the women.251 Right to life includes dignified life.252 It is the duty of
every citizen of India to renounce practices derogatory to the dignity of the women.253
(4) CONSTITUTION OF INDIA AND LEADING CASES
There are some leading cases related to rape which were discussed in the light of Constitution of
India.
SUMMARY OF CASES
Oct.1 Delhi Domestic Four domestic women servants were raped by seven army personnel in
9, Working Women‘s a running train ‗Muri Express‘ from Ranchi to Delhi. Writ petition was
1994 Forum Vs. UOI filed under Article 32. Compensation was granted and guidelines were
directed for speedy trial of such rape victim.
1996 Bodhisathwa Interim compensation of one thousands (Rs.10,00) per month for rape
Gautam vs. Subhra victim until her case is decided by trial Court was allowed.
Chakraborty
245
The Code of Criminal Procedure, 1973 (2 of 1974), Section 154.
246
The Code of Criminal Procedure, 1973 (2 of 1974), the First Schedule (Classification of
Offences).
247
The Code of Criminal Procedure, 1973 (2 of 1974), Section 173(1A).
248
The Indian Evidence Act, 1872(1 of 1872), Section 114A
249
The Indian Evidence Act, 1872(1 of 1872), Section 146.
250
The Hindu Marriage Act,1955, Section 13(2)(ii). Special Marriage Act,1954Section 27(1A),
Parsi Marriage and Divorce Act,1936, Section 32(d) Indian Divorce Act,1869 Section 10(2)
251
252
Maneka Gandhi vs. Union of India, AIR1978 SC 597. Date of Judgment- January 25, 1978.
253
Constitution of India, 1950, Article 51A (e).
299
2000 Chairman, Railway Rape of foreigner (Bangladeshi Woman) in a room at Yatri Niwas of
Board Vs. Howrah Railway station. The Court said that relief can be given to a
Chandrima Das foreigner for violation of Article 21 under public law. (Compensation
under Torts is private law). Compensation was allowed. Ten Lakhs
compensation were allowed.
11 Independent In all cases, sexual intercourse with a women including wife, if she is
Oct. Thought Vs. Union below the age of 18 years, is rape. Section 375 Exception 2 is arbitrary
2017. Of India & Anr to Articles 14, 15 & 21 of the Constitution of India.
(1) DELHI DOMESTIC WORKING WOMEN‘S FORUM VS. UOI254

In this case Supreme Court propounded following guidelines for assisting the victims of rape-
(1) Allotment of legal representation and his role.-The complainants of sexual assault cases
should be provided with legal representation. It is important to have someone who is well-
acquainted with the criminal justice system. The role of the victim's advocate would not only be
to explain to the victim the nature of the proceedings, to prepare her for the case and to assist her
in the police station and in court but to provide her with guidance as to how she might obtain
help of a different nature from other agencies, for example, mind counseling or medical
assistance. It is important to secure continuity of assistance by ensuring that the same person who
looked after the complainant's interests in the police station represent her till the end of the case.
(2) Legal assistance will have to be provided at the police station since the victim of sexual
assault might very well be in a distressed state upon arrival at the police station, the guidance and
support of a lawyer at this stage and whilst she was being questioned would be of great
assistance to her.
(3) Duty of Police- The police should be under a duty to inform the victim of her right to
representation before any questions were asked of her and that the police report should state that
the victim was so informed.
(4) List of advocates -A list of advocates willing to act in these cases should be kept at the police
station for victims who did not have a particular lawyer in mind or whose own lawyer was
unavailable.
(5)The advocate shall be appointed by the court, upon application by the police at the earliest
convenient moment, but in order to ensure that victims were questioned without undue delay,
advocates would be authorised to act at the police station before leave of the court was sought or
obtained.
(6) In all rape trials anonymity of the victim must be maintained, as far as necessary.
(7) It is necessary, having regard to the Directive Principles contained under Article 38(1)of the
Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently
incur substantial financial loss. Some, for example, are too traumatized to continue in
employment.
254
(1995)1SCC14.Date of Judgment-Oct.19,1994
300
(8) Compensation for victims by Court and Criminal Injuries Compensation Board-
Compensation for victims shall be awarded by the Courton conviction of the offender and by the
Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board
will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and
the expenses of child birth if this occurred as a result of the rape.
(2) BODHISATHWA GAUTAM VS. SUBHRA CHAKRABORTY255- Interim compensation of
One thousands Rs. (Rs.1000) per month for rape victim until her case is decided by trial Court
was allowed.
(3) THE CHAIRPERSON, RAILWAY BOARD & ORS. VS. MRS. CHANDRIMA DAS &
ORS.256Gang Rape was committed with Bangladeshi lady Smt. Hanuffa Khatoon by several
persons including railway employee in Railway Yatri Niwas at Howrah Station. Mrs. Chandrima
Das was a practicing advocate filed a wit petition under Article 226 and won the case in Calcutta
High Court. Against this Judgement, appeal was filed in Supreme Court. Supreme Court held
that ‗person‘ used under Article 21, so Article 21 is also available to foreigners. In case of rape
of foreigner, writ petition can be filed because right to life includes dignified life of every person.
Principle of Sovereign immunity could not be applied in this case. Rs.10 lacs compensation
given by Calcutta High Court was affirmed by Supreme Court. Article 21 was interpreted in
context of preamble of Charter of the United Nations and Universal Declaration on Human
Rights,1948.
(4) INDEPENDENT THOUGHT VS. UNION OF INDIA & ANR.257 By decision of this case
Supreme Court established parity among all women and prevented sexual harassment of women
for the name of marriage. Supreme Court held that sexual relations with wife, when wife is
below the age of 18 years is a rape. Section 375 Exception 2 is arbitrary to Articles 14, 15 & 21
of the Constitution of India. Court may take cognizance under section 198(6) of Cr. P.C. Now in
all cases, sexual intercourse with a women including wife, if she is below the age of 18 years, is
rape.
(5) CODE OF CRIMINAL PROCEDURE AND LEADING CASES

This topic is going to be discussed with the help of following important points-
(i) KINDS OF FIRST INFORMATION REPORT (FIR)-
There are two kinds of FIR. First type of FIR is duly signed FIR under Section 154(1) is by the
informant to the concerned officer at the police station. The second kind of FIR could be which
is registered by the police itself on any information received or other than by way of an
informant under Section 157(1) and even this information has to be duly recorded and the copy
should be sent to the Magistrate forthwith. The registration of FIR either on the basis of the
255
(1996)1 SCC 490.
256
Date of Judgement, January 28, 2000. (2000)2SCC465. AIR 2000 SC 988.
257
301
information furnished by the informant under Section 154(1) of the Code or otherwise
under Section 157(1) of the Code is obligatory.258
Again FIR may be divided into two categories on the basis of territorial jurisdiction of police
station, namely ‗Zero FIR‘ and ‗Normal FIR‘. FIR may cause to be lodged in any police station
and Officer-in- Charge of police Station shall not deny to register on the basis of his
investigating power on the basis of territorial jurisdiction. If he has not power to investigate the
matter and register the FIR , it shall be called ‗Zero FIR‘ because he does not give FIR number
and after recording it, he shall send that FIR to Officer-in- Charge of other Police Station which
has power to investigate the matter. ‗‗Normal FIR‘ means an FIR which is cause to be lodged in
a Police Station which has power to investigate the matter.
(ii)LODGING OF FIR IS MANADATORY
In the case of Lalita Kumari vs. Govt. of Uttar Pradesh259(2008) Justice B.N. Aggarwal at the
time of passing order stated reality of lodging FIR which are following, “ There are innumerable
cases that where the complainant is a practical person, FIRs are lodged immediately , copies are
made over to the complainant on the same day, investigation proceeds supersonic jet speed…In
the case before us allegations have been made that the Station House Officer of the concerned
Police Station is pressurizing the complainant to withdraw the complaint, which ,if true, is very
disturbing state of affairs . We don‟t know there may be innumerable such instances”. In this
case daughter of poor person was kidnapped and he was unable to lodge FIR.
Lalita Kumari Vs. Govt. of U.P260-Supreme Court laid down following guidelines regarding
lodging of FIR-
(1) Registration of FIR is mandatory under section 154, if the information discloses
commission of cognizable offences and no preliminary inquiry is permissible.
(2) In certain circumstances without preliminary inquiry, FIR cannot be lodged. Law is to
protect the interest of both i.e. victim and suspected person. Article 21 cannot be denied even for
accused. The category of cases in which preliminary inquiry may be made are as under: (a)
Matrimonial disputes/family disputes (b) Commercial offences (c) Medical negligence cases (d)
Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal
prosecution, for example, over 3 months‘ delay in reporting the matter without satisfactorily
explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all
conditions which may warrant preliminary inquiry. While ensuring and protecting the rights of
the accused and the complainant, a preliminary inquiry should be made time-bound and in any
case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in
the General Diary entry.‖
―Preliminary Inquiry‖ condition before lodging FIR would be hurdle and give one more chance
of pretext in lodging of FIR.
258
Lalita Kumari vs. Govt. of U.P.& Ors, Date of Judgment 12 November, 2013
259
2008(11)Scale 154.
260
(2014) 2 SCC 1. Date of Judgment 12 November, 2013
302
(3) REMEDY – IN CASE OF NON-REGISTRATION OF FIR BY POLICE UNDRE

SECTION 154
(i) Section 154(3) (ii) Section 36 (iii) Section 156(3) (iv) Section 200 (v) Section 482 (vi) Article
226
SAKIRI VASU VS. STATE OF UTTAR PRADESH261 In this case Supreme Court held,
―If a person has a grievance that his FIR has not been registered by the police station his first
remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police
officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or
the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate
under Section 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a
petition under Section 482 Cr.P.C. Moreover he has a further remedy of filing a criminal
complaint under Section 200 Cr.P.C.‖
In this case Supreme Court held that writ petition should be last option.
(2) INVESTIGATION -The investigation in relation to rape of a child may be completed within
three months from the date on which the information was recorded by the officer in charge of the
police station.262
(3) TRIAL- Rape cases shall be tried as for as practicable by a Court presided over by a
woman.263
The inquiry into or trial of rape cases shall be conducted in camera. 264 It shall not be lawful for
any person to print or publish any matter regarding proceeding except with previous permission
of the Court.265
(4) VICTIM COMPENSATION SCHEME – Victim shall be paid compensation under section
357A.266 The compensation payable by the State Government under section 357A shall be in
addition to the payment of fine to the victim under section 376D.267
(5) TREATMENT OF VICTIM- All hospitals, public or private whether run by Central
Government, State Government, local bodies or any person, shall immediately, provide the first-
aid or medical treatment , free of cost to the victim of rape.268
(6) INDIAN PENAL CODE AND LEADING CASES-
When a person makes an assault with the intention of causing rape, victim may cause any harm
including death of assailant. Victim may claim right of private defence of body.269
261
(2008)2SCC 409. Date of Judgment Dec.7,2007.
262
The Code of Criminal Procedure, 1973 (2 of 1974), Section 173(1A).
263
The Code of Criminal Procedure, 1973 (2 of 1974), Section 26.
264
The Code of Criminal Procedure, 1973 (2 of 1974), Section 327(2)
265
The Code of Criminal Procedure, 1973 (2 of 1974), Section 327(3)
266
The Code of Criminal Procedure, 1973 (2 of 1974), Section 357A
267
The Code of Criminal Procedure, 1973 (2 of 1974),Section 357B.
268
The Code of Criminal Procedure, 1973 (2 of 1974), Section 357C read with 166B of
IPC,1860.
303
(I) YESHWANT RAO VS. STATE OF M.P.270

Minor daughter of the accused had gone to the toilet on the rear side of the house. The deceased
gripped her and had sexual intercourse with her. The accused seeing his minor girl being raped
by the deceased hit the deceased with a spade. Daughter was minor so her consent was
immaterial and act of the deceased would amount to committing rape under section 376 and
hence the father in defence of the body of his daughter was justified in exercising his right of
private defence Section 100 Thirdly.
(ii) TUKARAM VS. STATE OF MAHARASHTRA271 (Mathura Rape case)
Mathura was a girl who was raped in Police Station by two policemen. Accused was acquitted by
Supreme Court on the ground that there was implied consent. Implied consent was drawn on the
basis that there was no injury on the body of victim. This judgment was vehemently criticized by
public and jurist. Mathura Case which led to the Criminal Law Amendment Act,1983.
CHART RELATED TO 1983 & 2013 AMENDMENTS RELATED TO RAPE.
AMENDMENT IN
1983
Reasons of The Criminal Law The 1983 Act discussed what constituted custodial
Amendment, (Amendment) Act, rape, provided for enhanced punishments under S.
1983 was 1983. 376(2), and brought in presumption of absence of
Mathura Tuka Ram & Anr. consent in cases booked under section 376(2) IPC,
Case (1979) Vs. State of 1860. This was done by bringing in an amendment in
Maharashtra the Indian Evidence Act; section 114(A) IEA.
IPC Punishment of rape were substituted- Sections 375 and
376.
Indian Evidence Act 114A- – Presumption as to absence of consent in rape
cases were inserted.
Cr.PC. S. 327(2) In case of rape trial, in camera proceedings to
be conducted; S.327(3) it shall not be lawful for any
person to print or publish any matter regarding
proceeding.
AMENDMENT in
2013
Delhi Gang The Criminal Law (1)S.166APublic Servant denying to register FIR, he
Rape Case (Amendment) Act, shall be punished,(2)S. 166BIn-charge of hospital shall
(16Dec.2012) 2013 First time death be punished for non-treatment of victim (3)– S. 375:
& sentence in rape case Rape, ,(4) –S. 376 : Punishment for Rape, ,(5) – S.
J.S.Verma was provided in two 376A : Punishment for causing death or persistent
Committee circumstances namely vegetative state due to rape, ,(6) –S. 376B-Sexual
Report- The (1) S. 376A, Intercourse by husband upon his wife during
Committee separation, ,(7) –S.376C -Sexual Intercourse by a
269
270
AIR 1992 SC 1683. Date of Judgment- 4 May, 1992.
271
Supreme Court , Date of Judgment15th September 1978,
304
submitted its Person in Authority,(8) - S. 376D – Gang rape, ,(9) -

report on S.376E- Punishment for repeat,
January 23,
2013.
(IV) DEEPAK GULATI VS. STATE OF HARYANA272- Intercourse under promise to marry
constitutes rape only if from initial stage accused had no intention to keep promise. An accused
can be convicted for rape only if the court reaches a conclusion that the intention of the accused
was mala fide and that he had clandestine motives.
(V)Mukesh and Anr. vs. State for NCT of Delhi273
(VI) INDEPENDENT THOUGHT VS. UNION OF INDIA & ANR.274 Sexual relations with
wife, when wife is below the age of 18 years is rape. Section 375 Exception 2 is arbitrary to
Articles 14, 15 & 21 of the Constitution of India. Court may take cognizance under section
198(6) of Cr. P.C. Now in all cases, sexual intercourse with a women including wife, if she is
below the age of 18 years, is rape. In this way, now, there is no difference between unmarried
and married women. If wife is below the age of 18 years, and husband makes sexual relation
with his wife whether with consent or without consent, it would be amount to rape.
FLOW-CHART
Year Age of Age mentioned in the Minimum age of
Consent under exception to sec.375 marriage under the
section 375, 6th Child Marriage
Clause IPC Restraint Act, 1929
1860 10 10 -
1891(After amendment 12 12 -
of IPC)
1925(After amendment 14 13 -
of IPC)
1929( After the passing 14 13 14
of Child Marriage
Restraint Act, 1929)
1940 (After the passing 16 15 15
of Child Marriage
Restraint Act, 1929 and
IPC)
1978 16 15 18
2017 18 15 PCMA, 2006. 18
(F) 21(M)
272
Date of Judgment –May 20, 2013.
273
Date of Judgment-05 May,2017.
274
Date of Judgment11Oct.2017.
305
COMPARISON BET. BEFORE AND AFTER 2013 AMENDMENT REGARDING RAPE

Before 2013 Amendment After 2013 Amendment
Definition Sexual Intercourse was necessary. Now sexual intercourse is not
of Rape Earlier insertion of penis into vagina necessary. Penetration of penis into the
was necessary. Such sexual vagina, mouth, urethra or anus of a
intercourse must be in six woman or insertion of any object into
circumstances namely , vagina, urethra or anus is sufficient. If a
Firstly- Against her will. man manipulates any part of the body
Secondly—Without her consent. of woman for penetration or applies his
Thirdly— With her consent, when her mouth to the vagina, urethra or anus of
consent has been obtained by putting a woman or make her to do so against
her or any person in whom she is her will or without her consent or with
interested in fear of death or of hurt. or without her consent, when she is
Fourthly..Fifthly.. Sixthly — With or under eighteen years of age is rape.
without her consent, when she is under
sixteen years of age. Explanation.
Age to give Section 375 Sixthly — With or without Section 375 Sixthly — With or without
consent her consent, when she is under sixteen her consent, when she is under eighteen
years of age. years of age.
New There were six categories of consent. Now, there are seven categories of
ground consent.
regarding Seventhly- When she is unable to
consent communicate consent.
Punishment There was no provisions regarding There are two circumstances when in
punishment of death sentence. rape cases death sentence may be
awarded. These two cases are (1)
Section 376A-Punishment for causing
death or resulting in persistent
vegetative state of victim. (2) Section
376E- Punishment for repeat offenders.
Exception There was one exception- Sexual There are two exceptions.
intercourse by a man with his own Exception1-A medical procedure or
wife, the wife not being under fifteen intervention shall not constitute rape.
years of age, is not rape. Exception2-Sexual intercourse by a
man with his own wife, the wife not
being under fifteen years of age, is not
306
rape.
Exception 2 does not exist after
decision of Independent Thought vs.
Union of India & Anr.275
(7) INDIAN EVIDENCE ACT AND LEADING CASES

In rape cases Court shall presume absence of consent subject to fulfilment of other conditions.276
In case of rape victim, it shall not be permissible to adduce evidence or to put questions in the
cross-examination of the victim as to the general immoral character or previous sexual
experience of victim of rape with any person for proving consent or quality of consent.277 Section
53A also says that character of victim shall not be relevant on the issue of her consent or the
quality of consent.
(8) FAMILY LAW AND CASES -Wife may take divorce under personal law if her husband has
committed rape.278
(9) PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012 (POCSO)
Protection of Children from Sexual Offences Act, 2012 (POCSO) was enacted in pursuance of
Article 15(3) of Constitution of India and Convention on the Rights of the Child, 1989. This Act
came into force on November 14, 2012. Under this Act, it has been provided for the
establishment of Special Court, Special Public Prosecutor and Special Juvenile Police Unit so
that better protection may be given to children.
CONFLICT BETWEEN PROTECTION OF CHILDREN FROM SEXUAL OFFENCES
ACT, 2012 AND SECTION 375, EXCEPTION 2.
For the purpose of POCSO Act, 2012 a person who is below the age of eighteen years is a
child.279 According to section 2(2) of this Act, any word which has been used in this Act but not
defined in this Act and defined in IPC, 1860, Cr.P.C.1973 or Information Technology Act, 2000
shall have the same meaning respectively assigned to them in IPC, 1860, Cr.P.C.1973 or
Information Technology Act, 2000 . Here child has not been divided on the basis of married.
Sexual relation with any child below the age of 18 is an offence.
Exception of Section 375 was clearly saying that sexual relation by husband with his wife even
below the age of 18 years and above 15 years was not rape. So it was direct conflict between two
statutes. This controversy was settled down by the decision of Independent Thought vs. Union
of India & Anr.280
275
Available at: https://indiankanoon.org. (Visited on April 10, 2018). Date of
Judgment11Oct.2017.
276
The Indian Evidence Act, 1872(1 of 1872), Section 114A.
277
The Indian Evidence Act, 1872(1 of 1872), Section 146.
278
The Hindu Marriage Act,1955, Section 13(2)(ii). Special Marriage Act,1954Section 27(1A),
Parsi Marriage and Divorce Act,1936, Section 32(d) Indian Divorce Act,1869 Section 10(2)
279
Protection of Children from Sexual Offences Act, 2012 (No. 32 of 2012).Section 2(1) (d).
280
Date of Judgment11Oct.2017.
307
In this case Supreme Court held that a man will be punished for rape if he is found to be guilty of
having sexual intercourse with his minor wife i.e. below the age of 18 years.
With this verdict, the Supreme Court has ended the disparity between this exception to Section
375, which allows a husband to have sexual relationship with his 15-year-old wife, and the
definition of ‗child‘ in recent laws such as the Protection of Children from Sexual Offences Act,
2012, which includes any person below the age of 18.
(10) IMPORTANT STATISTICS THROUGH GRAPHICAL REPRESENTATION OF RAPE

CRIME IN INDIA
Number of Cases Reported Of Rape in India

(Year wise)
40000 36735 36657
33707 34651
35000
30000 2011
24206 24923
25000 2012
20000 2013
15000
2014
10000
2015
5000
0 2016
Year 2011 2012 2013 2014 2015 2016
Graph 1
308
Source: National Crime Record Bureau (NCRB )281

National Crime Record Bureau (NCRB) introduced the reporting of Rape in its crime report after
1971 in which 2487 cases were registered and since then the cases kept on increasing and in
2016 report of NCRB total 36657 cases were reported which shows that in every one hour 4
cases get reported. 36657 total number of rape offences committed in 2016 / 365 Days =
100.430136. 100.430136 /24 hour = 4.184. According to this analysis, it can be said that in each
hour, four rape are being committed in India. There are several cases are not on record otherwise
it may be eight rape cases in each hour. It shows that Indian people is not civilized.
Status Report of Rape Cases In India

Year wise
6289
7195
Person Convicted 6637
6892
4821
43525
39494
Person Chargesheeted 41914
37856
28925
48797
42036
Person Arrested 48193
42115
31117
4739
5514
Cases Convicted 4944
5101
3563
33628
30001
Number of Chargesheeted 30840
28755
21565
36657
34651
Number Of Cases Registered 36735
33707
24923
0 10000 20000 30000 40000 50000 60000
2016 2015 2014 2013 2012
Graph 2
SOURCE: NCRB282
281
Available at:www.ncrb.gov.in (Visited on April 11,2018).
282
Available at: www.ncrb.gov.in (Visited on April 12, 2018).
309
(11) SUGGESTIONS-
Whenever rape is occurred, some people started to say that rape of General/OBC/Dalit girl has
been committed. If same types of rape is committed in Delhi or capital of State and for away area
from capital of country or State media, politicians and society never give much more attention
whatever occurred in rural areas or with poor person. But, if it happened in Delhi or with rich
persons, situations become totally different. There are following suggestions-
(1) Rape victim is only and only rape victim. She should not be classified on the basis of
her previous character, economic status, caste, religion, race, language and region.
Accused on the basis of his/her caste, religion, race, language and region should not be
patronized.
(2) Protection of witness is still problem. There is need of strict laws and its
implementation.
(3) It is a collective responsibility of family, society, government, media, social media and
NGOs. So everyone must perform its own duties.
(4) There are sufficient laws on the point of rape. But problem is regarding implementation
of laws. So sensitization regarding rape menace is necessary.
(5) There should be an independent investigative wing for investigation for offences
against women and offences against body. With officials from State and Center comprising
of expert incidence collection team which is only concern of collection of evidence at
primary level there aftertheir role shall be reduced.
This can reduce the unwarranted political, executive pressure which will keep fair
investigation which plays a critical role for any case
(6) Rampant bribery among public prosecutors is a horrible problem. It is public opinion
that 90% Public Prosecutors of Bihar are corrupt. More or less it is situation of all over
India. They never plead cases of poor person seriously. There must be an investigating
agency with teeth to supervise the cases tackled by Public Prosecutors.
(12) CONCLUSION.
At present the crime against women has increased in several decades and rape cases have taken a
huge jump in numbers, and their trial takes a longer course of time despite guidelines of the
Supreme Court for formation of the fast track courts for separate trial of rape cases. There are
many reasons like insufficient evidence, delay in trial, frequent strikes of advocates in district
court hampers judicial process and causes delay. During the research we found huge ignorance in
abiding the SC guidelines settled in the major recent and past judgments. Rape not only destroys
the body of a woman but during trial it gives a negative impact on the psychology and her
behavior towards the society. She suffers a big problem in leading a normal life. The ghost of
that moment keeps haunting until and unless she gets justice.
The implementation of the Code of Criminal Procedure, Indian Penal Code, Indian Evidence Act
and other special laws with effective fast trial will not only build the confidence in system but
also reduce the other crimes against women in India.
310
The State Government should keep the investigation process more specific and strict instructions
should be given to prosecutors to take forward the case on day to day hearing. As every day there
are approximately hundreds of rape get committed in India. Speedy trial and convictions may
give deterrent effect on potential criminals.
The women organizations and NGO‘s play a crucial role in making the law more applicable by
creating awareness and reporting the cases and counseling of victims. The Counseling of the
accused is also very important to realize the sin they have committed and to lead a decent life
after the completion of sentence. The categorization of rape cases through cast, religion, race etc.
for political mileage, through different social media in recent has emerged as a bane for society
but at the same time it has given a big platform for reporting of cases where there is delay in
filing of the FIR and creating a pressure for proper investigation. But at the same time the social
media users should refrain themselves in sharing of fake news and giving a negative aspect to
social media platforms. The Media and social media should use the information very sincerely
and rape against women should be treated as rape case only. By doing so we can avoid the
undue, political pressure on investigating officers.
Government should take measures to do fast and speedy trial of the rape cases which will restore
the trust of people in government.
311
SPECIAL FEATURES OF THE CRIMINAL LAW (AMENDMENT) ORDINANCE, 2018.283

By this ―Ordinance‖ changes have been done in IPC, 1860, Indian Evidence Act, 1872, Code of
Criminal Procedure, 1973 and Protection of Children from Sexual Offences Act, 2012. Rape has
been classified into four categories- (1) Rape with girl below the age of twelve years (2) Rape
with girl below the age of sixteen years (3) Rape with girl below the age of eighteen years (4)
Rape above the age of eighteen years.
Provisions Before Criminal Law (Amendment) After Criminal Law (Amendment)
Ordinance, 2018. Ordinance, 2018.
INDIAN PENAL CODE,1860 INDIAN PENAL CODE,1860
Section 166A (c) Public 376B,376C, 376D, and 376E 376AB, 376B, 376C, 376D, and 376DA,
servant disobeying Substituted by 376DB.
direction under law.
Section 228A 376A,376B,376C, 376D, Section 376 A, Section 376AB, 376B,376C,
Disclosure of identity 376D, and 376DA, 376DB.
Section 376(1) …not be less than seven years but …not be less than ten years but which may
Punishment for rape which may extend to imprisonment extend to imprisonment for life..
for life…
Section 376(2)(i) Rape on a woman when she is Deleted
under sixteen years of age
Section 376 (3) Section 376 (3) was absent. Newly inserted.
(It had been provided under Section Rape on a woman when she is under sixteen
376(2) (i) for which punishment years of age – Not less than twenty years –
was……. which may be imprisonment for life.
not be less than ten years but which
may extend to imprisonment for life..
Section 376 A Section 376 A Section 376 A (No change)
Section 376 AB Absent Inserted. Punishment-
Rape with girl below Not less than twenty Years – up to LI and
the age of 12 Years fine or Death sentence
Section 376DA Life Imprisonment
Punishment for gang
rape on a women under
sixteen years of age
Section 376DB LI and Fine or Death Sentence
Punishment for gang
rape on a women under
twelve years of age
Omitted Substituted Inserted
Section 376(2)(I) Section 166A,Section 228 A, Section 376(3), Section 376AB, Section
283
This Ordinance has been issued by President under Article 123(1). This Ordinance was signed
by president on 22nd April, 2018.
284
Assistant Professor, Faculty of Law, University of Delhi, Delhi.
312
Section 376(1) 376DA, Section 376DB

INDIAN EVIDENCE ACT, 1872
Provision Before Criminal Law (Amendment) After Criminal Law (Amendment)
Section 53A Section 376A, Section 376B, Section 376A, Section AB, Section 376B,
Substituted Section C and 376 D Section C and 376 D, Section 376D and
Section 376DA and Section 376 DB.
Section 146 Section 376A, Section 376B, Section 376A, Section AB, Section 376B,
CODE OF CRIMINAL
PROCEDURE, 1973
Provision Before Criminal Law (Amendment) After Criminal Law (Amendment)
Section 26 Substituted Section 376A, Section 376B, Section 376A, Section AB, Section 376B,
Section C and 376 D Section C and 376 D, Section 376D and
Section 164 (5A) Section 376A, Section 376B, Section 376A, Section AB, Section 376B,
Section 173(1A) Investigation in relation to rape of Investigation in relation to rape of child
Substituted child may be completed within three shall be completed within two months
months
Section 309 When the inquiry or trial relates to When the inquiry or trial relates to an
Substituted an offence under Section 376A, offence under Section 376A, Section AB,
Section 376B, Section C and 376 D Section 376B, Section C and 376 D, Section
the inquiry or trial shall, AS FOR 376D and Section 376DA and Section 376
AS POSSIBLE, be completed DB of IPC, the inquiry or trial shall be
within the period of two months completed within the period of two months
from the date of filling of the charge from the date of filling of the charge sheet.
sheet.
Section 327(2) Section 376A, Section 376B, Section 376A, Section AB, Section 376B,
Substituted Section 376DA and Section 376 DB.
313
Section 357 B- Section 326A and Section 376D Section 326A and Section 376AB, Section
Substituted D, Section DA and Section DB.
Section 357 C- Section 376A, Section 376B, Section 376A, Section AB, Section 376B,
Section 377 (3)Appeal There was no limitation period Section 377 (3)- When appeal has been
Inserted disposal of appeal filed against a sentence passed under
Section 376A, Section AB, Section 376B,
Section C and 376 D, Section 376D and
Section 376DA and Section 376 DB of IPC
, the Appeal shall be disposed of within a
period of six months from the date of filing
of such appeal
DEFECTIVE REASON - Section 377 (3) has It is a silly mistake and human error.
ORDINANCE been inserted without either
substituting clause (3) or
renumbering clause (3) as clause
(4).
Section 438 (4) Absent No anticipatory bail when offence is related

Inserted. to Section 376(3), Section 376AB Section
376DA and Section 376 DB.
Section 439 (1) Second Absent High Court or Court of Session shall before,
Proviso before granting a bail to a person who is
Inserted accused of an offence under Section 376(3),
Section 376AB Section 376DA and Section
376 DB give notice to the application for
bail to the Public Prosecutor within a period
of fifteen days from the date of receipt of
the notice of such application.
Schedule Section 376 AB, Section DA, Section DB,-,
Cognizable, Non-Bailable , Court of
Session
Protection of Children From
Sexual Offences Act, 2012
Section 42 Section 376A, Section C, Section D Section 376A, Section 376AB, Section
Substituted 376B, Section 376C, Section 376D, Section
376DA and Section 376 DB.
There are following special features of this ‗Ordinance‘-

(1) AMENDMENTS IN FOUR STATUTES- By this ―Ordinance‖ changes have been done in
IPC, 1860, Indian Evidence Act, 1872, Code of Criminal Procedure, 1973 and Protection of
Children From Sexual Offences Act, 2012.
314
(2) CLASSIFICATION OF RAPE VICTIMS ON THE BASIS OF AGE- Rape has been
classified into four categories- (1) Rape with girl below the age of twelve years – Section
376AB and Section 376 DB.(2) Rape with girl below the age of sixteen years Section 376DA
(3) Rape with girl below the age of eighteen years Section 376(1) (4) Rape above the age of
eighteen years.
(3)ENHANCEMENT OF PUNISHMENT- (i) Minimum Punishment- (a) According to section
376(1), minimum punishment in rape cases is 10 years. Earlier minimum punishment was seven
years.
(b)Minimum Punishment for Rape with women below the age of 16Years- According to
section 376(3), rigorous punishment for a term which shall not be less than twenty years.
(c )Minimum Punishment for Rape with women below the age of 12 Years- According to
section 376AB, rigorous punishment for a term which shall not be less than twenty years and
which may extent to LI or death sentence.
(ii) Life Imprisonment- According to Section 376DA Punishment for gang rape on a women
under sixteen years of age is imprisonment for life which shall mean imprisonment for the
remainder of that person‘s natural life, and with fine.
(iii) Death Sentence - (Section 376 AB Section 376DB)- Two more categories of offences
related to rape have been inserted when death sentence may be awarded. After this ―Ordinance‖
there are four categories of offences related to rape when death sentence may be awarded.
DEATH SENTENCE IN RAPE CASES

S.N. Ordinance/ Provisions Punishment
THE CRIMINAL LAW (AMENDMENT) ORDINANCE,
2013(NOW ACT)
2013
1 Section 376A- Punishment for causing death or resulting in persistent Death Sentence
vegetative state of victim
2 Section 376E- Punishment for repeat offenders. Death Sentence
THE CRIMINAL LAW (AMENDMENT) ORDINANCE, 2018.285
2018
3 Section 376AB- Rape with women below the age of 12 Years Death Sentence
4 Section 376DB- ―Gang Rape‖ with women below the age of 12 Years Death Sentence
RAPE OF WOMEN AND PUNISHMENT

S.N. Age of Woman Punishment Sections
1 Under 12 Years
2018 Rape of Woman under 12 Years Minimum 20Years in Jail or Section 376AB
LI or Death Sentence
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This Ordinance has been promulgated by President under Article 123(1) on 22nd April, 2018.
315
2018 Gang Rape of Woman under 12 Years LI and Fine or death Section 376DB
Sentence
2 Under 16 Years
2018 Rape of Woman under 16 Years Minimum punishment 20 Section 376(3)
years (Earlier it was 10Years)
which may extend to LI and
fine.
2018 Gang Rape of Woman under 16 Years LI and Fine Section 376DA
3 Under 18 Years
years (Earlier it was 7 Years)
fine.
2013 Gang Rape of Woman under 18 Years Not less than 20 years which Section 376D
may extend to LI and fine.
4 Under or above 18 Years Rape
whether rape has been committed with
or without consent
years (Earlier it was 7 Years)
fine.
2013 Gang Rape of Woman under 18 Years Not less than 20 years which Section 376D
may extend to LI and fine.
(4) INVESTIGATION- Investigation in relation to rape of child shall be completed within two
months. Earlier period was three months. Earlier it was not mandatory to complete investigation
within three months. Now it is mandatory to complete investigation within two months.
(5) TRIAL- When the inquiry or trial relates to an offence under Section 376A, Section AB,
Section 376B, Section C and 376 D, Section 376D and Section 376DA and Section 376 DB of
IPC, the inquiry or trial shall be completed within the period of two months from the date of
filling of the charge sheet. Earlier it was discretionary power of court to complete trial as for as
possible within two months. Now it is mandatory to complete trial within two months.
(6) LIMITATION PERIOD FOR DECISION OF APPEAL-Section 377 (3)- When appeal has
been filed against a sentence passed under Section 376A, Section AB, Section 376B, Section C
and 376 D, Section 376D and Section 376DA and Section 376 DB of IPC , the Appeal shall be
disposed of within a period of six months from the date of filing of such appeal.
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LIMITATION PERIOD
Ordinance
The Criminal Law (Amendment) The Criminal Law (Amendment)
Ordinance, 2013(Now Act) Ordinance, 2018
Limitation Three months - Investigation in Two Months -Investigation in relation
Period for relation to rape of child may be to rape of child shall be completed
Investigation completed within three months. within two months. Now it is mandatory
It was discretionary power. to complete investigation within two
Section 173(1A). months. Section 173(1A).
Three months Two Months

Discretion Mandatory
Limitation Section 376A, Section 376B, Section 376A, Section AB, Section
Period for Trial Section C and 376 D 376B,
Section C and 376 D, Section 376D and
When the inquiry or trial relates to When the inquiry or trial relates to an
an offence under Section 376A, offence under Section 376A, Section
Section 376B, Section C and 376 AB, Section 376B, Section C and 376
D the inquiry or trial shall, AS D, Section 376D and Section 376DA
FOR AS POSSIBLE, be and Section 376 DB of IPC, the inquiry
completed within the period of two or trial shall be completed within the
months from the date of filling of period of two months from the date of
the charge sheet. filling of the charge sheet.
Two Months Two Months
As for as possible… It was , the inquiry or trial shall be completed..
discretionary power of Court. Now it is mandatory.
Limitation On this point law was silent. Section 377 (3)- When appeal has
Period for been filed against a sentence passed
disposal of under Section 376A, Section AB,
Appeal Section 376B, Section C and 376 D,
Section 376D and Section 376DA and
Section 376 DB of IPC , the Appeal
shall be disposed of within a period of
six months from the date of filing of
such appeal.
No limitation period Six Months
Remarks Limitation period for Limitation period for appeal– Three
investigation and trial – Two Months
Months
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(7) ANTICIPATORY BAIL Section 438 (4)--No anticipatory bail when offence is related to
Section 376(3), Section 376AB Section 376DA and Section 376 DB.
ANTICIPATORY BAIL and RAPE

BAIL RAPE Important Point
RAPE ANTICIPATORY Section 376(3) Rape with a woman below the
Section 438(4) BAIL IS NOT Section 376AB age of sixteen years, anticipatory
ins. by 2018 ALLOWED (Only in Section 376DA bail is not allowed.
Ordinance. those rape case and Section 376DB
punishment which
have been inserted in
2018)
Section 376(3) Rape on a woman when she is
under sixteen years of age.
Sect.376 AB Rape with girl below the age of
12 Years
Section 376DA Punishment for gang rape on a
women under sixteen years of
age
Section 376DB Punishment for gang rape on a
women under twelve years of
age
RAPE ANTICIPATORY Section 376 (1)
BAIL IS ALLOWED Section 376 (2)
Section 376 A
Section 376 B
Section 376 C
Section 376 D
Section 376 E.
SUGGESTIONS FOR BETTER ‗ORDINANCE‘- It is very unfortunate that this ‗Ordinance‘

has been passed to appease people without any solution. We had to learn that merely making
laws were not sufficient to control this menace. Before five years same types of ―Ordinance‖ had
been passed due to pressure of public after Nirbhya Rape case but this menace could not be
controlled. Again same four statutes have been amended through ―Ordinance‖ due to pressure of
public after Kathua and Unnao Rape Cases. Main problem is on the point of implementation of
laws in which our Governments are totally failed. There are following suggestions to eradicate
this evil-
(1) Independent and Separate Police wing,
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(2) Enhancement of number of Police including women police with sophisticated weapons,
(3) Number of judges and Public Prosecutors including women judges and Public Prosecutors
must be increased,
(4) Establishment of Fast Track Courts,
(5) Investigation, rape and appeal must be concluded within certain time in all rape cases. It
should not been confined only to child rape victims.
(6) Need for free and qualitative educations at all level. There are several School, college and
universities which are running without staff and facilities on record. So at base level, students
are not getting opportunity to imbibe morality.
(7) Creating environment for good job in working conditions.
(8) Need of banning the websites showing illegal and immoral things and banning prostitution...
strictly following of decency in case of print & electronic media along with the films and serials.
(9)Empowerment of girls in education and self -protection mechanism must be development.
CONCLUSION- This ―Ordinance: is nice piece of legislation. Government understood feeling of

common men and this Ordinance was promulgated. But is very shocking for public that rape
laws have amended only due to public pressure. First time major amendment was done after
decision of Mathura Rape case in 1983. Second time after ―Nirbhaya Gang Rape Case in 2013
and third time after Kathua, Unnao and Surat Rape case in 2018.But till now this menace is
increasing leaps and bounds even after several good piece of legislation. It clearly shows that on
the part of implementation of laws all government either Congress Government or NDA
Government had been totally failed. They show their concern but in reality they are not concern.
I hope, Governments will concern over implementation of laws and would uproot this menace.
319
50000
Congress vs. BJP 44676

45000
40967
40000 39088
35000 33707
30000
24929
25000 24206
20000
15000
FINAL LOSS TO PUBLIC

10000
5000
0
Year 2011 Year 2012 Year 2013 Year 2014 Year 2015 Year 2016
320
1993-2016
50000
44676
45000
40967
40000 39088
35000 33707
30000
24929
25000 24206
22172
21467
21397
20737
20000 19348
18359
18233
16496 16373
16075
15330 15468 15847
14846 15151
15000 13754
12351
11242
10000
5000
321
THE FUGITIVE ECONOMIC OFFENDERS ORDINANCE, 2018 (NO.1 OF 2018)

The Fugitive Economic Offenders Ordinance was signed and promulgated by President of India
on April 21, 2018. It is the first ordinance promulgated in 2018. It was very necessary to control
economic offences. It was necessary after fleeing of Lalit Modi, Vijay Malya, Nirav Modi,
Mehul Choksi Sanjay Bhandari, Sunnni Karla, Soumit Jena, Vijaykumar Revabhai Patel, Sunil
Ramesh Rupani, Pushpesh Kumar Baid, Surender Singh, Angad Singh, Harsahib Singh, Harleen
Kaur, Ashish Jobanputra, Jatin Mehta, Chetan Jayantilal Sandesara, Dipti Chetan Sandesara,
Nitin Jayantilal Sandesara, Sabhya Seth, Nilesh Parrekh, Umesh Parekh, Sunny Kalra, Aarti
Kalra, Sanjay Kalra, Varsha Kalra, Hemant Gandhi, Ishwarbhai Bhat, M.G. Chandrasakhar,
Cheriya Vannarakkal Sudeer, Nausha Kadeejath Cheriya Veettil Sadique etc. from India.287
OBJECT OF ORDINANCE- Preamble of Ordinance clearly enumerate object of the ordinance.

According to preamble, ―An Ordinance to provide for measures to deter fugitive economic
offenders from evading the process of law in India by staying outside the jurisdiction of Indian
courts, to preserve the sanctity of the rule of law in India and for matters connected therewith or
incidental thereto‖.
REASON OF PROMULGATION OF ORDINANCE- The Fugitive Economic Offenders Bill,
2018 was introduced on the 12th day of March, 2018 in the House of the People and the said Bill
could not be taken up for consideration and passing in the House of the People, Parliament was
286
287
21 March, 2018 Minister of State for External Affairs M.J. Akbar gave a list of 31 persons
who are under investigation by the Enforcement Directorate and the CBI.
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not in session and the President was satisfied that circumstances exist which render it necessary
for him to take immediate action.
DEFINITION OF FUGITIVE ECONOMIC OFFENDER- According to Section 2 (f)
―fugitive economic offender‖ means any individual against whom a warrant for arrest in relation
to a Scheduled Offence has been issued by any Court in India, who— (i) has left India so as to
avoid criminal prosecution; or (ii) being abroad, refuses to return to India to face criminal
prosecution;
DEFINITION OF FUGITIVE SPECIAL COURT- According to Section 2 (n) ―Special Court‖
means a Court of Session designated as a Special Court under sub-section (1) of section 43 of the
Prevention of Money-laundering Act, 2002.
DECLARATION OF FUGITIVE ECONOMIC OFFENDER- Section 12 (1)- According to
Section 12(1), after hearing the application under section 4, if the Special Court is satisfied that
an individual is a fugitive economic offender, it may, by an order, declare the individual as a
fugitive economic offender for reasons to be recorded in writing.
EFFECT OF DECLARATION OF FUGITIVE ECONOMIC OFFENDER- Section 12 (2)
According to Section 12(2), on a declaration under sub-section (1), the Special Court may order
that any of the following properties stand confiscated to the Central Government— (a) the
proceeds of crime in India or abroad, whether or not such property is owned by the fugitive
economic offender; and (b) any other property or benami property in India or abroad, owned by
the fugitive economic offender.
According to Section 12(3), the confiscation order of the Special Court shall, to the extent
possible, identify the properties in India or abroad that constitute proceeds of crime which are to
be confiscated and in case such properties cannot be identified, quantify the value of the
proceeds of crime.
BAR OF JURISDICTION, SECTION 18- According to Section 18, no civil court shall have
jurisdiction to entertain any suit or proceeding in respect of any matter which the Special Court is
empowered by or under this Ordinance to determine and no injunction shall be granted by any
court or other authority in respect of any action taken or to be taken in pursuance of any power
conferred by or under this Ordinance.
RULES OF EVIDENCE-Section 16-According to Section 16(1), the burden of proof for
establishing— (a) that an individual is a fugitive economic offender; or (b) that a property is the
proceeds of crime or any other property in which the individual alleged to be a fugitive economic
offender has an interest, shall be on the Director or the person authorised by the Director to file
the application under section 4.
(2) Notwithstanding anything contained in any other law for the time being in force, where any
person referred to in sub-section (2) of section 10 claims that any interest in any property was
acquired bona-fide and without knowledge of the fact that, such property constitutes proceeds of
crime, the burden of proving such fact shall lie upon him. (3) The standard of proof applicable to
the determination of facts by the Special Court under this Ordinance shall be preponderance of
probabilities.
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APPEAL- SECTION 17. According to Section 17(1), an appeal shall lie from any judgment or
order, not being an interlocutory order, of a Special Court to the High Court both on facts and on
law. (2) Every appeal under this section shall be preferred within a period of thirty days from the
date of the judgment or order appealed from.
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TEHSEEN POONAWALLA AND ORS VS UNION OF INDIA AND ANRS.

(JUSTICE LOYA‘S DEATH CASE)
Date of Judgment- 19 April, 2018, Supreme Court.
Bench: Hon‘ble CJI Dipak Misra , Justice M Khanwilkar, and Justice D Y Chandrachud
Facts- In the batch of petitions before Supreme Court, the petitioners seek an inquiry into the
circumstances of the death of Brijgopal Harikishan Loya. He was a judicial officer in the State of
Maharashtra in the rank of a district judge and died on 1 December 2014. Articles on his death
were published in the issues of Caravan magazine dated 20 and 21 November 2017. The first
article was titled ―A family breaks its silence : shocking details emerge in death of judge
presiding over Sohrabuddin trial‖.
Decision- All writ petitions were dismissed.
Misuse of Public Interest Litigation- This case is a glaring example of misuse of PIL.
Justice D Y Chandrachud said, ―The misuse of public interest litigation is a serious matter of
concern for the judicial process. Both this court and the High Courts are flooded with litigation
and are burdened by arrears. Frivolous or motivated petitions, ostensibly invoking the public
interest detract from the time and attention which courts must devote to genuine causes. This
court has a long list of pending cases where the personal liberty of citizens is involved. Those
who await trial or the resolution of appeals against orders of conviction have a legitimate
expectation of early justice. It is a travesty of justice for the resources of the legal system to be
consumed by an avalanche of misdirected petitions purportedly filed in the public interest which,
upon due scrutiny, are found to promote a personal, business or political agenda. This has
spawned an INDUSTRY OF VESTED INTERESTS in litigation. There is a grave danger that if
this state of affairs is allowed to continue, it would seriously denude the efficacy of the judicial
system by detracting from the ability of the court to devote its time and resources to cases
which legitimately require attention. Worse still, such petitions pose a grave danger to the
credibility of the judicial process. This has the propensity of endangering the credibility of other
institutions and undermining public faith in democracy and the rule of law. This will happen
when the agency of the court is utilised to settle extra-judicial scores. Business rivalries have to
be resolved in a competitive market for goods and services. POLITICAL RIVALRIES HAVE
TO BE RESOLVED IN THE GREAT HALL OF DEMOCRACY WHEN THE ELECTORATE
VOTES ITS REPRESENTATIVES IN AND OUT OF OFFICE. Courts resolve disputes about
legal rights and entitlements. Courts protect the rule of law…‖.
CONSTITUTION OF BENCHES AND ALLOCATION OF CASES
288
325

There are following leading cases related to this topic-
(1) STATE OF RAJASTHAN V. PRAKASH CHAND & ORS.
DOJ-25Nov.1997-Supreme Court had laid down -
(i) That the administrative control of the High Court vests in the Chief Justice alone. On the
judicial side, however, he is only the first amongst the equals.
(ii) That the Chief Justice is the master of the roster. He alone has the prerogative to constitute
benches of the court and allocate cases to the benches so constituted.
(iii) That the puisne Judges can only do that work as is allotted to them by the Chief Justice or
under his directions.
(iv) That till any determination made by the Chief Justice lasts, no Judge who is to sit singly can
sit in a Division Bench and no Division Bench can be split up by the Judges constituting the
bench themselves and one or both the Judges constituting such bench sit singly and take up any
other kind of judicial business not otherwise assigned to them by or under the directions of the
Chief Justice.
(iv) That the puisne Judges cannot ―pick and choose‖ any case pending in the High Court and
assign the same to himself or themselves for disposal without appropriate orders of the Chief
Justice. (6) That no Judge or Judges can give directions to the Registry for listing any case before
him or them which runs counter to the directions given by the Chief Justice.‖
(2) KAMINI JAISWAL VS. UNION OF INDIA & ANR.
DOJ- 14/11/2017
(Prasad Institute of Medical Science, Lucknow Case/ Shri I.M. Quddusi, retired Judge of the
High Court of Odisha Corruption Case/ Medical College Corruption Case). Justice R.K.
Agrawal, Justice Arun Mishra, Justice A.M. Khanwilkar
The petition was dismissed. Supreme Court setting aside the demand of SIT said that there was
no name of any sitting judge in FIR related to blacklisted Lucknow Medical College. It was held
that CJI alone had the power to assign the case to a bench even if there were allegations in the
matter against him. Stating that the petition itself was forum shopping and it contents amount to
contempt of Court. But the court said that it was not initiating contempt proceeding against
petitioner Jaiswal or her counsel Prashant Bhushan. Supremacy of CJI was established.
(3)ASHOK PANDEY VS. SUPREME COURT OF INDIA THROUGH ITS REGISTRAR
&ORS.
DOJ- 11/01/2018,
Bench- CJI Dipak Mishra, Justice A.M.Khanwilkar and Justice Dr. D.Y.Chandrachud
Main Issue- Constitution of Benches and Allocation of Cases
289
326
Writ Petition was dismissed.

Justice Dr. D.Y.Chandrachud said, ―Underlying the submission that the constitution of Benches
and the allocation of cases by the Chief Justice must be regulated by a procedure cast in iron is
the apprehension that absent such a procedure the power will be exercised arbitrarily. In his
capacity as a Judge, the Chief Justice is primus inter pares: the first among equals. In the
discharge of his other functions, the Chief Justice of India occupies a position which is sui
generis. Article 124(1) postulates that the Supreme Court of India shall consist of a Chief Justice
of India and other Judges. Article 146 reaffirms the position of the Chief Justice of India as the
head of the institution. From an institutional perspective the Chief Justice is placed at the helm
of the Supreme Court. In the allocation of cases and the constitution of benches the Chief
Justice has an exclusive prerogative. As a repository of constitutional trust, the CHIEF
JUSTICE IS AN INSTITUTION IN HIMSELF. The authority which is conferred upon the
Chief Justice, it must be remembered, is vested in a high constitutional functionary. The
authority is entrusted to the Chief Justice because such an entrustment of functions is necessary
for the efficient transaction of the administrative and judicial work of the Court. The ultimate
purpose behind the entrustment of authority to the Chief Justice is to ensure that the Supreme
Court is able to fulfil and discharge the constitutional obligations which govern and provide the
rationale for its existence. The entrustment of functions to the Chief Justice as the head of the
institution, is with the purpose of securing the position of the Supreme Court as an independent
safeguard for the preservation of personal liberty. There cannot be a presumption of mistrust.
The oath of office demands nothing less.‖
(i) Absolute power of CJI in the constitution of benches.
(ii) It is CJI‘s right to allot case
(iii) He is an institution in himself
(4)TEHSEEN POONAWALLA AND ORS VS UNION OF INDIA AND ANRS. (JUSTICE
LOYA‘S DEATH CASE)
Note – This case not directly related to constitution of benches and allocation of cases.
Date of Judgment- 19 April, 2018, Supreme Court.
Bench: Hon‘ble CJI Dipak Misra , Justice M Khanwilkar, and Justice D Y Chandrachud
Facts- In the batch of petitions before Supreme Court, the petitioners seek an inquiry into the
circumstances of the death of Brijgopal Harikishan Loya. He was a judicial officer in the State of
Maharashtra in the rank of a district judge and died on 1 December 2014. Articles on his death
were published in the issues of Caravan magazine dated 20 and 21 November 2017. The first
article was titled ―A family breaks its silence : shocking details emerge in death of judge
presiding over Sohrabuddin trial‖.
Decision- All writ petitions were dismissed.
Misuse of Public Interest Litigation- The Supreme Court said that this case was a glaring
example of misuse of PIL. This has spawned an INDUSTRY OF VESTED INTERESTS in
litigation
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MASTER OF ROSTER and CHAOS FOR REMOVAL OF HON‘BLE CJI DIPAK MISHRA

SUPREME COURT OF INDIA -HANDBOOK ON PRACTICE AND PROCEDURE (Framed
under Article 145 of the Constitution of India)
CHAPTER VI (ROSTER) –According to Chapter VI of Handbook On Practice and
Procedure-(1) The roster shall be prepared by the Registrar (J-I) under the orders of the Chief
Justice. It may contain general or special instructions regarding assignment/allocation of work to
a Bench and includes allocation of work of a Bench, on account of non-availability, to another
Bench.
(2) In order to meet contingencies, the Chief Justice may, from time to time, direct the Registrar
(J-I) to prepare roster instructions or amendments for re-allocation of judicial work.
(3) The roster instructions and amendments shall be prepared in such a manner so as to ensure
that no judicial time is wasted.
(4) Where a Bench directs listing of a case before another Bench, particular Bench, appropriate
Bench or larger Bench, as the case may be, the Registrar (J-I) shall place the matter before the
Chief Justice for orders.
CHAPTER XIII (LISTING OF CASES) - According to CHAPTER XIII of Handbook On
Practice and Procedure, the Registrar (J-I) shall list the cases before the Benches in accordance
with the roster under the directions of the Chief Justice.
DOJ NAME OF IMPORTANT POINTS
CASES
25Nov. STATE OF (i) The administrative control of the High Court vests in
1997 RAJASTHAN V. the Chief Justice alone. On the judicial side, however, he
PRAKASH is only the first amongst the equals.
CHAND & ORS. (ii) The Chief Justice is the master of the roster. He
alone has the prerogative to constitute benches of the
court and allocate cases to the benches so constituted.
(iii) The puisne Judges can only do that work as is
allotted to them by the Chief Justice or under his
directions.
8 Nov. First PIL was Prasad Medical College Corruption Case- Demand for
2017 filed. SIT
9 Nov. Order of Division Bench to constitute ―Constitutional
2017 Justice Bench‖ to hear a case of alleged bribery of judges in
J. Chelameswar which a retired judge of Orissa High Court, Justice Ishrat
and Masroor Quddusi is an accused. Justice
Justice Abdul J. Chelameswar , “The FIR contained certain allegations
Nazeer which are disturbing . The allegations pertain to the
290
328
function of this court.”He passed an Order for setting up

of the five-judges bench of top judges of the apex court as
a petition by NGO and an advocate had claimed there
were allegations against Justice Mishra.
UNACCEPTABE Nov.10,2017.(UNJUSTIFIED BEHAVIOUR OF CJI).
BEHAVIOUR OF Hon'ble Justice Dipak Mishra had decided several
CJI on 3.00P.M. landmark cases including hearing of Yakub Memon Case
10/11/2012, in night (Yakub Abdul Razak vs. State of
Maharashtra,4.50 A.M. on April 30, 2015) and Delhi
Gang Rape Case (Mukesh and Anr. vs. State for NCT of
Delhi, 05May,2017). But his behaviour in its own case
was strangely changed. Only giving prior notice of 20
minutes for any lawyer and allowing lawyers to
manhandle with senior lawyer cannot be justified in any
circumstances. Even CJI started to shout at a senior
lawyer are totally unacceptable. I accept that in the FIR,
name of the CJI had not been mentioned directly. Division
bench consisting of Justice J. Chelameswar and Justice
Abdul Nazeer had passed an ‗Order‘ for setting up of the
five-judges bench of top judges of the apex court. Passing
of Order is judicial function. Every lawyer want to get
judgment or order in his favour from the court including
Supreme Court.
CJI had power to constitute benches. Might be power of
CJI had been violated by Division Bench. He constituted
extraordinary Constitutional Bench within 24 hours and
overturned the decision of Division Benches. These are
justified. He has power for this under Handbook on
Practice and Procedure and Office Procedure framed
under Article 145 of the Constitution. Work of master of
roster is administrative work rather than judicious work.
So it should follow just, fair and reasonable procedure.
But not allowing a senior advocate to plead and shouting
to that lawyer cannot be justified even in his own case
when division bench had already found suitable for
hearing by constitutional bench.
CJI by his own behaviour had derogated reputation of
Supreme Court and people had started that CJI is also
involved in corruption cases. Justice should not only be
done, but it also seems to be done. Principle of Natural
Justice (Nemo Judex Causa Sua-no one should be judge
in his own case) must be followed.
10 Nov. CJI Dipak Mishra, Constitutional Bench of Supreme Court. Five Judge
2017 JJ.R.K.Agrawal Bench headed by CJI overturned the order passed by
3.00P.M. Arun Mishra Division Bench on 09 Nov.2017.
329
Amitva Roy and (1) There can‘t be a command or an order directing the
A.M.Khanwilkar CJI to constitute the bench of specific strength.
(2) Needless to emphasis that no judge can take up a
matter on its own unless allocated by the CJI as the CJI IS
Master Of Court.
(3)Any Order passed contrary to his order(by the
Constitution Bench) should not hold the field and shall
be treated to annulled.
10 Nov. Mr. ―If you want to pass orders without hearing me, please
2017 Prashant Bhushan pass whatever order you want‖. Mr. Prashant Bhushan
then stormed out of the courtroom. Security personnel and
his colleagues escorted him through the crowded
courtroom, amid loud protests from some lawyers.
10 Nov. Mrs. ―He [Mr. Bhushan] was not allowed to make his
2017 Kamini Jaiswal submissions while all and sundry in this courtroom were
given a chance,‖ advocate Kamini Jaiswal tells the Bench
10 Nov. All and sundry Lawyers present in the courtroom, some by the Chief
2017 Lawyers Justice‘s invitation and others on their own, took turns to
criticise Mr. Bhushan and urge the Bench to initiate
contempt proceedings.
14Nov. KAMINI (Prasad Institute of Medical Science, Lucknow Case/
2017 JAISWAL VS. Shri I.M. Quddusi, Medical College Corruption Case).
UNION OF It was held that CJI alone had the power to assign the
INDIA & ANR. case to a bench even if there were allegations in the
Justice R.K. matter against him. Stating that the petition itself was
Agrawal, Justice forum shopping and it contents amount to contempt of
Arun Mishra, Court. But the court said that it was not initiating
Justice A.M. contempt proceeding against petitioner Jaiswal or her
Khanwilkar counsel Prashant Bhushan. Supremacy of CJI was
established.
Press Conference Assignment of Judge Loya case to J. Arun Mishra's bench
12 JAN. by Four Senior immediate reason for 'extraordinary' press conference.
2018 Most Judges Of Justices (1) Jasti Chelameswar, (2) Ranjan Gogoi, (3)
SC- Madan B. Lokur and (4)Kurian Joseph — holding a
press conference to complain about the selective
allocation of nationally important cases to certain
Benches. The judges had said that Chief Justice Mishra
did not act despite repeated entreaties from them, thus
forcing them to bring the issue into the public domain.
11April Ashok Pandey Vs. Main Issue- Constitution of Benches and Allocation of
2018, Supreme Court of Cases.Writ Petition was dismissed.
India Through Its One charge against Justice Mishra pertained to the
Registrar &Ors. arbitrary use of his powers as ‗master of the roster‘. A
three-judge Bench headed by the CJI had given a
CJI Dipak Mishra, judgment upholding absolute power of CJI in the
A.M.Khanwilkar constitution of benches.
330
and Dr. (i) Absolute power of CJI in the constitution of benches.

D.Y.Chandrachud (ii) It is CJI‘s right to allot case,
(iii) He is an institution in himself,
19 April, Tehseen The Supreme Court concluded that Justice B.H. Loya died
2018 Poonawala Vs. of natural causes and there is ―absolutely no merit‖ in the
Union Of India PIL petitions alleging foul play in his death.
(Justice Loya's
Death Case)
20 April, Notice of Motion Leader of the Opposition in the Rajya Sabha Ghulam
2018 for removal of CJI Nabi Azad, accompanied by a few colleagues, submitted
i.e. Justice Dipak the petition with 71 signatures to Rajya Sabha Chairman
Mishra by 64 M. Venkaiah Naidu. Mr Azad, however, mentioned that
sitting members of seven of the signatories had retired as Rajya Sabha
Rajya Sabha to members. In this way motion was signed by 64 sitting
Chairperson Mr. members.
Venkaiah Naidu.
23 April, Vice Chairperson Vice Chairperson rejected notice of motion for removal of
2018 rejected notice ofCJI in the light of M.Krishna Swami vs. Union of India
motion for1992 and In Re Mehar Singh Saini,2010 and according
removal of CJI to section 3(1)(b) of Judges (Inquiry)Act,1968 after
taking consultation from several legal luminaries.
Members of Rajya Sabha violated Paragraph 2.2 of
Handbook For Members Of Rajya Sabha, 01/01/2010.
Types of work of Judicial Work and Adminstrative works. Allotment of
CJI cases come under the categories of administrative works.
Administrative work should not be arbitrary.
331
PROCEDURE FOR REMOVAL OF JUDGES OF SUPREME COURT

Articles 121, 124(4) & (5) and Judges (Inquiry) Act, 1968
S.No. JUDGES OF SUPREME COURT
GROUNDS
(1) Proved misbehavior or (2) Proved Incapacity (Sub-committee on Judicial Account
vs.UOI,DOJ-Oct29,1991)
STAGE-1 PROPOSAL FOR REMOVAL EITHER TO SPEAKER OF CHAIRPERSON
Judges (Inquiry) Act, 1968, Section 3-(a) in the case of a notice given in the House
of the People, by not less than one hundred members of that House; (b) in the case of
a notice given in the Council of States, by not less than fifty members of that
Council;(100 Members of Lok Sabha, or 50 Members of Rajya Sabha).
STAGE-2 ACCEPTANCE OF NOTICE BY SPEAKER OR CHAIRPERSON
In the case of removal of CJI, Dipak Mishra, notice of motion signed by 64 Members
of Rajya Sabha was rejected by Chairperson in the light of decision of M.Krishna
Swami vs. Union of India 1992 and In Re Mehar Singh Saini,2010.
STAGE-3 INVESTIGATION BY COMMITTEE
Judges (Inquiry) Committee shall be constituted of three members under Section 3 of
Judges (Inquiry) Act, 1968.
Speaker or, as the case may be, the Chairman shall constitute a Committee
consisting of three members of whom (a) one shall be chosen from among the Chief
Justice and other Judges of the Supreme Court ; (b) one shall be chosen from among
the Chief Justices of the High Courts; and (c) one shall be a person who is, in the
opinion of the Speaker or, as the case may be, the Chairman, a distinguished jurist.
STAGE-4 SUBMISSION OF REPORT BY COMMITTEE to Chairperson/Speaker
At the conclusion of the investigation, the Committee shall submit its report to the
Speaker or, as the case may be, to the Chairman.
STAGE-5 PASSING OF RESOLUTION
The resolution must be passed supported by a majority of the total membership of
that House and by a majority of not less than two- thirds of the members of that
House present and voting. Here, minimum number is fixed, i.e. in case of Lok
Sabha, 273 Members and in case of Rajya Sabha, 123 members. Suppose that, in
Lok Sabha only 273 members and Rajya Sabha only 123 members are present and
passed a resolution for removing the Judge of the Supreme Court after complying
other conditions, they can do it. In another example, suppose that 500 members in Lok
Sabha are present, then the resolution must be passed by at least 333 members of the
House. Suppose that 545 members in Lok Sabha are present, then the resolution must
be passed by at least 363 members.
STAGE-6 IN THE SAME SESSION
Motion for removing the Judges must be passed in the same Session and presented to
the President. In the case of V.Ramaswami, Supreme Court held, “Motion for
removal of a judge under Article 124 does not lapse with the dissolution of the
House‖. Sub-Committee of Judicial Accountability vs. Union of India, Date of
332
Judgment-29 Oct.1991.
STAGE-7 REMOVAL OF JUDGE BY PRESIDENT
Judge shall be removed by President.Article 124 (2).
CHAOS FOR REMOVAL OF JUSTICE V.RAMASWAMI & SUPPORT OF CORRUPTION
BY CONGRESS PARTY FOR POLITICAL MILEAGE
S.NO. IMPORTANT REMARKS

EVENTS
1 Date of Birth 15Feb 1929,Madras
2 Permanent Judge of 31Jan.1971-1987
Madras High Court
3 Chief Justice of Punjab 12Nov.1987-06Oct.1989
and Haryana High
Court
4 Judge of Supreme 06 Oct.1989- 14 Feb.1994
Court of India
5 Lok Sabha He contested as a M.P. Candidate of AIADMK from
Election,1999 Shivkashi, Tamil Nadu but he lost his election.
PROCEEDING FOR
REMOVAL OF
JUSTICE
V. RAMASWAMI
STAGE 1 Corruption Charge for (1)That during his tenure as Chief Justice, Punjab and
illegal purchasing and Haryana between November 1987 and October 1989,
misuse of public fund Justice Ramaswami personally got purchased carpets and
furniture for his residence and for the High Court costing
about Rs 50 Lakhs from public –funds from handpicked
dealers at inflated rates. This was done without inviting
public tenders and by privately obtaining a few
quotations, most of which were forged or bogus.
(2)That he misused his staff cars provided to him by
taking them from Chandigarh to hill stations for
vacations and to Madras for his son‟s wedding and spent
more than Rs 1 lakh of public money for paying for the
petrol of these cars. He even got himself paid for false
petrol bills relating to car repairs, etc.
(3) That he sanctioned a official the pleasure trip or trips
made for his own personal work by his subordinate staff
to places like Madras, Mussorie, Manali, etc, even though
there was no official work to be done in those places.
Ninth Lok Sabha 2 Dec.1989-13 March 1991
291
333
(Duration of Ninth Lok Sabha

July 20, CJI Sabyasachi Members of this Committee were Justices B. C. Ray,
1990, Mukherjee desist Jagannath Shetty and M. N. Venkatachalaiah of the
Justice V.Ramaswami Supreme Court.
from discharging Justice V.Ramaswami went on leave and remained on
judicial function and leave for the next five months
constituted the
Committee of Judges to
inquire these matters.
February I, Resolution for Unprecedented resolution by the Supreme Court Bar
1991 removal passed by Association on February I, 1991, calling for the
Supreme Court Bar impeachment of Ramaswami and calling upon the Chief
Association Justice not to assign him any judicial work.
STAGE 2 108 Members of Ninth 108 Members of Ninth Lok Sabha presented notice of
February Lok Sabha motion to Speaker of Lok Sabha, Rabi Ray, for removal
29, 1991 Supreme Court Justice V. Ramawsami.
Politics and Prime Minister The government of Chandrashekhar with outside support
Removal of Chandrashekhar from the Congress, mounted enormous pressure on Ray
Ramaswami supported by Congress not to admit it. Rajiv Gandhi sent two Congress aides
Party. from Andhra Pradesh, P.V. Narasimha Rao and B.
Excellent role of Shankaranand, to persuade the speaker to reject the
Speaker Mr. Rabi Ray notice. According to media reports at the time, the duo
apparently argued for Ramaswami, stating that he refused
bail to several terrorists involved in the Khalistan
movement and by doing so served the cause of unity and
integrity of India.
November Committee submitted This committee submitted its report on November 8,
8, 1991, its report. 1991, to Chief Justice Ranganath Mishra, who succeeded
J. Sabyasachi Mukherjee on his demise.
STAGE 3. Admission of Motion 12 March 1991. Speaker of Lok Sabha admitted the
by Speaker of Lok motion on12 March 1991which was one day before the
12 March Sabha dissolution of ninth Lok Sabha. Committee consisting of
1991. Mr. Justice P.B. Sawant, a sitting Judge of this Court, Mr.
Justice P.D. Desai, Chief Justice of the High Court of
Bombay, and Mr. Justice O. Chinappa Reddy, a
distinguished jurist in terms of Section 3(2) of The Judges
(Inquiry) Act, 1969 was constituted.
13 March Dissolution of Ninth 13 March 1991.
1991 Lok Sabha Assembly
March 1991 Advise of Law Minister, The committee, however, could not begin its work since
Subramanian Swamy, the then Law Minister, Subramanian Swamy, and the then
and Attorney-General, Attorney-General, G. Ramaswamy, advised the
G. Ramaswamy, Government that the impeachment motion had lapsed on
dis solution of the House and the Government refused to
issue the necessary notification. This provoked a body of
advocates of the Supreme Court, called the Committee on
334
Judicial Accountability, to file a petition in the Supreme

Court to direct the Government to issue the notification.
DOJ- Sub-Committee of PILs were filled by Advocates. The Supreme Court
29 Oct. judicial Accountability decided that the motion had not lapsed doe to dissolution
1991. vs. Union of India. of Lok Sabha and that the inquiry committee was properly
Authority of Constitutional Bench constituted. It was only thereafter that the inquiry
Judges ―The constitutional committee could begin its work and by January 14, 1992,
Inquiry scheme for removal of a after examining all the audit reports and other documents,
Committee judge, seeks to achieve it formulated a charge sheet containing 14 charges and
was a judicial, blend of the communicated them to the judge for his response.
challenged. political and judicial
process‖.
14 Jan. Committed started to Committed started to work after decision of Sub-
1992 work Committee of judicial Accountability vs. Union of India.
27 August, Krishna Swami vs. Congress MP from Tamil Nadu, M. Krishnaswamy filed a
1992 UOI petition in the Supreme Court challenging the jurisdiction
(Afternoon) of the in quiry committee and the procedure adopted by it.
The Supreme Court dismissed the petition on the ground
Lawyer that the petitioner had no locus standi. If Justice
Kapil Sibal, Ramaswami wanted a copy of the report, he would have
to appeal to the Court himself.
27 August, Mrs. Sarojini Petition file d by Ramaswami's wife in the Supreme Court
1992 Ramaswami v. Union seeking that the judge be supplied with a copy of the
(Forenoon) of India report before it was submitted to the Speaker.
(Mrs. Sarojini Supreme Court declined the request of Ramaswami's wife
Ramaswami wife of but held that Ramaswami would have an opportunity to
Justice of challenge the report before Parliament and would have a
V.Ramaswami) further opportunity of judicial review even after
Parliament had voted for his removal and he had been
removed.
The inquiry Committee is not the tribunal. So appeal
cannot be preferred under Article 136 of the Constitution
of India.
STAGE 4 Submission of Report The Committee submitted its report and found guilty
20July, by Inquiry Committee. V.Ramaswami.
1992
STAGE 5 The report was tabled Five months after the report was submitted to the speaker,
17DEC. in Lok Sabha it was tabled in the Lok Sabha on 17December 1992.
1992
10May, Impeachment motion May 10, 1993, the impeachment motion was put before
1993 was started. the house for a debate by Speaker Somnath Chatterjee
10May, Six-hour speech in Lok Kapil Sibal, was by an unprecedented procedure allowed
1993 Sabha of Kapil Sibal, to address the House. Sibal made a six-hour presentation
as a lawyer for Justice speech in Lok Sabha as a lawyer for defending Justice
V. Ramaswami V.Ramaswami. Sibal's lengthy presentation was heard by
335
a packed House and it impressed many.

11May Janata Dal leader Janata Dal leader George Fernandes tore down the
1993 George Fernandes defence of Sibal with his excellent arguments.
Morning
11May After speech of George Speaker Somnath Chatterjee excellent speech by
1993 Fernandes. Congress became embarrassed.
Morning
11May Role of P.M. Narasimha Rao finally decided, towards the end of the
1993 Mr. Narasimha Rao debate, to direct the party MPs to abstain from voting.
(Due to pressure of Just as the voting time approached: party managers
Tamilian M.Ps. and for hurriedly carried the Prime Minister's oral whip to the
political mileage) MPs.292
STAGE 6 The 196 Opposition Ramaswami is a Congress (I) appointed judge and his
11May MPs in the Lok Sabha removal could have undermined the party's credibility.
1993 who voted in favour of Especially as Rajiv Gandhi had sent him as chief justice
motion to Chandigarh to tackle terrorist cases. Besides, his son is
Total Members -401. a Congress (I) MLA in Tamil Nadu. And the lawyer who
In Favour of motion- argued his case in the Lok Sabha, Kapil Sibal, is also a
196 Congress (I) member.
Against motion-205 401 Members of Lok Sabha were present. Among them
196 voted in favour of Motion while 205 members of Lok
Sabha stayed away. Ruling Congress (I) had decided not
to support motion.
24Aug. Lily Thomas(Ms.) Writ petition was filed under Article 32 of the
1993 Advocate vs. Speaker, Constitution seeking declaration that the Motion of
Lok Sabha Impeachment against Mr. Justice v. Ramaswami, should
“The motion shall be be deemed to have been carried by construing the
carried only if the expression, support of the majority in Article 124(4) in
requisite numbers such a manner that any member who abstained from
expressed their opinion voting should be deemed to have supported the Motion.
by casting vote in Supreme Court held that Article 124 does not exclude
support of the motion.” neutrality or abstaining from voting. Use of the
expression, ‗not less than two-thirds of the members
present and voting‘ in the Article implies that the motion
shall be carried only if the requisite numbers expressed
their opinion by casting vote in support of the motion.
One may be present and yet not voting. Petition was
dismissed.
14 Judge of Supreme First Judge against whom removal proceedings were
Feb.1994. Court of India. started. He retired on 14 Feb.1994.
292
Mr. Bhushan Prashant, A historic non-impeachment -An all-round system failure, Frontline,
1993 - bharatiyas.in
336
FOUR LEADING CASES RELATED TO REMOVAL OF JUSTICE V. RAMASWAMI
S.N. DOJ NAME OF CASES IMPORTANT POINTS
1 DOJ- Sub-Committee of Motion for removal of a judge under

29 Oct. Judicial Article 124 does not lapse with the
1991. Accountability vs. dissolution of the House.293
Union of India
2 27 August, Mrs. Sarojini Mrs. Sarojini Ramaswami wife of

1992 Ramaswami v. Justice of V.Ramaswami)
(Forenoon) Union of India
3 27 August, Krishna Swami vs. Congress MP in 10th Lok Sabha from

1992 UOI Tamil Nadu
(Afternoon)
4 24Aug. Lily Thomas(Ms.) After failure of removal proceedings

1993 Advocate vs.
Speaker, Lok Sabha
293
Prof. M.P.Jain , ‗Indian Constitutional Law‘, P.N.200,( Wadhwa and Company Nagpur,
New Delhi, Fifth Edition,2006).
337
VIVEKANAND TIWARI AND ANR. VS. UNION OF INDIA AND 5 Ors.

DOJ, 07APRIL, 2017, ALL. H.C.
Facts- Dispute was regarding advertisement for the post of teaching and non-teaching staffs
by Banaras Hindu University.
Important Point propounded by All.H.C.
(1)The High Court quashed Clause 6(c) and 8(a) (v) of the UGC Guidelines 2006 and the letter
of the UGC dated 19.2.2008, to the Universities.
(2) The High Court has held that reservation is to be applied department-wise or subject-wise
treating it as a ―Unit‖ and not the University as a ―Unit‖.
(3)The High Court reasoned that if the University is taken as a Unit for every level of teaching
and applying the roster it could result into some departments/subjects having all reserved
candidates, and some having only unreserved candidates.
EFFECT-
(1)Reservation based on department or subject as a unit will lead to a situation in which many
departments with single post cadres (usually the position of a professor) will be outside the
purview of reservation.
(2) Even in departments having two or more faculty posts, but less than, say, 15 in a cadre, only
one post will be reserved for an SC candidate at serial number 7 and for an ST candidate at serial
number 14. So if a department has only six associate professor-level posts, then nothing will be
reserved for SC/ST candidates. Reservation will only be implemented through rotation and that
could take years.
NEWSPAPERS- Number of Central Universities 43, (41 Universities Response) 2015-2016Yrs.

As per official data, there are 17,106 teaching positions at 41 UGC-funded central universities,
of which 5,997 were vacant as of April 1, 2017. This roughly works out to 35 per cent vacant
teaching positions. UGC‘s new order announcing change in the implementation of faculty
reservation will significantly reduce representation of SC, ST and OBC in all new recruitment
drives taken up by the universities in future.295
294
ASSISTANT PROFESSOR, FACULTY OF LAW, UNIVERSITI OF DELHI, DELHI
295
Indian Express, 02March 2018
338
The total number of teachers have been estimated to be

15,18,813 in Universities . Source-All India Survey on
Higher Education 2015-2016.
70% 65%
60%
50%
40%
30% 25.40%
20%
7.50%
10% 3.40% 3.30%
2.10%
0%
GC OBC SC ST Muslim Other Minorites
GC OBC SC ST Muslim Other Minorites
SUPREME COURT
DR.LAL CHAND PRASAD & ANR. VS. UNION OF INDIA & ORS , 21/07/2017
Disposal of SLP (Civil) 16515/ 2017 and Diary Number 17598/2017 Filed on 12-06-2017 .
Hon‟ble Justices Adarsh Kumar Goel and U.U.Lalit. In this Case court clearly said that there
was no ground to interfere in the decision of Allahabad High Court dated 07April, 2017. This is
an order.
05 March 2018- UGC issued guidelines for all universities to implement the decision of
Vivekanand Tiwari and Anr. Vs. Union Of India And 5 Ors. DOJ, 07April, 2017, ALL.H.C.
DR. LAL CHAND PRASAD & ANR. VS. UNION OF INDIA & ORS , March 20, 2018.
Disposal of Review Petition Civil- 652/2018, Diary Number30478/ 2017 filed on 21/09/2017
Hon‟ble Justices Adarsh Kumar Goel and U.U.Lalit. Supreme Court said that there was no
reason to interfere the matter. Review Petition was dismissed.
20April 2018- UGC informed issued a notice in which it was clearly written that Union of India
and UGC had decided to file separate petitions in the Supreme Court seeking the special leave to
appeal final order and judgment of All.H.C. dated 07/04/2017.
339
CONCLUSION- Vivekanand Tiwari &Anr. vs.UOI & Anr (All.H.C. 07April,2017) and Dr. Lal
Chand Prasad vs. UOI (S.C.21July 2017). Reservation for Teaching and Non-Teaching Staffs in
Universities.
Allahabad High Court has held that reservation is to be applied department-wise or subject-wise
treating it as a ―Unit‖ and not the University as a ―Unit‖. Supreme Court upheld the Judgment of
Allahabad High Court. Effect of these judgment have been shown through newspapers cutting.
Two important change -(1) Department would be unit rather than university. For one post,
there is no reservation.(2) 200 Roster system was substituted by thirteen (13) point roster
system.
340
.
341
342
MURDER OF DEMOCRACY: UTTARAKHAND AND ARUNACHAL PRADESH, 2016

AND ELEVATION OF HON‘BLE CHIEF JUSTICE K.M.JOSEPH
Krishna Murari Yadav, Assistant Professor, Faculty f Law, University of Delhi, Delhi.
SUMMARY-
Mr. Modi‟s Government disrobed democracy in case of Uttarakhand and Arunachal Pradesh in
2016. Great salute to Hon‟ble Justice K.M. Joseph who without any fear and greed protected
democracy in Uttarakhand by decision of Shri Harish Chandra Singh Rawat vs. Union of India
and Anr.(DOJ-21 April 2016) which was finally settled by order of Supreme Court in the case
of Union of India vs. Shri Harish Chandra Singh Rawat (11May,2016). In Case of Arunachal
Pradesh, Supreme Court saved the democracy through decision of Nabam Rebia and Bamang
Felix vs. Deputy Speaker and Others (13July, 2016). First time in democracy, President‟s Rule
was imposed on Republic Day. First time Supreme Court revived dissolved Assembly practically.
In Uttarakhand, Congress was ruling Party and Chief Minister was Mr. Harish Rawat. On 18
March, during the passing of Appropriation Bill, BJP and dissent Congress MLA claimed that
the Bill had not been passed. Governor, Dr. K.K. Paul, ordered a floor test on 28 March, 2016
and in reply Mr. Rawat‘s Government was ready for floor test on 28 March, 11A.M. A day
before floor test i.e. on 27 March 2016, proclamation was issued under Article 356 and Harish
Rawat‘s Government was suspended. Chief Minister Mr. Harish Rawat filed a petition and
challenged proclamation issued under Article 356 of Constitution of India.
On April 21, 2016 Division Bench comprising of Hon‘ble Chief Justice K.M.Joseph (currently
elevation of Chief Justice K. M .Joseph to Supreme Court is controversial) and Hon‘ble Justice
V. K. Bisht at the time of deciding of Shri Harish Chandra Singh Rawat vs. Union of India
and Anr. (Writ Petition No.795 (M/S)/2016), observed that there was not sufficient material for
imposition of President‘s Rule in Uttarakhand. On the basis of S. R. Bommai and Ors. Vs. UOI
(1994) and Rameshwar Prasad vs. Union of India (2006) the Proclamation dated 27.03.2016
issued under Art.356 was quashed and status quo ante was applied. In this way Rawat‘s
Government was revived. It was given deadline to seek the vote of confidence on April 29, 2016.
On April 22, 2016, Center filed a ‗Special Leave Petition‘ (Union of India vs. Shri Harish
Chandra Singh Rawat and Anr.) in Supreme Court against judgment of Division Bench of
Uttarakhand High Court. Supreme Court stay the decision of Uttarakhand High Court. On
06May Supreme Court passed an order for floor test on 10May and ordered that result of floor
test would be submitted in Supreme Court as for as soon. Court said that 09 dissent MLA of
Congress Party was not eligible for voting. Court fixed date for next hearing on 11May. On
10May floor test was conducted. On 11 May, Rawat Government was restored and President‘s
rule was withdrawn.
Nabam Rebia, and Bamang Felix vs. Deputy Speaker and others. DOJ -13July, 2016
President rule was imposed in Arunachal Pradesh on 26January, 2016.This is the first case when
Supreme revived dissolved Assembly of Arunachal Pradesh. In S.R. Bommai and Rameshwar
Pradesh case S.C. declared that the Court had power but due to change of circumstances did not
revived. Here proclamation under Article 356 was declared unconstitutional.
These episodes were heavy blow on the face of Mr. Modi‘s Government. These two cases clearly
show hungriness of power of Mr. Modi‘s Government. Case of Arunachal Pradesh is first case
343
in which President‘s Rule was imposed on ‗Republic Day‘ and in which dissolved Assembly
was revived practically. The status quo ante as it prevailed on 15.12.2015, was ordered to be
restored. Nabam Tuki reassumed post of Chief Minister.
BRIEF INTRODUCTION OF HON‘BLE JUSTICE KUTTIYIL MATHEW JOSEPH (K.M.
JOSEPH)
Hon‘ble Justice Kuttiyil Mathew Joseph (K.M. Joseph) was born on June 17,1958. He hails
from Kerala. . He enrolled as Advocate on 12/01/1982 in Delhi and started practice in Civil and
Writ matters. He started practised at the High Court of Kerala from 1983. He was appointed as
Permanent Judge of the High Court of Kerala on Oct.14, 2004. He was transferred from Kerala
High Court to Uttarakhand High Court where he assumed office of Chief Justice of Uttarakhand
at Nainital High Court on July 31, 2014. He decided Shri Harish Chandra Singh Rawat vs.
Union of India and Anr on 21April,2016 and quashed President‘s Rule in Uttarakhand. He is
still working here. His name had been recommended by collegium with Advocate Mrs. Indu
Malhotra. His name was returned by Law Ministry for reconsideration while Mrs. Indu Malhotra
was accepted. Even his name again recommended by collegium and he is elevated to Supreme
Court, he will be junior of Mrs. Indu Malhotra and there would be lesser chance of to be CJI in
future.
According to judgment of In Re Presidential Reference Case (1998), collegium must be

formed with CJI and four senior-most puisne judges of Supreme Court in case of elevation of
Judges to Supreme Court.
In the case of Supreme Court Advocates on Records Association vs. UOI (1993), it was held
that recommendation of collegium is binding except where there is strong cogent reasons which
would be disclose to CJI. However if the stated reasons are not accepted by the Chief Justice of
India and the other Judges of the Supreme Court who have been consulted in the matter, on
reiteration of the recommendation by the Chief Justice of India, the appointment should be
made as a healthy convention.
LEADING CASES DECIDED IN 2017-2018
344
S.N. DOJ NAME OF REMARKS

JUDGMENT
2017 2017 2017
1 2 Jan., Krishna Kumar Singh Bench of Seven Judges. Placing ―Ordinance‖ before legislature is
2017 & Anr vs. State Of mandatory. Re-promulgation of ―Ordinance‖ is fraud and a
Bihar & Ors subversion of democratic legislative process. Articles 123 and
213.
2 2 Jan., Abhiram Singh vs. Section 123(3) of the Representation of Peoples Act. Seeking
2017 C.D.Commachen votes on the basis of caste, religion or community amounted to
(Dead) by LRS and corrupt practices under section 123 and election of candidate
Ors. who indulged in it can be set aside.
3 09 Association of Victims Ansal was Sentenced.
Feb.2017 of Uphaar Tragedy vs.
Sushil Ansal and
Anotheer
4 09March Hussain and Anr. vs. Supreme Court directed disposal of Bail pleas within one week.
,2017 UOI Speedy trial is a part of Article 21.
5 31-03- State of Tamilnadu vs. There is no fundamental right to carry on business in liquor since
2017. K Balu , as a matter of constitutional doctrine, Article 19(1) (g) does not
(Prohibition of sale of extend to trade in liquor which is consistently regarded as res
liquir near roadside) extra commercium( a things beyond commerce) . In this case
Supreme Court passed an order that no license should be granted
to sale liquors on national or state highway.SC said that it must be
ensure that liquors must not be visible or accessible directly
within 500 metre from the outer edge of highway or service lane
of highway.
To defeat this Order, several State converted State Highway to
District Road .
6 06April, Deepa vs. Union of . Hon'ble JJ, R.Banumat and A M.Khanwilkar Regarding this
2017. India (Reservation for Judgement, There is a lot of rumour. Rumour is that OBC, SC
OBC, SC and ST) and ST candidate can't qualify in general category. This rumour is
not true.OBC SC ST can qualify in general category provided that
he/ she has not taken special benefit of reserved category for
example- age relaxation or more attempt etc.
7 19 April State(Through) CBI FIR lodged on 06Dec.1992 for hatching conspiracy for
2017 Vs. Sri Kalyn Singh demolition of Babri Mosque in Ayodhya. Supreme Court
(Former CM of UP) restored criminal conspiracy charges against senior BJP leaders
&Ors. L.K.Adwani, Uma Bharati, Murali Manohar Joshi and 13 Others.
8 28 April, Pawan kumar vs. State Appeal was dismissed.SC said, ―She has an individual choice
2017. of H.P. which has been legally recognised . It has to be socially
respected. No one can compel a women to love. She has absolute
296
Assistant Professor, Faculty of Law, university of Delhi, Delhi.
345
right to reject.‖
9 05May Mukesh and Anr.vs. Delhi Gang Rape Case. Death sentence was upheld.
2017 State for NCT of Delhi
10 09May, Suo-Motu Contempt The sentence of six months imposed by this Court on Sri Justice
Seven Petition (Civil) No. 1 C.S. Karnan, shall be executed forthwith, by the Director General
Judges Of 2017 In The Matter of Police, West Bengal, or through a team constituted by him.
2017 Of: In Re, Hon‘ble Justice Karnan Case / Contempt of Court. This case was
Shri Justice C.S. decided by seven judges.
Karnan
11 09June Binoy Viswam vs. UOI SC upheld constitutional validity of section 139AA of Income
2017 Tax Act which made mandatory linkage of IT returns with
AADHAAR subject to the outcome of main case related to
AADHAAR.
12 26July, Bimolangshu Assam Parliamentary Secretaries (Appointment, Salaries,
2017 Roy(Dead) Through Allowances and Miscellaneous Provisions) Act, 2004. Supreme
LRs vs. State of Assam Court declared this Act as unconstitutional. The Court held that
vs. Another Article 194 of the Constitution of India does not expressly
authorize the State Legislature to create the office of
Parliamentary secretary.
13 27 July, Rajesh Sharma &Ors Supreme Court laid down exhaustive guidelines regarding section
2017 vs. State of UP and 498A of IPC, 1860.
Anr.
14 16 Aug. Rakesh kumar Paul vs. Right to get ‗default bail‘ under section 167(2) of Cr.P.C..
2017 State of Assam
15 22Aug Shayara Bano vs.UOI Practice of Triple Talaq is unconstitutional. Constitutional
2017 ( Triple Talaq Case) Bench-Article 145(3) and (5)- 5 Judges, Decision 3:2 Majority
Judges(1) Justice Joseph Kurian (2) J. U.U.Lalit,(3)Justice
.R.F.Nariman Minority-(1) CJI Khehar (2) Justice Abdul Nazeer.
It is violation of Article 14. In consequences of this decision,
Muslim Women (Protection of Rights on Divorce) Bill, 2017
was passed in Lok Sabha.
16 24Aug, Justice Right to privacy is fundamental rights. In a unanimous
Aug. K.S.Puttaswami decision, a nine-judge Constitution Bench overruled the
(Retd.) and Anr. Vs. Judgment in MP Sharma and Kharak Sing Case.
UOI and Ors. (Right
to privacy is
fundamental rights)
17 11Oct. Independent Thought Section 375 Exception 2 is arbitrary to Articles 14, 15 & 21 of
2017 Vs. Union Of India & the Constitution of India. Now in all cases, sexual intercourse
Anr. (Rape with wife) with a women including wife, if she is below the age of 18 years,
is rape.
18 12Oct, Ms. Indira Jaising vs. Guidelines/norms for designation of ‗Senior Advocate‘ by the
2017 Supreme Court of Supreme Court and all High Courts of this country were laid
India through down.
Secretary general
&Ors
346
19 2017 101st Constitutional Goods and Services Tax

Amendment
20 14/11/20 Kamini Jaiswal Vs. It was held that CJI alone had the power to assign the case to a
17 Union Of India & Anr. bench even if there were allegations in the matter against him.
(Master of Roster) (Prasad Institute of Medical Science, Lucknow Case).
30Nov. Dr.S.Rajaseekaran(II) Guidelines for safety of road accident (1) Road safety policy,
21 2017 vs.Union of India & (2)State Road Safety Council (3)Load Agency(4)Road Safety
Ors. Fund(5)Road Safety Action Plan(6)District Road Safety
Committee(7)Engineering Improvement(8)Traffic Calming
Measures(9)Road Sefty Audit etc. 25 guidelines were laid down.
22 01Dec. Campaign for Judicial Writ petition is dismissed with cost of Rs.25(Twenty five)lakhs
2017 Accountability and to be deposited by petitioner before the Registry of this Court
Reforms(CJAR) vs. within six weeks whereafter said amount shall be transferred to
UOI and Others the Supreme Court Bar Association Advocate‘ Welfare fund
2018 2018 2018
1 11/01/ Ashok Pandey Vs. From an institutional perspective the Chief Justice is placed at
2018, Supreme Court Of the helm of the Supreme Court. In the allocation of cases and
India Through Its the constitution of benches the Chief Justice has an exclusive
Registrar &Ors. prerogative. As a repository of constitutional trust, the CHIEF
(Constitution of JUSTICE IS AN INSTITUTION IN HIMSELF.
Benches and Allocation
of Cases)
2 08March Shafin Jahan vs. Right to choose is a fundamental rights. SC has restored the
2018 Asokan K.M. (Hadia marriage of Hadiya with Shafin Jahan on08 March 2018 10
Case) Akhila months after the Kerala high court annulled it.
converted into Hadiya. S.C., said ―Hadiya alias Akhila Asokan is at liberty to pursue her
future endeavours according to law. We clarify that the
investigations by the NIA in respect of any matter of criminality
may continue in accordance with law‖.
3 09 Common Cause (A (1) Right to die with dignity is a fundamental right under Article
March Regd. Society) Vs. 21,
2018 Union of India and (2) Passive euthanasia is legally valid and
Another. (3) Living will is legally valid.
Meaning of Living Will- Living will is a written document that
allows a patient to give explicit (express) instructions in advance
about the medical treatment to be administered when he or she is
terminally ill or no longer able to express informed consent.
4 20 Dr. Subhash This is a Judgment on Scheduled Caste And Scheduled Tribe
March Kashinath Mahajan (Prevention of Atrocities) Act, 1989 in which anticipatory bail
2018 vs. State of was denied and preliminary inquiry was laid down as a pre-
Maharashtra and Anr. condition for lodging of FIR.
5 19 April, Tehseen Poonawalla All writ petitions were dismissed. Misuse of Public Interest
2018, and Ors Vs Union Of Litigation. PIL has become INDUSTRY OF VESTED
India and Anrs. INTERESTS.
(Justice Loya‘s Death
Case)
347
All.H.C. Vivekanand Tiwari Reservation for Teaching and Non-Teaching Staffs in

07April, &Anr. vs.UOI & Anr Universities.
2017
S.C.21Ju Dr. Lal Chand Prasad Reservation for Teaching and Non-Teaching Staffs in
ly 2017 vs. UOI Universities
CASES DECIDED BY SPECIAL COURT

S.N. DOJ NAME OF JUDGMENT REMARKS

1 26/08/2017 CBI vs.Gurmeet Ram Rape
Rahim Singh
(Ram Rahim Case)
2 23Dec.2017 State(ThroughC.B.I.) vs. Fodder Scam

Shri Lalu Prasad and Anr.
(Lalu Yadav Case
3 2.13P.M. Salman Case Blackbuck Poaching Case, Five Years Jail. He

05April, was sent to Jodhpur Jail.
2017
4 25/04/2018 State of Rajasthan vs. Aasharam was convicted for committing rape of
Asharam and Anr.( minor.
Aasharam Case)
EVICTION OF EX-CHIEF MINISTERS OF UTTAR PRADESH FROM GOVERNMENT

BUNGALOWS
297
Assistant Professor, Faculty of Law, university of Delhi, Delhi.
348
Krishna Murari Yadav*

Abstract
Preamble of Constitution of India explicitly enshrines justice and equality for all. Common
resources must be distributed for common good. State is trustee of public properties.
Government bungalows are public property. Allocation of these bungalows to Ex-Chief Ministers
for whole life on the expenditure of public money is violation of „Doctrine of Equality‟ which
emerges from the concept of justice and fairness. Uttar Pradesh Ministers (Salaries, Allowances
and Miscellaneous Provisions) Act, 1981 was passed by using the power conferred by Article
164 of Constitution of India. U.P. Ex-Chief Ministers Residence Allotment Rules, 1997 was an
administrative or executive instruction issued under Article 162 whereby Ex-Chief Ministers
were allowed bungalows for whole life. This rule was struck-down by Supreme Court on August
01, 2016 in the case of Lok Prahari vs. State of Uttar Pradesh and others on the ground of that it
was in direct conflict of section 4 of Uttar Pradesh Ministers (Salaries, Allowances and
Miscellaneous Provisions) Act, 1981 and executive instruction cannot override plenary statute.
On August 30, 2016 the Act, 1981 was amended and section 4(3) was inserted to protect the
interest of Ex-Chief Ministers. On March, 07, 2018, in the case of in Lok Prahari Through Its
General Secretary Vs. The State Of Uttar Pradesh & Ors. Supreme Court held that section 4(3)
as amended on August 30, 2016 is not in consonance with Article 14. Supreme Court held that
any person after demitting public post becomes commoner. This paper point out brief journey of
allotment Government bungalows for Ex-Chief Ministers and ratio and effect of Lok Prahari
Cases.
Introduction
Uttar Pradesh Ministers (Salaries, Allowances and Miscellaneous Provisions) Act, 1981 was
passed during regime of Mr. V.P. Singh298. It was challenged in Allahabad High Court by Janhit
Sangathan through Writ Petition No. 1313(M/S) of 1996. Allahabad High Court passed an order
in 1997 and Mr. V. P. Singh, Mr. Veer Bahadur Singh, Mr. Hemwati Nandan Bhuguna and Mr.
Sripati Mishra had to vacate Government bungalows. In 1997 Coalition Government (BSP and
BSP) was formed and Miss. Mayawati became Chief Minister and U.P. Ex-Chief Ministers
Residence Allotment Rules, 1997 was passed. On the believe of statements of Additional
Advocate General writ petition was disposed on 20th August, 2001 without deciding the validity
of the Rules, 1997. In 2003 Mr. Mulayam Singh Yadav‘s Government issued ―The
Distinguished Personality Trust Allotment of Houses in Lucknow under the Control of State
Estate Department Rules, 2003‖ under Office Memorandum dated 31.12.2003.Under the
disguise of Rules 1997 and 2003 several properties and bungalows were given to trust and
indirectly to several politicians. Politicians of every party were taking benefits. So there was no
hue and cry. Under Article 32 writ petition was filed in 2004 by Lok Prahari which is a
registered society. In this writ petition validity of Uttar Pradesh Ex-Chief Ministers Residence
Allotment Rules, 1997 was challenged on the ground that it was in direct conflict of the Act,
1981 and Article 14 of the Constitution of India. Lok Prahari vs. State of Uttar Pradesh and
others case was decide on August 01, 2016. Supreme Court held that allotting of bungalows for
*Assistant Professor, Faculty of Law, University of Delhi, Delhi.

298
Mr. V.P.Singh was Chief Minister of Uttar Pradesh during 1980-1982. He also served nation as a
Prime Minister during 1989-1990.
349
whole life is unconstitutional and passed an order that all bungalows cause to be vacated within
two months and due rent must be recovered. On August 30, 2016 during regime of Mr. Akhilesh
Yadav299 Uttar Pradesh Ministers (Salaries, Allowances and Miscellaneous Provisions) Act,
1981 was amended whereby Section 4(3) of the Act, 1981 was inserted. Again it was challenged
in 2016 through writ petition and name of the case is Lok Prahari Through Its General Secretary
Vs. The State Of Uttar Pradesh & Ors. This case was decided on May 07, 2018 and Supreme
Court held that section 4(3) of the Uttar Pradesh Ministers (Salaries, Allowances and
Miscellaneous Provisions) Act, 1981 is ultra vires the Constitution of India as it transgresses the
equality clause under Article 14. After demitting from office, Ex-Chief Ministers are commoner
and they had no separate class.
Related Cases- There are three cases related to this topic. One case has been disposed of by
Allahabad High Court and other two cases have been decided by Supreme Court. These three
cases are following-
(1) Allahabad High Court- Writ Petition No. 1313(M/S) of 1996 filed by Janhit Sangathan.300
(2) Supreme Court- Lok Prahari Vs. The State Of Uttar Pradesh & Ors.301
Full Bench- Justice Anil R. Dave, Justice N.V. Ramana, Justice R. Banumathi
(3) Supreme Court - Lok Prahari Through Its General Secretary vs. State of Uttar Pradesh and
others.302
Division Bench of Supreme Court-Justice Ranjan Gogoi and Justice R. Banumathi
Former two cases have been discussed in brief. Third judgment has been elaborately discussed
by the Supreme Court. So main focus is on third case i.e. Lok Prahari Through Its General
Secretary vs. State of Uttar Pradesh and others.303
Facts of Lok Prahari Through Its General Secretary vs. State of Uttar Pradesh and others,
Date of Judgment-May 07, 2018.
Section 4 of the 1981 Act was amended in the year 2016 to override the judgment of Lok Prahari
Vs. The State Of Uttar Pradesh & Ors.304 On August 01, 2016, Supreme Court held that Rules
cannot override plenary laws. In the original Act, 1981 there were only two clause and ‗Chief
Minister‘ and ‗Ex-Chief Minister words‘ were missing. Section 4(3) was inserted by the
2016 Amendment U.P. (Act No.22 of 2016), on August 30, 2016 and former Chief Ministers of
the State became entitled to allotment of government accommodation for their life time. The
validity of the aforesaid section 4(3), as amended in 2016, has been questioned by the writ
petitioner on the ground of Article 14 which prohibits class legislation and allows reasonable
classification. Article 14 imbibes principle of equality and absence of arbitrariness.
299
His term as a Chief Minister of Uttar Pradesh was 2012-2017.
300
Date of Decision –August 20, 2001.
301
Date of Decision – August 01, 2016.
302
Date of Decision – May 07, 2018.
303
Date of Decision – May 07, 2018.
304
Date of Decision – August 01, 2016.
350
Issue-
―Whether retention of official accommodation by the functionaries mentioned in Section 4(3) of
the 1981 Act after they had demitted office violate the equality clause guaranteed by Article 14
of the Constitution of India.‖
ANSWER –Yes. It is inconsistent with Article 14 of the Constitution of India.
REASONS- There are following reasons-
(1) Preamble of Constitution of India- Supreme Court said, ―The preamble to the Constitution
of India embodies, inter alia, the principles of equality and fraternity and it is on the basis of
these principles of equality and fraternity that the Constitution recognizes only one single class
of citizens with one singular voice (vote) in the democratic process subject to provisions made
for backward classes, women, children, SC/ST, minorities, etc. A special class of citizens,
subject to the exception noted above, is abhorrent to the constitutional ethos.‖
‗People of India‘ and republican form of Government do not recognize any arbitrary sovereign
power and domination of citizens by the State. The republican liberty and the doctrine of equality
is the central feature of the Indian democracy.
(2) Seven Principles- Seven Principles propounded by Lord Nolan must be followed in public
life.305 These seven principles are (1) Selflessness (2) Integrity(3) Objectivity(4)
Accountability(5) Openness(6) Honesty(7) Leadership.
(3) Abolition of Privy Purse – Privy Purse was abolished by 26th Constitutional Amendment to
establish egalitarian society. In the case of Sri Raghunath Rao Ganpatrao vs. Union of India306
Supreme Court said, ―Permanent retention of the privy purse and the privileges of rights would
be incompatible with the sovereign and republican form of Government. Such a retention will
also be incompatible with the egalitarian form of our Constitution…‖
It means our constitution does not create special privileges for any class which is contrary to
social, economic and political justice.
(4) Distribution of resources for all- According to Article 39, State shall direct its policy
towards securing that the ownership and control of the material resources of the community are
so distributed as best to subserve the common good.
(5) Absence of arbitrariness, nepotism and favouritism in allotment of public material
resources- In the case of Akhil Bhartiya Upbhokta Congress vs. State of Madhya Pradesh and
Ors.307 bench of JJ. G.S. Singhvi and Asok Kumar Ganguly observed, ―What needs to be
emphasized is that the State and/or its agencies/instrumentalities cannot give largesse to any
person according to the sweet will and whims of the political entities and/or officers of the State.
Every action/decision of the State and/or its agencies/instrumentalities to give largesse or confer
benefit must be founded on a sound, transparent, discernible and well defined policy, which shall
be made known to the public by publication in the Official Gazette and other recognized modes
305
Seven Principles propounded by Lord Nolan was mention in Vineet Narain and Others vs. Union of
India and Anothers. (1998) 1 SCC 226
306
AIR 1993 SC 1267
307
(2011) 5 SCC 29
351
of publicity and such policy must be implemented/executed by adopting a non- discriminatory

and non-arbitrary method irrespective of the class or category of persons proposed to be
benefitted by the policy. The distribution of largesse like allotment of land, grant of quota, permit
licence etc. by the State and its agencies/instrumentalities should always be done in a fair and
equitable manner and the element of favoritism or nepotism shall not influence the exercise of
discretion, if any, conferred upon the particular functionary or officer of the State.‖
State-owned or public-owned property is not to be dealt with at the absolute discretion of the
executive. Certain precepts and principles have to be observed. Public interest is the paramount
consideration.308
(6) State is Trustee of Public Property and ‗Doctrine of Equality‘ - In the case of Centre for
Public Interest Litigation and Ors. vs. UOI and Ors.309 Supreme Court observed, ―State is the
legal owner of the natural resources as a trustee of the people and although it is empowered to
distribute the same, the process of distribution must be guided by the constitutional principles
including the doctrine of equality and larger public good.‖
In Natural Resources Allocation, in Re, Special Reference No. 1 of 2012,310 while considering
the allocation of 2G Spectrum, this Court observed that as natural resources are public goods, the
‗Doctrine of Equality‘ which emerges from the concepts of justice and fairness must guide the
State in determining the actual mechanism for distribution of natural resources.
(6)Article 14 forbids class legislation rather than reasonable classification –
In the case Budhan Chaudhary and Ors. vs. State of Bihar311 Supreme Court clearly said that
Article 14 forbids class legislation rather than reasonable classification. Supreme Coursed,
―……It is now well established that while Article 14 forbids class legislation, it does not forbid
reasonable classification for the purposes of legislation. In order, however, to pass the test of
permissible classification two conditions must be fulfilled, namely, (i) that the classification must
be founded on an intelligible differentia which distinguishes persons or things that are grouped
together from others left out of the group and, (ii) that differentia must have a rational relation to
the object sought to be achieved by the statute in question. The classification may be founded on
different bases; namely, geographical, or according to objects or occupations or the like. What is
necessary is that there must be a nexus between the basis of classification and the object of the
Act under consideration. It is also well established by the decisions of this Court that Article 14
condemns discrimination not only by a substantive law but also by a law of procedure.‖
In the case of E.P.Royappa vs. State of Tamil Nadu and Another312 Supreme Court held that in
presence of arbitrariness equality cannot exist. In this way Justice Bhagwati expanded the scope
of Article 14. Justice Bhagwati said, ―….From a positivistic point of view, equality is antithetic
to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of
law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act
308
Sachidanand Pandey and Another vs. State of West Bengal and Others. (1987) 2 SCC 295
309
(2012) 3 SCC 1
310
(2012) 10 SCC 1
311
AIR 1955 SC 191
312
(1974) 4 SCC 3
352
is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional
law and is therefore violative of Article 14.‖
(7) Plenary Legislation vs. Subordinate Legislation- Subordinate legislation cannot override
plenary legislation. In the case of Indian Express News Papers (Bombay)(P)Ltd. Vs. UOI
Supreme Court said, ―A piece of subordinate legislation does not carry the same degree of
immunity which is enjoyed by a statute passed by a competent legislature. Subordinate
legislation may be questioned on any of the grounds on which plenary legislation is questioned.
In addition it may also be questioned on the ground that it does not conform to the statute under
which it is made. It may further be questioned on the ground that it is contrary to some other
statute. That is because subordinate legislation must yield to plenary legislation. It may also be
questioned on the ground that it is unreasonable, unreasonable not in the sense of not being
reasonable, but in the sense that it is manifestly arbitrary.‖
(8) Government Accommodation for former President, Vice-Presidents and Prime Ministers
Government Accommodation is provided to former Presidents, Vice-Presidents, Prime Ministers
of the country. Supreme Court had approved the accommodation in case of Shiv Sagar Tiwari vs.
Union of India and Another313.
Decision of This Case-
(1) Natural resources, public lands and the public goods like government bungalows/official
residence are public property that belongs to the people of the country. Government bungalows
constitute public property which by itself is scarce and meant for use of current holders of public
offices.
(2) The ‗Doctrine of Equality‘ which emerges from the concepts of justice, fairness must guide
the State in the distribution/allocation of the same.
(3) The Chief Minister, once he/she demits the office, is at par with the common citizen, though
by virtue of the office held, he/she may be entitled to security and other protocols. But allotment
of government bungalow, to be occupied during his/her lifetime, would not be guided by the
constitutional principle of equality.
(4) There is no reasonable classification. Section 4 (3) of the 1981 Act would have the effect of
creating a separate class of citizens for conferment of benefits by way of distribution of public
property on the basis of the previous public office held by them. Once such persons demit the
public office earlier held by them there is nothing to distinguish them from the common man.
The public office held by them becomes a matter of history and, therefore, cannot form the basis
of a reasonable classification to categorize previous holders of public office as a special category
of persons entitled to the benefit of special privileges. The test of reasonable classification,
therefore, has to fail. It is also arbitrary.
(5) Supreme Court held that Section 4(3) of the 1981 Act cannot pass the test of Article 14 of the
Constitution of India and is, therefore, liable to be struck down. We, therefore, hold that the
aforesaid Section 4(3) of the Uttar Pradesh Ministers (Salaries, Allowances and Miscellaneous
313
(1997) 1 SCC444
353
Provisions) Act, 1981 is ultra vires the Constitution of India as it transgresses the equality clause
under Article 14.
(6) In this case Supreme Court invited for all States. But finally decided to confine only
regarding validity of Section 4(3) of the 1981 Act .
Effect of this judgment –

There are several following effects of this judgment-
(1) Government bungalows would be allotted to acting and needy public officers.
(2) It would save public money and State expenditure.
(3) It would prevent corruption. It is well known that every Chief Minister knows very well that
after five years he/she will demit from post. So he/she start to arrange a bungalow for after
retirement.
(4) It will prevent politicians to take several Government bungalows due to another capacity like
Governor, M.P. Minister etc.
(5)Although this judgment is confined to section 4(3) of the Act, 1981. But it would be a
warning for other States.
(6) It will remove confusion of several public officers who even after demitting from public post
behave as a public officer and expect some privileges. Supreme Court has clearly said that after
demitting from public post, his public post becomes history for him and he becomes commoner.
In Uttar Pradesh, several politicians will be bound to leave Government Bungalows. Name of
some politicians have been mentioned in following chart-
S.N. Name and Year Party City Areas Rent
1 Mr. N.D.Tewari Congress Lucknow 1046 7550 Rs.
(1976, 1985 and 1988)
2 Mr. Kalyan Singh BJP Lucknow 1468 sq.km 12500Rs.
(1991,1997)
3 Mr. Rajanth Singh BJP Lucknow 705 sq.km 5320 Rs.
(2000)
4 Mr. Mulayam Singh Yadav SP Lucknow 243 sq.km 13500 Rs.
(1989, 1993, 2003)
5 Miss. Mayawati BSP Lucknow 2164 sq.km 12500 Rs.
(1995,1997,2002,2007)
6 Mr. Akhilesh Yadav(2012) SP Lucknow 1535 sq.km 13500 Rs.
These leaders have purchased own
bungalows and due to another capacity
like Governor, M.P. Minister have
another Government building also.
In disguise of trust, leaders of all
parties are capturing public
properties.
354

Black Day for SCs and STs- March 20, 2018. On this day Division Bench of Supreme Court of
India comprising of Hon‟ble Justices Adarsh Kumar Goel and U.U.Lalit, decided two leading
cases and both cases were decided against interest of SCs and STs. In one case „Review Petition‟
was disposed which was related to reservation in Service for SC, ST, and OBC and other was
related to Atrocities Act, 1989. Both the cases were decided by same bench on the same date. In
the case of Dr. Lal Chand Prasad & Anr. Vs. Union Of India & Ors , Review petition was
rejected which was challenging Vivekanand Tiwari and Anr. Vs. Union of India and 5 Ors
decided by Allahabad High Court on July 21, 2017. Second case is Dr. Subhash Kashinath
Mahajan vs. State of Maharashtra and Anr. In this case Supreme Court conferred wider
discretionary power on police without knowing ground reality of police behaviour and atrocities
against SCs and STs.
These are two following cases-
(1) Reservation in Service for SC, ST, and OBC- Dr. Lal Chand Prasad & Anr. Vs. Union of
India & Ors.
(a) Disposal of SLP –
After losing the battle in Allahabad High Court in the case of Vivekanand Tiwari and Anr. Vs.
Union of India and 5 Ors which was decided on 07April, 2017, „Special Leave Petion was filed
by Dr. Lal Chand whose residence is Varanasi. Name of the case is Dr. Lal Chand Prasad &
Anr. Vs. Union of India & Ors. SLP was disposed on 21/07/2017. Disposal of SLP (Civil)
16515/ 2017 and Diary Number 17598/2017 Filed on 12-06-2017. In this Case Supreme Court
clearly said that there was no ground to interfere in the decision of Allahabad High Court dated
07April, 2017. This is an order. On 05 March 2018, UGC issued guidelines for all universities to
implement the decision of Vivekanand Tiwari and Anr. Vs. Union of India and 5 Ors.
(b) Disposal of Review Petition –
Review Petition was disposed on March 2018.
DR. LAL CHAND PRASAD & ANR. VS. UNION OF INDIA & oRS , March 20, 2018.
Disposal of Review Petition Civil- 652/2018, Diary Number30478/ 2017 filed on
21/09/2017.Hon‟ble Justices Adarsh Kumar Goel and U.U.Lalit. Supreme Court said that there
was no reason to interfere the matter. Review Petition was dismissed.
(2) Dr. Subhash Kashinath Mahajan vs. State of Maharashtra and Anr. Date of Decision -
March 20, 2018. - Section 18 (Anticipatory Bail) of Scheduled Caste And Scheduled Tribe
(Prevention of Atrocities) Act, 1989 was modified and in this case Supreme Court conferred
wider discretionary power on police without knowing ground reality of police behaviour and
atrocities against SCs and STs. Now police has power for preliminary inquiry before lodging an
FIR. It is well known that that how much police in reluctant in lodging FIR even in genuine case
unless person in influential.
314
355
SUPREME COURT AND HUNG ASSEMBLY OF KARNATAKA
Regarding Karnataka Dispute, three "Orders" were passed on 17, 18 and 19 May, 2018. All the
three orders were passed in case of Dr. G. Parmeshwara & Anr. Vs. Union of India Ministry of
Home Affairs.
Name of the Case- Dr. G. Parmeshwara & Anr. Vs. Union of India Ministry of Home Affairs
Three Judge Bench - Hon'ble JJ (1) A.K.Sikri (2) S.A.Bobde (3) Ashok Bhushan.
Case Diary No. - 19482/2018.
Name of the Case- Dr. G. Parmeshwara & Anr. vs. Union of India Ministry of Home Affairs
(1) First Order (17 May) – This „Order‟ is called midnight Order. (2) Second Order (18 May) –
In this „Order‟ guidelines were passed for floor test. (3) Third Order (19 May) – In this order
Court rejected objection regarding appointment of Mr. K.G.Boppaiah as pro-tem Speaker.
(1) First Order -Midnight Order (2.00A.M, May17, 2018) - Order passed on 17 May is called
midnight order by which Supreme Court passed an order to produce document but did not
prohibit swearing ceremony of Mr. Yeddyurappa which was scheduled at 9.30 a.m. on 17th
May,2018 and fixed the date of next hearing on May 18, 2018.
(2) Second Order - Order passed on May 18, 2018- In this Order Supreme Court passed a
guidelines for floor test at 04.00 p.m. on May 19, 2018. It also directed for appointment of pro-
tem Speaker.
(3) Third Order - Order passed on May 19, 2018- Additional Solicitor General on behalf of
Karnataka Government made promised for live telecast and permission for media for coverage of
floor test. Relying his statement Supreme Court passed an order that that no further order for
removing Mr. K.G. Boppaiah, pro-tem Speaker. It means appointment of pro-tem speaker was
approved.
315
356
URGENT NEED OF LAW TO REGULATE THE SITUATIONS OF HUNG

LEGISLATIVE ASSEMBLIES
Abstract
How Governors will tackle the situation in case of hung Legislative Assemblies? Whether largest
Party should be given preference over pre or post-election coalition parties or vice versa.
Whether discretionary powers of Governors should be restricted. How many days should be
given for floor test? Whether manners of selection and removal of Governors are affecting
integrity and propriety of Governors. Current disputes after Karnataka election have motivated
me to search answer of these questions. In this research paper, I am trying to find out definite
solutions so that in future such conflicting situations may be avoided. Indian has bitter
experience of coalition governments. Such Governments are unstable and fragile. Future of such
Governments is unpredictable. In States there are several example of coalition governments. For
example Mr. Kalyan Singh‟s, Mr. Mulayam Singh Yadav‟s and Mr. Rajnath Singh‟s
Governments. India has accepted Parliamentary form of Government. Only that party can form
Government which has secured magic number in election of Legislative Assembly. Sometime
neither party secures magic numbers and form coalition to secure magic numbers. Laws,
Conventions and judgments are very uncertain to tackle such circumstances. Sometime largest
party is invited and sometimes pre/post coalition parties are invited to form the Government.
Certainty of law is necessary to prevent horse-trading and to form Government which can lead
the country towards prosperity and secure nutritious food, fresh air, drinking water, qualitative
education, accommodation and employment etc.
Introduction
Governor is appointed by President.317 In practice only those person can be appointed as a

Governor to whom Council of Ministers in Centre thinks fit. The Governor shall hold office
during the pleasure of the President.318 In case of Ram Jawaya Kapur vs. State of Punjab,319
Supreme Court said that after reading Articles 53 and 74, it becomes clear that the President is a
formal or constitutional head while real head is Council of Ministers. Whenever Government in
center is changed, Governor appointed by previous Government are also changed. It also
happened in 2004 & 2014. Post of Governor has become political post. Now a days Governors
are doing like a loyal dog who is ready to bite any person as directed by master.
It is rule that Governor acts on the aid and advice of the Council of Ministers. In case of Ram
Jawaya Kapur vs. State of Punjab,320 Supreme Court said that it becomes clear that the Governor
is a formal or constitutional head while real head is Council of Ministers. We have accepted
316
Assistant Professor, Faculty of Law, University of Delhi, Delhi. krishnamurari576@gmail.com
317
Constitution of India, 1950, Article 155.
318
319
AIR 1955 SC 549
320
AIR 1955 SC 549
357
Parliamentary form of Government as in England. In Samsher Singh vs. State of Punjab,321

Supreme Court said that wherever the Constitution requires satisfaction of Governor for the
example Articles 213 and 356, it is not the personal satisfaction of Governor. It is the satisfaction
of the Council of Ministers in constitutional sense under the cabinet system of Government. So
from these cases it becomes very clear that actual power is in the hand of the Council of
Ministers rather than Governor.
There are certain exceptional circumstances when Governor acts according to own discretion.322
One of them is inviting a person to form ‗Government‘. Governor has more widely discretionary
power than discretionary power of President of India. Governor may reserve any bill for
consideration of President.323 He may also submit report for imposition of President‘s Rule in
State.324 He may also grant sanction to prosecute a Minister, including Chief Minister under
Prevention of Corruption Act, 1988.325 Exercise of discretion by the Governor is subject to
judicial review.326 Discretion must not be used in arbitrary and capricious manner.327 Governor is
not employee or servant of Government of India.328
Since 1951 to till now, there is no uniformity what Governor should do in case of hung
Assembly. Sometime leader of largest party and sometime leader of pre /post- election coalition
as convenient to Center Government is called to form the Government. This is against the federal
features of Constitution of India. Sarkaria Commission,329 330 Justice M.N. Venkatachaliah
Commission331 and Punchhi Commission332 have recommended guidelines for Governor to use
discretion in case of hung Assembly and manner of appointment and removal of Governor. Floor
321
AIR 1974 SC 2129
322
Article 163- (1) There shall be a Council of Ministers with the Chief Minister at the head to aid and
advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution
required to exercise his functions or any of them in his discretion.
323
Constitution of India, 1950. Article 200.
324
Constitution of India, 1950. Article 356.
325
M.P. Special Police Establishment vs. State of Madhya Pradesh, AIR 2005 SC 325.
326
B.P. Singhal vs. Union of India, (2010) 6 SCC 331.
327
B.P. Singhal vs. Union of India, (2010) 6 SCC 331.
328
Hargovind Pant vs. Dr. Raghukul Tilak & Ors, 1979 AIR 1109.
329
In June 9, 1983 the Union Government constituted a Commission under the Chairmanship of Justice
R.S. Sarkaria with Shri B. Sivaraman and Dr. S.R. Sen as its members, to review the question of Centre -
State relations. The Commission submitted its report in January 1988. Total pages are 1600. This report is
divided into 19 Chapters.
330
Report of Sarkaria Commission, Available at: http://interstatecouncil.nic.in/report-of-the-sarkaria-
commission/ (Visited on May 22, 2018).
331
The National Commission to Review the Working of the Constitution was set up by Government
Resolution dated 22 February, 2000 under the Chairmanship of Justice M.N. Venkatachaliah. Main
function of this Commission was to suggest best methods after observing the experience of constitution
past 50 years.The Commission submitted its report in two volumes to the Government on 31st March,
2002.
332
The Commission on Centre-State Relations was constituted by Government under the Chairmanship of
Hon‘ble former Chief Justice of India Madan Mohan Punchhi on April 27, 2007 to strengthen Center-
State Relationship after Sarkaria Commission. Justice M.N. Venkatachaliah Commission was working of
whole constitution constituted in 2000. Punchhi Commission submitted its Report in seven volume on
March 30, 2010.
358
test is mandatory to decide majority in Assembly. 333 But in absence of certain enacted laws,
these guidelines and decisions have been violated.
I have decided to discuss this topic with the help of certain sub-topics. These sub-topics are-
(1) Appointment and Removal of Governor (2) Hung Assembly and appointment of Chief
Minister (3) Reports (4) Decided Cases (5) Suggestions and (6) Conclusion
(1) Appointment and Removal of Governor
Governor of State shall be appointed by the President by warrant under his hand and seal. 334 The
Governor shall hold office during the pleasure of the President.335 But Governor is not an agent
of the President of India.336 In India, there is Parliamentary form of Government. In this form of
Government, there are two head. One is the formal or Constitutional head and other is real head.
President and Governors are formal or Constitutional head. Real executive powers are vested in
Ministers or Cabinet.337 After observing Articles 52, 53, 74 and Ram Jawaya Kapur Vs State of
Punjab,338 Shamsher Singh vs. State of Punjab339 & S. P . Gupta vs. Union of India,340 it can said
that real powers of the President are vested in the Council of Ministers. So indirectly power of
President is used by Council of Ministers.
In the case of Hargovind Pant vs. Dr. Raghukul Tilak341 Constitutional Bench of Supreme Court
held that Governors hold an independent constitutional office which is not subject to the control
of the Government of India. They are not employee or servant of anyone. He occupies a high
constitutional office with important constitutional functions and duties.
Although Supreme Court has held that Governor is not employee or servant of anyone. But in
practice his position is worst in comparison to another authority. Government Servant cannot be
dismissed without being given a right of being heard, the Governor can be removed from office
under Article 156(1) without assigning any reason. Government Servants are entitled for audi
Alteram partem342 but Governor is not entitled for this.343
Sarkaria Commission344 (Commission on Center- State Relation), 1988.
Sarkaria Commission has mentioned in its report that frequent removal and transfer of Governors
have lowered the dignity of Governor. Many Governors looking forward for further office under
the Union or active role in politics after their tenure, came to regard themselves as an agent of
333
S.R.Bommai and Anr. Vs. UOI, AIR 1994 SC 1918.
334
335
336
H. M. Seervai, Constitutional Law of India 2065 (Universal Law Publishing Co. Pvt. Ltd. Delhi, 4th
Edn., Vol.2, 1993).
337
Ram Jawaya Kapur Vs State of Punjab, AIR 1955 SC 549
338
AIR 1955 SC 549
339
AIR 1974 SC 2129
340
AIR 1982 SC 149
341
1979 AIR 1109.
342
343
M.P. Jain, Indian Constitutional Law 359 (Lexis Nexis, Gurgaon, 8th Edn., 2018).
344
Report of Sarkaria Commission, Available at: http://interstatecouncil.nic.in/report-of-the-sarkaria-
commission/# (Visited on May 22, 2018).
359
the Union.345 The Commission has recommended that Governor should be appointed through
consultation process. Only that person should be appointed as a Governor who had not
participated in active politics recently.346 Chief Minister of the State, Speaker of Lok Sabha and
Vice –President of India must be consulted. It was also recommended for amendment for Article
155 for inserting procedure of consultation.347 It was recommended that the Governor‘s tenure of
office of five years in a State should not be disturbed except very rarely and that too, for some
extremely compelling reason. He should be given an opportunity of hearing. He should be
removed on the recommendation of an ‗Advisory Group‘ consisting of the Vice-President of
India and the Speaker of the Lok Sabha or a retired Chief Justice of India.
Justice M.N. Venkatachaliah Commission (2002) –
This Commission is also known as National Commission to Review the Working of the
Constitution.348 This Commission suggested for constitution for a Committee comprising of the
Prime Minister of India, the Home Minister of India. It was discretionary power of the
Committee either to include Vice-President or not.
In the case of Rameshwar Prasad v. Union of India,349 Supreme Court leaves at the wisdom of
political parties and their leaders to formulate national policy with some common minimum
parameters applicable and acceptable to all major political parties for appointment and
removable of Governor.
Punchhi Commission350 (2010)
Report of the Commission on Centre-State Relations is also known as Punchhi Commission.351

This Commission recommended for amendment of Article 156 and Article 157 of Constitution
of India. Regarding Article 156, it recommended that the phrase ―during the pleasure of the
President‖ must be substituted by an appropriate procedure so that before removal opportunity to
hear Governor must be given. It was against ―Doctrine of Pleasure‘ in case of removal of
345
Report of Sarkaria Commission, Chapter IV, Role of the Governor, 4.1.02.
346
This view was reiterated in case of Rameshwar Prasad vs. Union of India, (2006) 2 SCC 1, AIR 2006
SC 980
347
Sarkaria Commission Report, Chapter IV, Role of the Governor, Recommendation , Para 4.16.03
348
The National Commission to Review the Working of the Constitution was set up by Government
Resolution dated 22 February, 2000 under the Chairmanship of Justice M.N. Venkatachaliah. Main
function of this Commission was to suggest best methods after observing the experience of constitution
past 50 years.The Commission submitted its report in two volumes to the Government on 31st March,
2002.
349
AIR 2006 SC 980
350
The Commission on Centre-State Relations was constituted by Government under the Chairmanship of
Hon‘ble former Chief Justice of India Madan Mohan Punchhi on April 27, 2007 to strengthen Center-
State Relationship after Sarkaria Commission. Justice M.N. Venkatachaliah Commission was working of
whole constitution constituted in 2000. Punchhi Commission submitted its Report in seven volume on
March 30, 2010.
351
Report of the Commission on Centre-State Relations, available at: http://interstatecouncil.nic.in/wp-
content/uploads/2015/06/volume2.pdf (Visited on May 22, 2018).
360
Governor.352 This Commission was in favour of inserting some more qualifications for
Governors.
The Commission recommend the following amendments to Article 157 of the Constitution to
ensure the independence and dignity of the office: (i) The Governor should, in the opinion of the
President, be an eminent person; (ii) The Governor must be a person from outside the concerned
State; (iii) The Governor should be a detached person and not too intimately connected with the
local politics of the State. Accordingly, the Governor must not have participated in active
politics at the Centre or State or local level for at least a couple of years before his
appointment.353
UPA Government came into power after defeating NDA Government in 2004. All Governors of
Uttar Pradesh, Haryana, Gujarat and Goa were removed on July 2, 2004. It was challenged
through writ petition under Article 32 by former BJP MP B.P. Singhal and name of the case was
B.P. Singhal vs. Union of India.354 Constitution Bench Supreme Court of India headed by CJI
K.G. Balakrishnan concluded following points - : Office of Governor depends upon pleasure of
President. So no need to assign any reasons or providing an opportunity for hearing. But such
removal must not be arbitrary, capricious or unreasonable. This power must be exercised in
exceptional circumstances on the basis of compelling reasons. If the aggrieved is able to show
prima facie arbitrary or mala fides use of power, then Court has power of Judicial Review. A
Governor cannot be removed on the ground that he is out of sync with the policies and ideologies
of the Union Government or the party in power at the Centre. Nor can he be removed on the
ground that the Union Government has lost confidence in him. It follows therefore that change in
government at Centre is not a ground for removal of Governors holding office to make way for
others favoured by the new government.
(2) Hung Assembly and Appointment of Chief Minister
Governor shall act on the aid and advice of Council of Ministers except where Constitution
requires to act according to his own discretion.355 Chief Minister shall be appointed by the
Governor.356 Any person may be appointed by Chief Minister even he is neither member of
Legislative Assembly nor member of Legislative Council.357 Reason of this is absence of
expression ―from amongst members of the legislature‖ in Article 164(1). 358 Only condition is
that he must be member of either House within six months.359 A person disqualified for to be
member of either House cannot be appointed as a Chief Minister.360
Hon‘ble Justice Krishna Ayer observed that Governor has discretionary power in the choice of
Chief Minister, restricted this choice is by the paramount consideration that he should command
352
Report of the Commission on Centre-State Relations, Para 4.4.06
353
Report of the Commission on Centre-State Relations, Para 4.4.11
354
(2010) 6 SCC 331.
355
356
357
Durga Das Basu, Shorter Constitution of India 1098 (Lexis Nexis, Gurgaon, 14th Edn., Vol. 2, 2009).
358
P M Bakshi, Commentary on the Constitution of India 532 (Lexis Nexis, Gurgaon, 2nd Edn., 2016).
359
Constitution of India, 1950, Article 164 (4) and S.R.Chaudhari vs. State of Punjab, AIR 2001 SC
2707.
360
B.R. Kapoor vs. State of Tamil Nadu &Others¸ AIR 2001 SC 3435.
361
a majority in the house.361 The Council of Ministers shall be collectively responsible to the
Legislative Assembly of the State.362
In Constitution of India, it has not been written that only that person can be appointed as a Chief
Minister who has majority in Legislative Assembly. It has also not been written than Governor
has power to call Chief Minister to prove majority in the Assembly. These questions were raised
before Patna High Court when Governor after appointing Smt. Rabri Devi as a Chief Minister
directed to prove majority within 10 days.363 This direction was given on March 9, 1999. At that
time NDA was in Centre. In the Case of Sapru Jayakar Motilal C.R. Das vs. Union of India
(UOI) and Ors.364 Patna High Court with the help of Shamsher Singh case365 and U.N.R.Rao
case366 decided this questions. In Shamsher Singh Case it has been held that India has accepted
Parliamentary form of Government. In the case of U.N.R.Rao, it was contended that convention
prevailing in United Kindom must be ignored. Supreme Court rejected this argument and held
that in absence of clear provisions ‗conventions‘ before the commencement of the Constitution
may be adopted. In this case Hon‘ble CJI S. M. Sikri said, ―If the words of an article are clear,
notwithstanding any relevant convention, effect will no doubt be given to the words. But it must
be remembered that we are interpreting a Constitution and not an Act of Parliament, a
Constitution which establishes a Parliamentary system of Government with, a Cabinet. In trying
to understand one may well keep in mind the conventions prevalent at the time the Constitution
was framed‖.367
The Patna High Court has invoked two constitutional features to support that Governor has
power to call for floor test, viz., (1) Collective Responsibility of the Council of Ministers to the
House and (2) Discretionary nature of the Governor to appoint the Chief Minister. In this case
Hon‘ble Justice B P Singh said, ―…To us it appears that even if the Constitution does not refer in
express words to a vote of confidence, or to a vote of no confidence, the principle of collective
responsibility of the Council of Ministers to the legist live Assembly includes within its ambit
the rule that the Council of Ministers must enjoy the support of the majority of members of the
Legislative Assembly‖.
Supreme Court in several cases has said that floor test is best methods to judge the majority in
Assembly.368
From above discussion it has become very clear that only that person may be appointed as a
Chief Minister who is able to prove majority in Legislative Assembly and relevant conventions
before the commencement of the Constitution may be adopted for interpreting relevant
provisions of the constitution.
When a single largest party or pre-poll coalition of parties has not secured majority in Legislative
Assembly that is called hung Assembly.
There are some committees and Commissions have suggested regarding appointment of Chief
Minister in case of hung Assembly which are following-
361
Shamsher Singh & Anr vs. State Of Punjab, AIR 1974 SC 2129
362
363
Sapru Jayakar Motilal C.R. Das vs. Union of India (UOI) and Ors. AIR 1999 Pat 221.
364
AIR 1999 Pat 221.
365
Shamsher Singh & Anr vs. State Of Punjab, AIR 1974 SC 2129
366
U.N.R. Rao vs. Smt. Indira Gandhi, AIR 1971 SC 1002.
367
U.N.R. Rao vs. Smt. Indira Gandhi, AIR 1971 SC 1002.
368
S. R. Bommai Vs. Union of India, AIR 1994 SC 1918, Rameshwar Prasad vs.UOI, AIR 2006 SC 980
and Nabam Rebia, and Bamang Felix vs. Deputy Speaker and others, (2016) 8 SCCC 1.
362
THE GOVERNORS‘ COMMITTEE (BHAGWAN SAHAY COMMITTEE) REPORT,

1971.
This Committee suggested following formula to appoint a person as a Chief Minister369-
1. Where a single party commands a majority in the Assembly, the Governor is to call upon its
leader to form the government.
2. If before the election, some parties combine and produce an agreed program and the
combination gets a majority after the election, the commonly chosen leader of the combination
should be invited to from the government.
3. If no party is returned in a majority at the election and, thereafter, two or more parties come
together to from the government, the leader of the combination may be invited to form the
government.
4. The leader of a minority party may be invited to form the government if the Governor is
satisfied that the leader will be able to muster majority support in the House.
Sarkaria Commission (1988) – In choosing a Chief Minister, the Governor should follow the
following principles in accordance with preference370-
(1) The party or combination of parties which commands the widest support in the Legislative
Assembly should be called upon to form the Government.
(2) An alliance of parties that was formed prior to the elections.
(3) The largest single party staking a claim to form the government with the support of others,
including ―independents.‖
(4) A post-electoral coalition of parties, with all the partners in the coalition joining the
Government.
(5) A post-electoral alliance of parties, with some of the parties in the alliance forming a
Government and the remaining parties, including ―independents‖ supporting the Government
from outside.
Basis of political convention in England in forming a ministry is that the King‘s Govt. must go
on, and that the party which commands the widest support in the House of Commons must be
called upon to form the government.371
In some States the Governors had invited the leader of the single largest party to form a ministry
and ignored the claim of the leader of a united front and vice – versa. I have tried to show
position of hung Assembly and discretionary power used by Governor through Chart-1. This
Chart clearly shows that behaviour of Governor is directly or indirectly influenced by Centre
Government.
Chart- 1
State / Year Single Largest Coalition of Invitation of Governor Central
Party Parties Govt.
Madras / Congress 152 UDF (Post-poll Single Largest Party Congress
1952 seats Coalition) (Congress 152 seats)
(166 Seats) (This was the first case
when majority was proved
369
M.P. Jain, Indian Constitutional Law 378 (Lexis Nexis, Gurgaon, 8th Edn., 2018).
370
Report of Sarkaria Commission, Chapter IV, Role of the Governor, Para 4.11.04, Available at:
http://interstatecouncil.nic.in/wp-content/uploads/2015/06/CHAPTERIV.pdf (Visited on May 22, 2018).
371
H. M. Seervai, Constitutional Law of India 2063 (Universal Law Publishing Co. Pvt. Ltd., Delhi, 4th
Edn., Vol.2, 1993).
363
by hook or by crook). 372
Haryana/ Congress (I) 35 Lok Dal-BJP Single Largest Party Congress

1982 Seats 36 Seats Congress (I) 35 Seats373
Bihar JD(U) and BJP RJD When JD (U) and BJP UPA
2005 tried to form the
Government, Assembly
was dissolved even
without single sitting.374
Goa Congress 17 BJP 13 and Coalition (BJP 13 and NDA
March 2017 Other Parties Other Parties)
Manipur Congress 28 BJP 21 and Coalition NDA
March 2017 Coalition
Meghalya Congress 21 BJP 2 and Coalition NDA
March 2018 Coalition
Karnataka Congress and 104 Largest Party NDA
May 2018 Coalition 117 (15 Days time was given
by Governor for floor test
which was reduced up to
30 hours by Supreme
Court).375
Recommendations –
Federal character is the basic structure of the Constitution of India. 376 To protect the federal
feature of the Constitution of India, an independent Governor is sine qua non who can use his
discretion according to Constitutional ethos rather than political partisan. Since commencement
372
Gautam Bhatia, ―Do we need the office of the Governor?‖ The Hindu, May 24, 2018.
373
Dr. J.N. Pandey, Constitutional Law of India 592 (Central Law Agency, Allahabad, 52nd Edn., 2015).
374
In the case of Rameshwar Prasad vs. Union of India, AIR 2006 SC 980, Supreme Court declared that
dissolution of Assembly by Governor was unconstitutional. Coalition must be given an opportunity for
floor test.
375
Regarding Karnataka Dispute, three "Orders" were passed on 17, 18 and 19 May, 2018. All the three
orders were passed in case of Dr. G. Parmeshwara & Anr. Vs. Union of India Ministry of Home Affairs.
These Orders were passed by three Judge Bench - Hon'ble JJ (1) A.K.Sikri (2) S.A.Bobde (3) Ashok
Bhushan. Case Diary No. of this case is 19482/2018.
(1) First Order -Midnight Order (2.00A.M, May17, 2018) - Order passed on 17 May is called midnight
order by which Supreme Court passed an order to produce document but did not prohibit swearing
ceremony of Mr. Yeddyurappa which was scheduled at 9.30 a.m. on 17th May,2018 and fixed the date of
next hearing on May 18, 2018.
(2) Second Order - Order passed on May 18, 2018- In this Order Supreme Court passed a guidelines for
floor test at 04.00 p.m. on May 19, 2018. It also directed for appointment of pro-tem Speaker.
(3) Third Order - Order passed on May 19, 2018- Additional Solicitor General on behalf of Karnataka
Government made promised for live telecast and permission for media for coverage of floor test. Relying
his statement Supreme Court passed an order that that no further order for removing Mr. K.G. Boppaiah,
pro-tem Speaker. It means appointment of pro-tem speaker was approved.
376
Kesavananda Bharati vs. State of Kerala, AIR 1973 SC 1461.
364
of Constitution to till now, behaviour of Governors are based on political partisan. Such
behaviour of Governors are heart wrenching for thinkers and catastrophe for constitution.
There are following recommendations regarding this topic -
(1) Tenure of Governor must be certain like other Constitutional bodies namely, President, CAG,
Judges. His tenure totally depends upon pleasure of President who removes it without assigning
any reasons. Indirectly tenure of Governor depends upon sweet will of ruling party in Center. He
should be removed without assigning any reason and giving an opportunity for hearing.
(2) Wider and arbitrary discretionary power of Governors are against representative form of
Government. Such discretionary power must be must be curtailed by amending Article 163 in the
line of Article 74.
(3) There is need to amend Article 164 and insert guidelines to decide which party or person
should be invited to form Government and manner for proving majority in Assembly. There are
following rules must be follow in preference at the time of appointing a person as Chief
Minister-
Rule 1- Only that Party or pre-poll combination of Parties must be invited which have secured
absolute majority in the Assembly.
Rule 2- In case of non-fulfilment of first rule, largest single party in Assembly election must be
invited to form Government.
Rule 3- In absence of first and second rule, post-poll combination of Parties which are claiming
majority in the House must be invited to form Government.
Rule 4- Floor test must be followed to prove majority in the House.
(4) Article 156 (1) must be amended and phrase ‗pleasure of President‘ must be omitted.
(5) Duo Article 155 and Article 156 must be amended and ‗National Governors Appointment
and Removal Commission‘ (NGARC) consisting of Prime Minister of India, Home Minister of
India, Speaker of Lok Sabha , Chairperson of Rajya Sabha, Leader of Opposition and Chief
Minister of the State in which Governor is to be appointed must be inserted. For appointment of
any person, at least four members of the Committee must be agree.
(6) Article 157 must also be amended. There are following qualifications must be added –
(i) He must an eminent person. (ii) He has not actively participated on behalf of any party during
last five years. (iii) His previous record is beyond political partisan.
Conclusion -
Governor is neither an employee nor an agent of President of India. Governor is appointed by
President on the advice of the Council of Ministers. Crucial role of Government in appointment
and removal of Governor makes the Governor political agent. Since Madras (1952) to Karnataka
(2018), Governors have acted like political agent of ruling party / parties and role of Governors
have been controversial since inception. Several Committees and Commissions have suggested
several formula for appointment and removal of Governors and use of discretionary power by
them. Supreme Court of India has also suggested for floor test and use of discretionary power.
Misera est servitus, ubi jus est vagum aut incertum which means it is a miserable slavery where
the law is vague or uncertain. So it is urgent need of law to enact particular law so that an
eminent and independent person may be appointed as a Governor to protect federal character of
the Constitution of India. Role of fair media and unbiased social media which creat political
awareness cannot be denied.
365
Krishna Murari Yadav, Assistant Professor, Faculty of Law, Delhi University, Delhi
Hat-trick in Law
(1) July 4, 2018 - Govt. of NCT of Delhi v. Union of India & Another
CJI Dipak Misra, Justices A.K. Sikri , A.M. Khanwilkar, D.Y. Chandrachud and Ashok
Bhushan
By this case tussle between Mr..Arvind Kejriwal and LG Mr. Anil Baijal was settled by
Supreme Court. This case is mainly related to Article 239–AA which is related to special
provisions with respect to Delhi. It was held that people are sovereign and LG is bound
by aid and advice of Delhi Government.
(2) July 5, 2018 – Submission of 276th Report of 21st Law Commission of India
The Twenty-first Law Commission of India was constituted through a Government Order
with effect from September 1, 2015. It has a three-year term, ending on August 31, 2018.
Its Chairperson is Dr. Justice Balbir Singh Chauhan. 21st Law Commission submitted its
276th Report to Ministry of Law and Justice on July 5, 2018. This Report is related to
―LEGAL FRAMEWORK: GAMBLING AND SPORTS BETTING INCLUDING IN
CRICKET IN INDIA‖. This report was prepared by Law Commission of India after
request of Supreme Court in case of Board of Control for Cricket in India v. Cricket
Association of Bihar and Ors.2016.
(3) July 6, 2018 - Shanti Bhushan v. Supreme Court of India Through its Registrar and
Another
Hon'ble Mr. Justice A.K. Sikri, Hon'ble Mr. Justice Ashok Bhushan
This case was decided on July 06, 2018. It was held that Chief Justice of India is master
of Roster and Chief Justice of India shall not be read as collegium of three or five judges.
Chief Justice of India has absolute power to allocate cases and constitute Benches.
366
Institution of Eminence (IoE) –

Empowered Expert Committee (EEC) headed by former Chief Election Commissioner Mr. N.
Gopalaswami considered application of 114 institutions among them 74 public institutions and
40 Private institutions. Committee was empowered to choose maximum 20 institution. The
Committee chose 11out of 114 institutions.377 Ministry of HRD awarded IoE status to three
public and three private institutions.
Public Sector: (i) Indian Institute of Science (IISc), Bangalore, Karnataka; (ii) Indian Institute of
Technology (IIT), Bombay, Maharashtra; and (iii) Indian Institute of Technology(IIT), Delhi.
Private Sector: (i) Jio Institute (Reliance Foundation), Pune under Green Field Category ( Still it is not
established), (ii) Birla Institute of Technology & Sciences, Pilani, Rajasthan; and (iii) Manipal Academy
of Higher Education, Manipal, Karnataka.
Benefits- Greater autonomy shall be given to these instructions. There are following benefits for
these institutions -
(1) Students - These Institutions will be free to decide fee for domestic and foreign students.
These institutions can admit foreign students up to 30% of admitted students;
(2) Faculty Members – These have autonomy to decide faculty members. They can recruit
foreign faculty up to 25% of faculty strength;
(3) Online Course – They can offer online courses up to 20% of its programmes;
(4) It can decide flexible course duration and structure, and
(5) Their academic collaborations with foreign Institutions will be exempt from approval of
Government or UGC except Institutions based on a list of negative countries prepared by
the External Affairs and Home Ministers. They can enter into academic collaboration
with top 500 in the world ranking Institutions without permission of UGC;
(6) These institutions will be free from regulation of AICTE and UGC (HECI).
(7) flexibility of course structure in terms of number of credit hours and years to take a
degree; complete flexibility in fixing of curriculum and syllabus, among others.
(8) Fund only for public institution - Each public Institution selected as ‗Institution of
Eminence‘ will get financial assistance up to Rs. 1000 Crore over the period of five years
under this scheme.378
Loss- Increasement of Fee is tremendous problem. Autonomous institutions are are increasing
fee structure without considering problem of students. Government will be helpless to control fee
structure of autonomous institutions. Criticism – Selection of Jio Institute only on the basis of its
proposal is not justified. No one knows future. What would be happened if Reliance Foundation
decided not to establish such institution? Who would be responsible? Only on the basis of Report
of N.Gopalswami Committee , this cannot be justified. Final decision is taken by Government
and Government is responsible for its work rather than Committee which has recommended.
Suggestions regarding HECI Act, 2018

377
The Indian Express, Reliance Institute gets ‗eminece‘ tag,Page no. 2, Date July 10, 2018.
378
Available at; http://mhrd.gov.in/sites/upload_files/mhrd/files/IoE_PR.pdf. This is contradictory. Government is
saying that Committee recommende only six institution will news paers is saying the Committee recommended 11
Institutions. Report of Gopalswami Committee is not available on website.
367
Assistant Professor
Faculty of Law, DU, Delhi
Higher Education Commission of India (Repeal of University Grants Commission Act) Act
2018
In the Press Note objects of the establishment of Higher Education Commission of India have
been mentioned. These object are (1) Less Government and more Governance (2) Separation of
grant functions (3) End of inspection raj (4) Focus on academic quality (5) Powers to enforce.
Object is pious and taking new initiating is good things.
Law is for public rather than public is for law. But I have some objections regarding proposed
new law. These objections are followings –
(1) Limited Jurisdiction- This Act is not covering institutions of ―National Importance‖
declared by the Government or State Legislature. Exclusion of institution will create differences
between ‗National Importance Institutions and other than National Importance Institutions. All
institutions must be covered by the proposed new Act.
(2) Political Interference - Taking power of funding from HECI and granting this power in the
hand of Ministry is very dangerous. Political interference is very dangerous on two points - (i) If
different political parties are ruling in Center and States, there would be a lot of hardship for
State universities and colleges in receiving money . (ii) Organization of ‗Seminars‘ and
‗Conferences‘ would not be possible on the topic which would be against the philosophy of
center Government. Speakers would be allowed only according to wish of central Government.
If any scholars are invited against the wishes of Ministry, next time Ministry either will not pay
or will pay after inordinate delay.
(3) No punishment for paucity of faculty members - Section 23 talks about penalties for non-
compliance for norms. Which types of norms it talks about? Whether penalties would be
imposed in case of running institutions without faculty members would be imposed on institution
and responsible authority or authorities. Near about one-third seats are vacant in educational
institutions. There are several institutions running without faculty members. For example, in
Delhi University 54.75% and in Allahabad University 64 % seats were vacant on April 1, 2017.
Government is not serious on this point. Even a new proposed Act is salient. How standard of
institutions can be maintained without faculty members? How is possible for students to get
quality education without faculty members.
(4) Payment for Compensation - There must be provision for payment of compensation in case
of violation of norms. Reason is that final loss is of students. Students are paying fee but not
getting qualitative education even quantitative education. If any institution is bogus and later on
derecognized then compensation must be paid for those students who had no knowledge
regarding bogus institution.
(5) Need of Single Body and Regulation of fee - There should be a single body to regulate all
types of educations especially fee matters. Several institutions are taking huge amount in form of
fees esp. in medical, engineering and law education. How is it possible to pay fifty to seventy
lakhs rs. for education. To save fifty to seventy lakhs rs. person have to earn near about five
368
crore rs. If a person pays such huge money, of course he will try to earn money and in
comparison to this fee, Government is paying nominal salary in public sector. So several students
are unable to get professional education despite of extra-ordinary talent. So several eminent
scholar run away to another country. It becomes hurdle for development of nation.
(6) Control over HECI - According to section 24 (4) Higher Education Commission of India
shall take steps to implement the advice rendered by the Advisory Council. It should not be make
mandatory. It is direct attack on independence HECI. In case of conflict between decision of the
Commission and Advisory Council, the Commission would be bound to take steps to implement
the decision of Advisory Council.
Any decision taken by Advisory Council headed by Union Minister for Human Resources
Development would be much more political and according to norm of ideology of Party from
which he belong rather than according to need of country. So there is no need of Advisory
Council.
(7) Control of Central Government by issuing directions – According to section 25(1) in the
discharge of its functions under this Act, the Commission shall be guided by such directions on
questions of policy relating to national purposes as may be given to it by the Central
Government.
According to section 25 (2) In case of a disagreement arises between the Central Government
and the Commission as to whether a question is or is not a question of policy relating to national
purposes, the decision of the Central Government shall be final.
Special Features of Higher Education Commission of India (Repeal of University Grants

Commission Act) Act 2018
Assistant Professor
Faculty of Law, DU, Delhi
There are following special features of proposed new Act, 2018 –
(1) Abolition of University Grants Commission – The University Grants Commission (UGC)
came into existence on 28th December, 1953 and became a statutory organization of the
Government of India by an Act of Parliament in 1956, for the coordination, determination and
maintenance of standards of teaching, examination and research in university education. By this
Act, Union Grants Commission shall be replaced by Higher Education Commission of India.
369
(2) Limited Jurisdiction- According to Section 1, this Act is not covering institutions of
―National Importance‖ declared by the Government or State Legislature.
(3) Establishment of the Commission – According to section 3 of Higher Education
Commission of India Act 2018 there shall be Higher Education Commission of India which shall
be consisted of 15 Members. The Commission shall consist of a Chairperson, Vice Chairperson
and twelve other Members to be appointed by the Central Government. The Secretary of the
Commission will act as the Member-Secretary. UGC consisted of 13 (including secretary)
members while HECI shall be consisted of 15 Members (including secretary).
(4) Search-Cum-Selection Committee (ScSc) – The Chairperson, Vice – Chairperson and other
Members shall be search and selected by Search-Cum-Selection Committee (ScSc). The
Chairperson shall be selected by a Search-Cum-Selection Committee (ScSc), consisting of
Cabinet Secretary (Chairperson), Secretary Higher Education, and three other eminent
academicians to be co-opted as members. The Vice Chairperson and the members shall be
selected by the same Search-Cum-Selection Committee, with the addition of Chairperson of
Commission as a member.
(5) Representation of Teachers – According to section 5 (3) (b) in UGC, at least four teachers
of Universities are mandatory. According to section 3 (8) (d) & (e) In HECI, two serving
Professors and two serving Vice – Chancellors are mandatory. In this way representation of
teachers has not been curtailed.
(6) Term of Members and Removal of Members - In UGC maximum age is 65 years for
Chairperson and Vice Chairperson. But term is different for Chairperson and Vice Chairperson.
Term for Chairperson is 5 years or age of 65 and term for Vice-Chairperson is 3 years or age of
65 whichever is earlier. For Members term is 3 years.
A person appointed as Chairperson, Vice Chairperson and other Members shall hold office for a
term of five years from the date on which he enters upon his office: Provided that Chairperson,
Vice Chairperson and Members shall cease to hold office on attaining the age of seventy years.
Members may be removed on nine grounds. In new Act there is uniformity regarding term
among Chairperson, Vice Chairperson and other Members.
(7) Advisory Council – There is no provision for Advisory Council under UGC Act, 1956.
According to section 24 there shall be an Advisory Council chaired by the Union Minister for
Human Resources Development, and with the Chairperson / Vice-Chairperson, members of the
Commission, and Chairperson/Vice-Chairpersons of all State Councils for Higher Education as
members.
It is good step. It is in consonance of federal structure of the Constitution of India.
Representation of all States has been given.
(8) Control over HECI - According to section 24 (4) Higher Education Commission of India
shall take steps to implement the advice rendered by the Advisory Council. It should not be make
mandatory. It is direct attack on independence HECI. In case of conflict between decision of the
Commission and Advisory Council, the Commission would be bound to take steps to implement
the decision of Advisory Council.
Any decision taken by Advisory Council headed by Union Minister for Human Resources
Development would be much more political and according to norm of ideology of Party from
which he belong rather than according to need of country. So there is no need of Advisory
Council.
370
(9) Financial Control – According to section 12 UGC was authorized to grant fund out of Fund
established under section 16. According to section 17 UGC is authorized to prepare budget.
UGC is not depend on any Ministry for financial support.
New Act is silent on this issue. There is no any separate fund for HECI. HECI is not responsible
for disbursing grants to universities or colleges. It means MHRD will allot fund for universities
and colleges.
Taking power of funding from HECI and granting this power in the hand of Ministry is very
dangerous. Political interference is very dangerous on two points - (i) If different political parties
are ruling in Center and States, there would be a lot of hardship for State universities and
colleges in receiving money . (ii) Organization of ‗Seminars‘ and ‗Conferences‘ would not be
possible on the topic which would be against the philosophy of center Government. Speakers
would be allowed only according to wish of central Government. If any scholars are invited
against the wishes of Ministry, next time Ministry either will not pay or will pay after inordinate
delay.
(10) Revocation of approval and penalty- According to section 23 , (1) If any University grants
affiliation in respect of any course of study to any institution in contravention of the provisions
of the regulation/rule/recommendation issued by the Commission, or violates any of the
norm/standard laid down by the Commission, or fails within a reasonable time to comply with it,
the Commission, after taking into consideration the cause, if any, shown by the
University/Institution for such failure or contravention may impose a penalty on such University
and/ or on such Institution which may include fine, or withdrawal of power to grant
degrees/diplomas or direction to cease operations.
In case of non-compliance of penalty by the Chief Executive and other members of Management
of such institution shall be prosecuted according to Cr. P.C. and may be imprisonment for a term
which may extend up to three years.
(11) Control of Central Government by issuing directions – According to section 25(1) in the
discharge of its functions under this Act, the Commission shall be guided by such directions on
questions of policy relating to national purposes as may be given to it by the Central
Government.
According to section 25 (2) In case of a disagreement arises between the Central Government
and the Commission as to whether a question is or is not a question of policy relating to national
purposes, the decision of the Central Government shall be final.
(12) Online – Under UGC Act, there is no provision for online application. Under new Act only
online application for HECI‘s approval is allowed.
371
The Hindu , June 28, 2018, The Indian Express, June 28, 2018.
372
How to write Articles for publication in ―Journal‖ –

First and most important condition is that starting of writing. Rome was not built in one day. If
you think that one day you will write an "Article" and next day you will be well known author. It
means you are fool person and nothing more. In starting, people will make joke and try to find
several lacunae in your writing. Such types of peoples are your real friends. Without criticism
you cannot improve yourself. Don‘t cut and pest. If you do this, you cannot learn whole life
There are following contents must be in your ―Article‖
(1) Abstract (2) Introduction (3) main body. In this parts there must be five or six heading i.e.,
(4) (5) (6) (7) (8) Suggestions and (9) Conclusion.
There are several journals in market. Generally every reputed public and private institution
publish its journal. Each journal follow its own methods of writing and footnoting. But generally
standard established by Indian Law Institute which is reputed institution in research area situated
just opposite of Supreme Court is followed all over India. Footnoting methods have been
uploaded on its website.
I am trying to summarize these methods-
(1) Article must be Times New Roman, Font-12 and line spacing 1.5.
(2) Footnoting – Times New Roman, Font-10 and line spacing 1.
(3) JILI demands 4000 -15000 words including footnotes. I think average 8000 words is
sufficient.
(4) Name of the topic must not exceed 15 words.
(5) Cases must be written in italic words and versus must be written like v. and not in italic word.
For example Kesavananda Bharati v. State of Kerala.
(6) In footnote regarding book only name of book would be italic and all other information
would not be italic.
Prof. M. P. Jain, Indian Constitutional Law 1300 (Wadhwa and Company Nagpur, New Delhi,
5th edn., 2003). For more information please visit http://ili.ac.in/footnoting.pdf.
(7) Name of the case should not be in bold letters. Bold letter be used only for headings and sub-
headings.
(8) Minimum number of footnoting must be 100 and maximum 200. Average 150.
How to write an Abstract – Abstract is like an advertisement of your work. According to JILI,
abstract must not exceed 150 words. But there are several other Journal who laid down that
379
373
abstract must not exceed 250 words. In abstract, purpose of writing must be mentioned. It means
why you are writing this Article.
Remarks – Four things are mandatory (1) Abstract (2) Introduction (3) Suggestions, and (4)
Conclusion. In Article reference is not written.
I have written only one unpublished ‗Article‘ according to this standard. No one guided me in
this way and I took a lot of time to understand this. So I am sharing this knowledge with all of
you. All my published ‗Articles‘ are sub-standard although their contents are original.
374
ROLE OF ABROGATION OF TRIPLE TALAQ IN AMELIORATING THE CONDITIONS

OF MUSLIM WOMEN
Abstract
Triple talaq is a kind of talaq by which husband gives divorce his wife with one pronunciation.
This is irrevocable and instant talaq. Triple talaq is also called „Talaq-E-Biddat‟. This type of
talaq compels wife to live in destitution. Several Countries had abolished this menace by making
laws. It is very unfortunate that India which is largest democracy in the world had not abolished
this menace by enacting law. Recently, Supreme Court of India has declared that „Talaq-E-
Biddat‟ is inconsistent with Articles 14, 15, and 21 of the Constitution of India. This judgment is
milestone in development of nation and to establish parity between Muslim men and Muslim
women. However, in practice, triple talaq is continue. So for proper implementation of this
judgment, Muslim Women (Protection of Rights on Marriage) Bill 2017 is in pipeline. This paper
point out brief history of triple talaq, judgments of several Courts and current position of this
talaq in world. There are also some suggestions to ameliorate the conditions of Muslim women.
I Introduction
Marriage dissolves in two ways either by death of party or by act of parties (divorce). Divorce
may be divided into two parts namely, (1) Extra-Judicial Divorce i.e. divorce without help of
Court. Extra-judicial Divorce may be further divided into three parts namely, (i) By husband (a)
Talaq (b) Illa (c) Jihar (ii) By wife – Talaq-e-Tafweez (Delegated Divorce. This power is
conferred by husband. It is totally depends upon discretion of husband.) (iii) By mutual
agreement (i) Khula & (ii) Mubarat. In all these cases, without sweet will of husband, divorce is
not possible, while wife cannot prohibit husband from taking divorce. (2) Judicial Divorce i.e.
divorce with the help of Court. From the very beginning, husband had unlimited power of
divorce and divorce by wife depends upon sweet will of husband. So the Dissolution of Muslim
Marriage Act, 1939 was passed whereby some special grounds of divorce were provided on the
basis of which woman may take talaq. This Act does not provide even a single ground of divorce
for husband because he had already unfettered power of divorce. Talaq is a divorce at the
instance of husband. There is a difference between ‗Talaq‘ and ‗Divorce‘. Talaq can be given
only by husband while divorce may be given by either party. Divorce includes Talaq. There are
two types of Talaq namely, (i) revocable talaq and (ii) irrevocable talaq. Revocable talaq may be
further divided into two parts i.e. ‗Talaq-e-ahsan, ‗Talaq-e-hasan‘. Irrevocable Talaq/instant
Talaq‘ is also called ‗Talaq-e-biddat‘. Among these Talaq, ‗Talaq-e-biddat‘ is called triple
Talaq. It is sinful form of talaq introduced by Omeyyad in order to escape the strictness of
law.380 This mode of Talaq prevails only among Hanafi sect of Sunni School. Constitutional
validity of ‗Talaq-e-biddat‘ was challenged in the case of Shayara Bano & Anr. v. UOI & Ors381
(Triple Talaq Case). Grounds of challenge was that ‗Talaq-e-biddat‘ was neither approved by
Prophet, nor in accordance with the provisions of the Constitution of India.
Supreme Court by 3: 2 majority of opinion in the case of Shayara Bano & Anr. v. UOI & Ors382
held that triple Talaq is against gender equality.383 Article 15 also prohibits discrimination on the
380
Aqil Ahmad, Mohammedan Law 171, (Central Law Agency, Allahabad, 23rd edn., 2009).
381
Shayara Bano & Anr. v. Union of India & Ors , available at:,
http://www.sci.gov.in/supremecourt/2016/6716/6716_2016_Judgement_22-Aug-2017.pdf (Visited on May 12,
2018).
382
Ibid.
383
Constitution of India, art.14.
375
ground of sex. Triple Talaq is arbitrary, while arbitrariness is anti-thesis of equality.384 Right to
life includes right to dignified life. Triple Talaq is against this right. Triple Talaq (irrevocable
Talaq) is not essential part of Talaq. So it is not protected under Article 25 of the Constitution.
Triple Talaq is unconstitutional. This is a very significant judgement for protection of interest of
women. Muslim Women (Protection of Rights on Marriage) Bill 2017 has been passed in Lok
Sabha and pending in Rajya Sabha in which ‗Talaq-e-biddat‘ has been declared an offence. Such
offence would be cognizable and non-bailable offence. Nineteen countries have abolished
‗Talaq-e-biddat‘. I have decided to discuss this topic in six parts. These parts are (1) History of
Triple Talaq (2) Current position of Triple Talaq in world (3) Constitution of India and other
enacted laws (4) Role of Indian Judiciary (5) Suggestions, and (6) Conclusion.
II History of Triple Talaq
After the death of Prophet Mohammad, on the point of successor of Prophet, Islam was divided
into two parts. One group claimed that successor must be selected. This group called Sunni.
Other group claimed that successor must be related by blood of prophet i.e. nominated. This
group called Shia. There are three schools of Muslim Law i.e. (1) Sunni School, (2) Shia School
& (3) Motazila School. These schools are divided into several sects. There are four Sects of
Sunni School namely, (i) Hanafi, (ii) Maliki, (ii) Shafei & (ii) Hanbali. There are three Sects of
Shia School namely, (i) Athna Asharia or Imamia (ii) Ismailyas and (iii) Zaidyas. According to
Census 2011,385 total population of India is 1210854977. Among these population, total
population of Muslim is 14.22%.386 Muslim women population of total population of country is
6.93%.387 Near about 90 % Indian Muslim is Hanafi Sunni who follows ‗Talaq-e-biddat‘. ‗Talaq-
e-biddat‘ is not followed by Shia School and Maliki sect of Sunni School.
In Islam, Prophet recognised only revocable kind of Talaq. He never recognized irrevocable
types of Talaq. There are two types of revocable Talaq. Revocable Talaqs are Talaq-e-Ahsan
(Most proper) and Talaq-e-hasan (Proper). ‗Talaq-e-biddat‘ is irrevocable types of Talaq.
‗Talaq-e-biddat‘ becomes irrevocable immediately when it is pronounced. The husband may
make three pronouncement in a period of purity ‗Tuhr‘ saying: ―I divorce thee (Thee means
you), I divorce thee, I divorce thee‖. He may declare his Triple Talaq even in one sentence
saying: ―I divorce thee thrice‖ or I pronounce my first, second and third Talaq.‖ 388 There is no
opportunity of reconciliation. This Talaq is also known as Talaq-ul-bain.389 According to Ameer
Ali, this mode of Talaq was introduced by the Omayad kings because they found the checks in
the Prophet‘s formula of Talaq inconvenient to them.390 Since then ‗Talaq-e-biddat‘ is in
practice. Due to advancement of technology, husbands have started to divorce their wives
through electronic media also. For example Mobile, WhatsApp, Facebook, Messenger etc.
III Current Position of Triple Talaq in World.
384
E. P. Royappa v. State of Tamil Nadu & Anr. AIR 1974 SC 555. This case was decided on November 23, 1973.
385
Census of India,2011, available at: http://censusindia.gov.in (Last visited on May 12, 2018)
386
Id.
387
Id.
388
Dr. R. K. Sinha, Muslim Law 89, (Central Law Agency, Allahabad, 6th edn., 2006).
389
Aqil Ahmad, Mohammedan Law 172, (Central Law Agency, Allahabad, 23rd edn., 2009).
390
Ameer Ali: Mohammedan Law, p.514, Part II, 3rd edn.
376
Most of the Muslim Countries do not recognize triple talaq as a valid form of divorce. They treat
the triple talaq as a single talaq. It is like the ratio of Masroor Ahmed Case.391
Abrogation of practice of ‗Talaq-E-Biddat‘ in World- Mr. Salman Khurshid has also
discussed in his book about those countries which had abolished triple talaq.392 The countries
which have abolished ‗Talaq-e-biddat‘ have been divided into Arab States, Southeast Asian
States, and Sub-continental States by Tahir Mahmood and Saif Mahmood.393 These
classifications are following-
(1)Arab States-(i) Algeria (ii) Egypt (iii) Iraq (iv) Jordan (v) Kuwait (vi) Lebanon (vii) Libya
(viii) Morocco (ix) Sudan (x) Syria (xi) Tunisia (xii) United Arab Emirates (xiii) Yemen (In
Yemen Halala has also been removed.) (2) Southeast Asian States, (i) Indonesia (ii) Malaysia
(iii) Philippines. (3) Sub-Continental States (i) Pakistan (ii) Bangladesh (iii) Sri Lanka.
Nineteen countries have abrogated ‗Talaq-e-biddat‘ by making laws. But, India, due to Muslim
appeasement policy never made law for betterment of Muslim women.
FLOW CHART
S. Name of Theocratic / Statutes
No. countries Non-theocratic State
Laws of Arab States
1 Algeria Islam, Code of Family Law, 1984 as amended in 2005,
Sunni (Majority) Article 49
2 Egypt Secular, Law of Personal Status 1929 as amended in
Sunni (Majority) 1985,
Article 3
3 Iraq Islam Code of Personal Status 1959 as amended in
Shias (Majority) 1987. Article 37 and Article 39.
4 Jordan Secular Code of Personal Status 1976
Sunni (Majority) Article 90
5 Kuwait Islam Code of Personal Status 1984, Article 109
6 Lebanon Secular 54% (27% Shia, Family Rights Law 1962
and 27% Sunni)
7 Libya Islam Family Law 1984
Sunni (Majority)
8 Morocco Islam, Sunni (Majority) Code of Personal Status 2004
9 Sudan Islam, Sunni (Majority) Law on Talaq 1935
10 Syria Secular, Code of Personal Status 1953 as amended in
Sunni(Majority) 1975
11 Tunisia Islam, Sunni (Majority) Code of Personal Status 1956 as amended in
1981
12 United Arab Islam Law of Personal Status 2005
Emirates Shias (Majority)
391
Masroor Ahmed v. State (NCT of Delhi) and Another, 2008(103) DRJ 137.
392
Salman Khurshid, Triple Talaq: Examining Faith 110 (Oxford University Press, New Delhi 1st Edn., 2018)
393
Tahir Mahmood and Saif Mahmood , ‗Muslim Law in India and Abroad‟, (Universal Law Publishing Co. Pvt.
Ltd., New Delhi, 2012 edition),
377
(UAE)
13 Yemen Islam, Sunni (Majority) Decree on Personal Status 1992
Laws of Southeast
Asian States
1 Indonesia Government recognizes Law of Marriage 1974
only six official
religions. Muslims of
the Sunni sect constitute
its majority.
2 Malaysia Islam Islamic Family Law Act 1984
Sunni (Majority)
3 Philippines. Secular. Christians Code of Muslim Personal Law 1977
constitute its majority.
Sub-Continental States
1 Pakistan Islam Muslim Family Laws Ordinance 1961
Sunni (Majority)
2 Bangladesh Islam Muslim Family Laws Ordinance 1961 as
Sunni (Majority) amended in 1985
3 Sri Lanka Secular Muslim Marriage and Divorce Act 1951 as
Buddhists (Majority). amended in 2006.
IV Constitution of India and other enacted Laws

Triple Talaq was challenged in the Supreme Court on the ground of Articles 14, 15, 16 & 21, and
it was defended on the ground of Articles 25 and 26 in the case of Shayara Bano & Anr. v. UOI
& Ors. So I have decided to discuss only these Articles. According to Article 14, ―The State shall
not deny to any person equality before the law or the equal protection of the laws within the
territory of India.‖ In the case of Budhan Choudhary & Others v. State of Bihar (1955) Supreme
Court said that Article 14 allows classification rather than class legislation. There are three
conditions must be fulfilled to apply by any legislation i.e.
(1) Reasonable differentia- The classification must be founded on an intelligible differentia
which distinguishes persons or things that are grouped together from others left out of the group.
For example age of person or sex.
(2) Rational relation with object- The differentia must have a rational relation to the object
sought to be achieved by the Act.
(3) No arbitrariness- Equality is anti-thesis of arbitrariness. So law must not be arbitrary. Gender
equality is a part and parcel of Article 14 of the Constitution of India.394
Article 15(1) and (2) prohibits discrimination on the ground of sex. Article 15(3) enables the
State to make special provision for the protection of interest of women. According to Article 21,
394
Ms. Githa Hariharan and Anr. v. Reserve Bank of India and Anr. AIR 1999 SC 1149. This case was decided on
February 17, 1999.
378
―No person shall be deprived of his life or personal liberty except according to procedure
established by law.‖ Right to life includes dignified life.395
Article 25 provides four types of rights namely, (1) Freedom of Conscience, (2) Freedom of
Profession, (3) Freedom of Practice, (4) Freedom of Propagation. There are certain restrictions
which may be grouped into three categories. These categories are (1) Restrictions under Article
25(1) -(i) Public order (ii) Health (iii) Morality (iv) Subject to the other provisions of this part,
(for example equality, abolition of untouchability, right to life, traffic in human being and forced
labour). (2) Restrictions under Article 25(2) (a) - (i) economic activity (ii) financial activity (iii)
political activity (iv) secular activity. (3) Restrictions under Article 25 (2) (b) - (i) Social welfare
& reforms (ii) Opening of Hindu religious institutions for all sections (e.g. S.C., S. T. &
Women). Total restrictions are ten.
Article 26 provides four types of rights namely, (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; (d) to administer such property in accordance
with law. There are three restrictions namely, (1) Public order (2) Health and (3) Morality.
According to Article 13, any law, either pre or post constitutional law, in case of inconsistency
with fundamental rights would be void.
There are two laws which are directly related to divorce. First law is The Muslim Personal Law
(Shariat) Application Act, 1937. The Muslim Personal Law (Shariat) Application Act declares
that Muslim Personal Law shall have overriding effect upon custom or usage in certain
circumstances. For example Talaq, Ila, Zihar etc. This Act may be applied in two circumstances,
(1) where both the parties are Muslim, or (2) Any Muslim who is competent to contract declares
before the competent and such authority accepts his declaration.
Second law is the Dissolution of Muslim Marriages Act, 1939 which provides some special
grounds for divorce by Muslim women.
In consequences of the decision of Shayara Bano & Anr. v. UOI & Ors, Muslim Women
(Protection of Rights on Divorce) Bill, 2017 was passed in Lok Sabha on December 28, 2017
and is pending in Rajya Sabha.396
Salient features of Muslim Women (Protection of Rights on Divorce) Bill, 2017- There are
following salient features of this Bill-
(1) All instant and irrevocable divorces are void- The Bill makes all declaration of talaq,
including in written or electronic form, to be void and illegal. It is significant that it also covers
Talaq by electronic methods. For example Talaq by WhatsApp, Facebook etc. Here ‗Talaq‘ word
has been used in a limited sense. Here ‗Talaq‘ means Talaq-e-biddat or any other similar form of
talaq pronounced by a Muslim man resulting in instant and irrevocable divorce. Talaq-e-biddat
refers to the practice under Muslim personal laws where pronouncement of the word ‗talaq‘
thrice in one sitting by a Muslim man to his wife results in an instant and irrevocable divorce.
395
Maneka Gandhi v. Union of India. AIR 1978 SC 597. This case was decided on January 25, 1978.
396
Muslim Women (Protection of Rights on Divorce) Bill, 2017, available at: http://www.prsindia.org/billtrack/
(Visited on May 11, 2018).
379
(2) Offence and penalty: The Bill makes declaration of talaq a cognizable and non-bailable
offence.397 A husband declaring talaq can be imprisoned for up to three years along with a fine.
(3) Allowances decided by First Class Magistrate: A Muslim woman against whom talaq has
been declared, is entitled to seek subsistence allowance from her husband for herself and for her
dependent children. The amount of the allowance will be decided by a First Class Magistrate.
First Class Magistrate also decides allowances under Code of Criminal Procedure, 1973.
(4) Custody of minor children: A Muslim woman against whom such talaq has been declared, is
entitled to seek custody of her minor children. The determination of custody will be made by the
Magistrate.
V Role of Indian Judiciary
In the case of Sara Bai v. Rabia Bai398, Justice Batchelor said, ―Divorce is good in law though
bad in Theology.‖ In this case, Bombay High Court recognised triple talaq as irrevocable.
In the case of Saiyid Rashid Ahmad v. Mussammat Anisa Khatun399 Privy Council held that
pronouncement of the triple Talaq by Ghiyas-ud-din constituted an immediate effect of divorce
and the children born after the triple divorce were held to be illegitimate. In this cases, Halala
process was not followed and there was no evidence of remarriage. In this case the Court held
that three talaqs pronounced at one time would be valid and effective.400
Jiauddin Ahmed v. Anwara Begum,401 Justice Baharul Islam - A perusal of the conclusion
recorded by the High Court, leaves no room for any doubt, that the ‗talaq-e-biddat‘ pronounced
by the husband without reasonable cause, and without being preceded by attempts of
reconciliation, and without the involvement of arbitrators with due representation on behalf of
the husband and wife, would not lead to a valid divorce.
Marium v. Md. Shamsi Alam402- The wife went to her parental home due to negligence of her
medical care by her husband. She denied to return home with husband and inconsequence of this,
husband uttered Talaq three times in one breath. Later on, he realized his wrong and revoked
divorce during Iddat period. In this case, Allahabad High Court interpreted the Muslim Law
liberally and held that, although, the word ‗Talaq‘ was uttered thrice, but since they were
pronounced in one breath, it is to be interpreted as one single pronouncement. So there was no
divorce.
Mohd. Ahmad Khan v. Shah Bano Begum403- In this case, Mohd. Ahmad Khan divorced his wife
with the help of ‗Talaq-e-biddat‘. But in this case main issue was regarding maintenance.
397
Muslim Women (Protection of Rights on Divorce) Bill, 2017, available at: http://www.prsindia.org/billtrack/
(Visited on May 11, 2018).
398
ILR (1905) 30 Bom. 537. This case was decided on December 9, 1905.
399
AIR 1932 PC 25 and 1932 (34) Bom. LR 475
400
Salman Khurshid, Triple Talaq: Examining Faith 101 (Oxford University Press, New Delhi 1 st Edn., 2018)
401
Jiauddin Ahmed v. Anwara Begum, available at ,
https://www.casemine.com/judgement/in/56b4950b607dba348f010cea, (Visited on May 12, 2018). Gauhati High
Court, Date of Judgment March 31, 1978.
402
AIR 1979 All. HC 257
403
AIR 1985 SC 945. This case was decided on April 23, 1985.
380
Rahmat Ullah and Khatoon Nisa v. State Of Uttar Predesh404- This case was directly related to
the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960. Husband and wife both
claimed that they had taken divorce by ‗Talaq-e-biddat‘ so their land did not exceed ceiling limit.
This judgment is ‗obiter dicta‘ on triple Talaq. In this case the Court observed that irrevocable
Talaq (Talaq-e-biddat) is unlawful because this kind of Talaq is against the dictates of the Holy
Quran and is also against the provisions of the Constitution of India. The Court said that an
irrevocable Talaq appears to be violative of the Fundamental Duties as provided in Article 51-A
(a), (e), (f) and (h) of the Constitution of India.
Shamim Ara v. State Of Uttar Pradesh405
The Supreme Court held that the three talaqs would be treated as a single talaq not a valid talaq.
In this case, Supreme Court did not debate the issue of validity of ‗talaq-e-biddat‘. In fact, the
question of validity of talaq-e-biddat‘ has never been debated before this Court. First time
validity of this kind of Talaq was discussed in case of Shayara Bano & Anr. v. UOI & Ors.
In the Shamim Ara v. State of Uttar Pradesh406 the Court was adjudicating a dispute regarding
maintenance under Section 125 of the Code of Criminal Procedure. The husband, in order to
avoid the liability of maintenance pleaded that he had divorced his wife. The liability to pay
maintenance was accepted, not because ‗talaq-e-biddat‘ – triple talaq was not valid in law, but
because the husband had not been able to establish the factum of divorce. The Supreme Court
has disagreed with the established principles on the law of written divorce among the Muslims,
and has ruled that ‗talaq‘ to be effective has to be pronounced. The Court said that plea of Talaq
taken in an unsubstantiated written statement submitted before a Court not to be accepted as a
proof of Talaq.
Shayara Bano & Anr. v. UOI & Ors. Several writ petitions were filed challenging the validity of
―Talaq-e-biddat.‖ I am going to discuss facts of one case i.e. facts of Shayara Bano case.
Facts- The petitioner-Shayara Bano, has approached this Court, for assailing the divorce
pronounced by her husband – Rizwan Ahmad on 10.10.2015, wherein he affirmed ―…in the
presence of witnesses saying that I gave ‗talak, talak, talak‘, hence like this I divorce from you
from my wife. From this date there is no relation of husband and wife. From today I am
‗haraam‘, and I have become ‗naamharram‘. In future you are free for using your life …‖. The
aforesaid divorce was pronounced before the two witnesses. The petitioner has sought a
declaration, that the ‗talaq-e-biddat‘ pronounced by her husband on 10.10.2015 be declared as
void ab initio. It is also her contention, that such a divorce which abruptly, unilaterally and
irrevocably terminates the ties of matrimony, purportedly under Section 2 of the Muslim
Personal Law (Shariat) Application Act, 1937 (hereinafter referred to as, the Shariat Act), be
declared unconstitutional. During the course of hearing, it was submitted, that the ‗talaq-e-
biddat‘ (triple talaq), pronounced by her husband is not valid, as it is not a part of ‗Shariat‘
(Muslim ‗personal law‘). It is also the petitioner‘s case, that divorce of the instant nature, cannot
be treated as ―rule of decision‖ under the Shariat Act. It was also submitted, that the practice of
‗talaq-e-biddat‘ is violative of the fundamental rights guaranteed to citizens in India, under
404
Rahmat Ullah and Khatoon Nisa v. State Of Uttar Predesh, available at: https://indiankanoon.org/doc/438981/.
Allahabad High Court (Lucknow Bench), Date of Judgment April 15, 1994.
405
AIR 2002 SC 3551
406
AIR 2002 SC 3551
381
Articles 14, 15 and 21 of the Constitution. It is also the petitioner‘s case, that the practice of
‗talaq-e-biddat‘ cannot be protected under the rights granted to religious denominations (or any
sections thereof) under Articles 25(1), 26(b) and 29 of the Constitution. It was submitted, that the
practice of ‗talaq-e-biddat‘ is denounced internationally, and further, a large number of Muslim
theocratic countries, have forbidden the practice of ‗talaq-e-biddat‘, and as such, the same cannot
be considered sacrosanctal to the tenets of the Muslim religion.
Judgment- This case was decided by Constitutional Bench. In Constitutional bench
representation of all religions were given. The case was decided by 3:2 Judges. Majority opinion
of Judges (1) Justice Joseph Kurian (Christian) (2) Justice U.U. Lalit (Hindu), (3) Justice
R.F.Nariman (Parsi) Minority Opinion - (1) CJI Khehar (Sikh) (2) Justice Abdul Nazeer
(Muslim). Supreme Court by majority opinion held that ―Triple Talaq and Muslim Personal Law
(Shariat) Application Act,1937 so far related to triple talaq, up to the that extent are
unconstitutional.‖
Grounds of Decision- There are following grounds on the basis of which Supreme Court held
that ‗Talaq-e-biddat‘ is unconstitutional-
(1) Right to conscience & profession, practice and propagation are subject to health, public
order, morality and subject to the other provisions of this part, for example gender equality,
abolition of untouchability, right to life, traffic in human being and forced labour. Triple talaq is
against gender equality enshrined under Article 14. Article 15 also prohibits discrimination on
the ground of sex. Triple talaq is arbitrary. Arbitrariness is anti-thesis of equality.407
Gandhi v. Union of India, Supreme Court held that right to life includes dignified life.
(3) Krishna Singh v. Mathura Ahir (1981). In Mathura Case, Article 25 involves a separation
(4) There is no opportunity for reconciliation or regretting.
(5) 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of
the expression ―laws in force‖ in Article 13(1) and must be struck down as being void to the
extent that it recognizes and enforces Triple Talaq.
(6) As understood by the Privy Council in Rashid Ahmad, such Triple Talaq is valid even if it is
not for any reasonable cause, which view of the law no longer holds well after Shamim Ara case.
Minority opinion was based on following grounds-
Firstly, that the practice of ‗talaq-e-biddat‘ has been in vogue since the period of Umar, which is
roughly more than 1400 years ago. Secondly, ‗talaq-e-biddat‘ though bad in theology, was
considered as ―good‖ in law. All learned counsel representing the petitioners were also
unequivocal, that ‗talaq-e-biddat‘ was accepted as a ―valid‖ practice in law. That being so, it is
407
AIR 1974 SC 555. Date of Judgment - 23 November, 1973.
382
not possible to hold, the practice to be invalid in law, merely at the asking of the petitioners, just
because it is considered bad in theology.
It was view of the Court that on this point, law must be enacted. This is a very significant
judgement for protection of interest of women. In consequences of this decision, Muslim Women
(Protection of Rights on Divorce) Bill, 2017 was passed in Lok Sabha.
VI Suggestions
There are following suggestions regarding this topic-
(1) Appeasement on the basis of religion must be thrown out. Ratio of Judgment of Mohd.
Ahmad Khan v. Shah Bano Begum was tried to over thrown by passing The Muslim Women
(Protection of Rights on Divorce) Act, 1986. Condition of Muslim women is not satisfactory in
the matter of marriage and divorce. In Case of divorce, women have limited grounds of divorce,
while husbands have unlimited grounds of divorce. It may be expected that this time no policy of
appeasement would be followed.
(2) ‗Polygamy‘ and ‗Halala‘ must also be prohibited. In several Muslim Countries ‗Polygamy‘
and Halala has been abolished. For example Yemen which is a theocratic State, which declares
Islam to be the official religion. Muslims of the Sunni sect constitute its majority. Article 67 of
Decree on Personal Status 1992, after the expiry of Iddat, a direct remarriage between them will
be lawful. No need to go for Halala.
(3) Country needs Uniform Civil Code. There is no parity among all women living in India.
Regarding marriage, Hindu men and women are prohibited for bigamy while Muslim men are
allowed to get marriage more than one while women are not allowed to get marriage more than
one. In Mohd. Ahmad Khan v. Shah Bano Begum, Supreme Court regretted that Article has
remained a ‗dead later‘ and emphasized: ―A common civil code will help the cause of national
integration by removing disparate loyalties to laws which have conflicting ideologies.‖408 In
Case of Sarla Mudgal v. Union of India,409 Supreme Court has directed the Prime Minister Mr.
Narsimha Rao to take fresh action for Uniform Civil Code.
(4) ―Ubi jus incertum ibi just nullum‖ means uncertain law is no law. On the point of irrevocable
talaq and Halala, there is no certain law.
(5) Muslim Women (Protection of Rights on Divorce) Bill, 2017 must be passed immediately.
(6) Need of awareness among society about effect of irrevocable talaq and Halala.
VII Conclusion
Since the advent of Islam, society has been totally changed. Modern era is technology era. Ethos
is decreasing day by day. Now a days, people had started to distort religious preaches to justify
their wrong. Women are not properties. They are entitled for all fundamental rights and legal
rights. From the above discussion, it becomes very clear that Laws, Courts, Governments and
Non-Government agencies have played very crucial role in ameliorating the condition of women.
But something more is needed to be done. Role of families and society cannot be ignored. It can
408
Prof. M. P. Jain, Indian Constitutional Law 1386, (Wadhwa and Company Nagpur, New Delhi, 5 th edn., 2003).
409
AIR 1995 SC 1531. This case was decided on May 10, 1995.
383
be said that by observing the above suggestions, condition of women can be improved and in real
sense, democracy can be established. Muslim Women (Protection of Rights on Marriage) Bill
2017 must come into form of Act. It is need for ameliorating the conditions of Muslim Women
so that they can enjoy their life rather than uncertainty of life which depends upon arbitrary,
capricious and whimsical decision of husband.
Topic
384
Search for transparent and accountable procedure for appointment of judges in higher
judiciary
Abstract
The members of the Constituent Assembly envisaged the judiciary as a bastion of rights and of
justice.410 9 seats out of 31seats are vacant in Supreme Court and 420 seats out of 1079 seats are
vacant in High Court.411 This is the pathetic situation. Without manpower, delivery of justice is
not possible. Fair and transparent appointment of judges is sine qua non for a democracy where
rule of law is imbedded.412 A judge appointed on the basis of nepotism, political partisan or other
considerations other than merit, he cannot protect constitutional ethos. Several post of judges are
vacant. Workload is increasing day by day. There is long tussle between executive and judiciary
on the point of appointment of judges. Initially executive was prevailing, now judiciary is
prevailing. Several cases have been decided but till now law is not certain. Credibility of Higher
Courts are day by day eroding. This paper is searching fair, transparent and accountable
procedure for appointment of justices and filling of vacancies.
I Introduction
There shall be Supreme Court of India (Union)413 and a High Court for each of the State
(Unit).414 Separation of power between the legislature, the executive and the judiciary is the basic
structure of the constitution of India.415 Appointment of upright and competent people,
particularly in the higher judiciary is a sine qua non for a judiciary enjoying the confidence of
the people.416 Wrong appointment of judges affects the image of Courts and undermine the
confidence of people.417 The Sapru Committee418 recommended that Justices of Supreme Court
must appointed by head of the State with consultation of Chief Justice of Supreme Court and
judges of High Courts must be appointed with consultation of Chief Justice of India, Chief
justice of High Court and head of Unit (State).419 Constituent Assembly‘s ad hoc Committee
suggested two alternate methods for appointment of judges.420 It was not in favour of giving
410
Granville Austin, The Indian Constitution: Cornerstone of Nation 218 (Oxford University Press, New Delhi 1 st
edn., 1972).
411
Vacancy positions of High Court and Supreme Court Judges available at: http://doj.gov.in/appointment-of-
judges/vacancy-positions (Visited on July 30, 2018).
412
Sujit Choudhry, Madhav Khosla, et.al. (eds), The Indian Constitution 349 ( Oxford University Press, New Delhi,
1st edn., 2018).
413
Constitution of India, 1950, art. 124 and Sapru Committee Report, Paragraph 259 available at:
https://archive.org/stream/saprucommittee035520mbp#page/n43/mode/2up (Visited on June 13, 2018).
414
Constitution of India, 1950, art. 214 and Sapru Committee Report, Paragraph 259 available at:
415
Kesavananda Bharati Sripadagalvaru and Ors v. State of Kerala and Anr. AIR 1973 SC 1461. This case was
decided on April 24, 1973. This case is available at https://www.sci.gov.in/jonew/judis/29981.pdf.
416
Justice Markandey Katju, Whither Indian Judiciary 59 (Bloomsbury, New Delhi, 1st edn., 2018).
417
Law Commission of India 80th Report available at: http://lawcommissionofindia.nic.in/51-100/Report80.pdf
(Visited on June 26, 2018).
418
Sapru Committee submitted its report in December 1945.
419
Sapru Committee Report, Paragraph 268 available at:
420
Ad hoc Committee Report, Para 14, p.65.
385
unfettered discretionary power in the hand of President. In the Constituent Assembly, it was the
unanimous opinion that Indian Judiciary must be competent in itself as well as independent from
executive.421 Dr. B.R. Ambedkar, Chairman of the Drafting Committee was not in favour of
giving veto power in the hand of Chief Justice of India. On May 24, 1949, he said, ―I personally
feel no doubt that the Chief Justice is a very eminent person. But after all the Chief Justice is a
man with all the failings, all the sentiments and all the prejudices which we as a common people
have; and I think, to allow the Chief Justice practically a veto upon the appointment of judges is
really to transfer the authority to the Chief Justice which we are not prepared to vest in the
President or Government of the Day. I therefore think that it is also a dangerous proposition.‖422
Judges of Supreme Court shall be appointed by the President after consultation with Judges of
Supreme Court and High Courts as the President may deem necessary. 423 Judges of High Courts
shall be appointed by the President after consultation with Chief Justice of India, Chief Justice of
High Courts and the Governor of the State.424 The Central Executive and the State Executive
provide the political input in the process of selection of the Judges of High Courts.425
Since beginning of the Constitution, Judges were being started to be appointed on several
grounds other than merit. Law Commission of India clearly mentioned that communal and
regional considerations had been prevailed in making the selection of Judges. 426 Mr.
M.C.Setalvad427 has criticized the appointment of Chief Justice of High Court428 and Chief
Justice of India429 on the basis of seniority and suggested that Judges must be appointed on the
basis of merit.
First blow to the independence of judiciary430 was appointment of Hon‘ble Justice Ajit Nath Ray
as a Chief Justice of India by superseding three senior most judges raised a new controversy. 431
Tussle started between executive and Judiciary. In Union of India v. Sankal Chand Himatlal Seth
and Anr.432 and S.P. Gupta v. Union of India and Anr.433 ‗consultation‘ was interpreted and it
421
Dr. Ambedkar, Constituent Assembly Debates (Proceedings) Volume VIII , May 24, 1949, available at;
http://164.100.47.194/Loksabha/Debates/cadebatefiles/C24051949.html ( Visited on June 12, 2018).
422
Constituent Assembly Debates 258, Volume VIII, No. 7 May 24, 1949. This is also available at
http://164.100.47.194/Loksabha/Debates/cadebatefiles/C24051949.html.
423
Constitution of India, art. 124(2).
424
Constitution of India, art. 217(1).
425
M.P.Jain, Indian Constitutional Law 400 (LexisNexis, Gurgaon (Haryana), 8th edn. 2018).
426
LCI 14th Report vol. 1 at 34. Law Commission of India 14th Report available at:
http://lawcommissionofindia.nic.in/1-50/Report14Vol1.pdf .
427
Law Commission of India 14th Report available at: http://lawcommissionofindia.nic.in/1-50/Report14Vol1.pdf.
Chairperson of First Law Commission of independent India. This Commission was established in 1955. This
Commission submitted its 14th Report on ‗Reform of Judicial Administration‖ on 16Sep.1958.
428
Law Commission of India 14th Report Page no. 106
429
430
Arvind P Datar, ―Harming the nation‖ The Indian Express, May 4,2018
431
This happened after the decision of Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461.This case was
decided by 7:6 majority. Majority Opinion was delivered by Hon‘ble JJ (1) Sikri, C.J.I. (2) Shelat (3) Hegde (4)
Grover) (5) H.R. Khanna (6) Jagmohan Reddy (7) Mukherjee. According to majority opinion, the Parliament can
amend any part of the Constitution subject to the basic structure of the Constitution. It was directly restriction on
the power of Parliament & indirectly on executive.
Minority Opinion was delivered by Hon‘ble JJ (1) A. N. Ray (2) Palekar (3) Beg (4) Mathew (5) Dwivedi (6)
Chandrachud. According to minority opinion, the power to amend is wide and unlimited. There is no distinction
between essential and unessential feature. Parliament can amend any part of the Constitution by using power given
under article 368. It was suitable for executive.
432
AIR 1977 SC 2328. This case was decided by Constitution bench on September 19,1977
386
was said that consultation does not mean concurrence and President is not bound by the opinion
of Chief Justice of India and other consulted judges. Justice P. N. Bhagwati suggested for
appointment of a Judicial Committee.434 Executive was in controlling power.435 Law
Commission of India in its 121st Report suggested for National Judicial Service Commission.436
In the case of Supreme Court Advocates on Records Association v. Union of India437 bench of
nine Judges evolved collegium system for appointment of judges in higher judiciary. It was
explained and clarified in Special Reference No. 1 of 1998.438 Through 99th Constitutional
Amendment & National Judicial Appointment Commission Act, 2014 collegium system was
substituted by National Judicial Appointment Commission. In the case of Supreme Court
Advocates on Records Association v. Union of India439, this Amendment and the Act were
declared unconstitutional and void and collegium system was again revived. Independence of
Judiciary was declared basic structure of the Constitution.440
II Constitution of Higher Judiciary
Justice System in India is pyramidic in structure.441 Here Judiciary means Supreme Court and
High Courts.
Supreme Court – Before establishment of Supreme Court, there was Federal Court established
under Government of India Act, 1935.442 The Privy Council was abolished by the Abolition of
Privy Council jurisdiction Act, 1949 and pending appeal before Privy Council before October
10, 1949 were transferred to Federal Court and federal Court became highest Court in India.
Supreme Court of India came into existence on January 26, 1950. 443 It was inaugurated on
January 28, 1950.444 According to Article 124, there shall be Supreme Court of India consisting
of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more
than thirty445 other Judges. Total original members were eight i.e., Chief Justice of India and
433
1981 (Supp)1 SCC 87. See also AIR 1982 SC 149. This case is known as First Judges case.
434
S.P.Gupta v. UOI, AIR 1982 SC 149. This case was decided on Dec.30, 1981.
435
Shadan Perween and Divya Jain, Courts of India: Past to Present 265 (Additional Director General , Publication
Division, Ministry of Information and Broadcasting, Government of India, New Delhi, 1 st edn., 2016).
436
Law Commission of India 121st Report Para 7.7. P.41, July 1987 available at:
http://lawcommissionofindia.nic.in/101-169/Report121.pdf
437
(1993) 4 SCC 441; AIR 1994 SC 268. This case was decided on October 6, 1993. This is known as Second judges
Case.
438
(1998) 7 SCC 739, AIR 1999 SC 1. This is known as Third judges Case.
439
(2016) 5 SCC 1. This case was decided on Oct. 16, 2015. This case is available at:
https://www.sci.gov.in/jonew/judis/43070.pdf
440
(2016) 5 SCC 1. This case was decided on Oct. 16, 2015. This case is available at:
https://www.sci.gov.in/jonew/judis/43070.pdf
441
442
Government of India Act, 1935 available at:
http://www.legislation.gov.uk/ukpga/1935/2/pdfs/ukpga_19350002_en.pdf .
section 200 -There shall be a Federal Court consisting of a Chief Justice of India and such number of other judges as
His Majesty may deem necessary, but unless and until an address has been presented by the Federal Legislature to
the Governor-General for submission to His Majesty praying for an increase in the number of judges, the number of
puisne judges shall not exceed six.
443
Available at: https://sci.gov.in/history
444
Available at: https://sci.gov.in/history
445
Number of judges were increased from 25 to 30 by Supreme Court (Number of Judges) Amendment Act, 2008.
387
seven other judges. Seven seats out of 31seats are vacant in Supreme Court.446 Near about one-
fourth seats are vacant in Supreme Court. Near about 23% seats are vacant. Work load is
increasing day by day and vacant of so many post is making worst position.
High Courts – In modern India, Indian High Courts Act, 1861 was passed by British Parliament
whereby Crown was authorised to establish High Courts in Indian colony. These were highest
appellate court in each province and appeal from these courts lies to Judicial Committee of Privy
Council447 in England.448
Sapru Committee suggested for High Court for each Unit.449 According to Article 214, there
shall be a High Court for each State. The Constitution (Seventh Amendment) Act, 1956
substituted several articles and it was passed for implementation of State Reorganization
Scheme. 450 By this Amendment Parliament was authorized to establish a common High
Courts.451 By using this power, Parliament has established common High Courts for several
States. For the example Gauhati High Court,452 Bombay High Court,453 Hyderabad High
Court,454 Punjab and Haryana High Court455 etc. Now, there are 24 High Courts and total post of
judges is 1079.456 420 seats out of 1079 seats are vacant in High Courts.457 Near about 39% seats
are vacant.
III Qualification
Qualifications of judges of Federal Court and Supreme Court are pari materia.458 Only
difference is that there was no provision for appointment of Judges of ‗distinguished jurist‘ in
446
Vacancy positions of Supreme Court Judges available at: http://doj.gov.in/appointment-of-judges/vacancy-
positions (Visited on June 15, 2018).
447
It was established on May 1, 1708.Main function of this was to give advice to the crown. One branch i.e. Judicial
Committee of Privy Council was hearing appeal from Courts situated in colonial countries.
448
H.M. Seervai, Constitutional Law in India: A Critical Commentary 2617 (Universal Law Publishing Co. Pvt.
Ltd, Delhi, 4th edn., vol. 3, 1996).
449
Sapru Committee Report, Paragraph 259 available at:
450
The Constitution (Seventh Amendment) Act, 1956 available at: https://www.india.gov.in/my-
government/constitution-india/amendments/constitution-india-seventh-amendment-act-1956 (Visited on June 16,
2018).
451
Article 231- Parliament may by law establish a common High Court for two or more States or for two or more
States and a Union territory.
452
Gauhati High Court for Assam, Nagaland, Mizoram and Arunachal Pradesh. This information is available at:
http://ghconline.gov.in/ (Visited June 16, 2018).
453
After the enactment of Goa, Daman & Re-organization Act, 1987 by the Parliament, the High Court of Bombay
became the common High Court for the states of Maharashtra and Goa and the Union territories of Dadra & Nagar
Haveli and Daman & Diu w.e.f. May 30, 1987. This information is available at:
http://www.bombayhighcourt.nic.in/history.php# .
454
Hyderabad High Court is a common High for Telangana and Andhra Pradesh. This information is available at:
http://hc.tap.nic.in/ .
455
Punjab and Haryana High Court has common jurisdiction for Punjab, Haryana and Chandigarh.
456
Vacancy positions of High Courts and Supreme Court Judges available at: http://doj.gov.in/appointment-of-
judges/vacancy-positions (Visited on June 15, 2018).
457
Vacancy positions of High Courts and Supreme Court Judges available at: http://doj.gov.in/appointment-of-
judges/vacancy-positions (Visited on June 15, 2018).
458
Government of India Act, 1935, Section 200 (3) A person shall not be qualified for appointment as a judge of the
Federal Court unless he- (a) has been for at least five years a judge of a High Court in British India or in a Federated
State ; or (b) is a barrister of England or Northern Ireland of at least ten years standing, or a member of the Faculty
388
Federal Court. Researcher had decided to discuss qualification of Judges of Supreme Court and
High Courts separately.
Supreme Court- Only citizen of India can be judge of Supreme Court. 459 Other qualifications
can be classified into three categories – (1) he comes from ‗Bench‘ (Judicial qualification), or (2)
he comes from ‗Bar‘ (Advocate) or (3) he is distinguished jurist.
(1) Judicial qualification – An Indian citizen who has been for at least five years a Judge of a
High Court or of two or more such Courts in succession may be appointed as a judge of Supreme
Court. There are several types of judges in High Courts namely, permanent judge, 460 additional
judge,461 acting judge462 and retired judge463 who works in High Court.
(2) Advocate – An Indian citizen who is an advocate of a High Court (or High Courts) for ten
years is qualified to be appointed as a Judge of Supreme Court. 464 Justice S.M. Sikri was the first
person who was appointed from Bar in 1963.465 He was CJI at the time of decision of
Fundamental Rights case.466 Justice Kuldip Singh was second judge who was appointed from
‗Bar‘ (1988). He is well known as ‗Green Judge‘. Santosh Hegde was the third judge who was
appointed from Bar (1999-2005). Shri Justice Rohinton Fali Nariman is the fourth judge from the
Bar appointed on July 7, 2014.467 Justice Uday Umesh Lalit (2014) Justice Lavu Nageswara Rao
(2016) and Justice Ms. Indu Malhotra (2018) are other judges appointed from Bar. In this way, in
the history of Supreme Court total seven advocate have been appointed from ‗Bar‘. Justice Ms.
Indu Malhotra (April 27, 2018) is the first women lawyer who has been appointed from ‗Bar‘.
(3) Distinguished Jurist – Distinguished jurist was not qualification to be judge of Federal
Court.468 In the Constituent Assembly Shri H.V. Kamath suggested for introduction of
‗distinguished jurist‘ also as a qualification. It was argued that merely choosing judges from
judges and advocate would restrict the selection of judges to only two categories and nation
cannot take service of distinguished jurist. He also quoted that his suggestion is incidentally
same to qualification of judges of International Court of Justice at Hague.469 Shri M.
Ananthasayanam Ayyangar argued in favour of inclusion of ‗distinguished jurist‘. He said,
―Then, Sir, I agree with my honourable Friend, Mr. Kamath, when he says that the choice
of Supreme Court judges ought not to be limited to judges already in service and of ten years‘
standing. He has moved that it ought to be open to the President, if he so chooses, in the interest
of proper administration of justice, to include a distinguished jurist. His amendment does not
of Advocates in Scotland of at least ten years standing ; or (c) has been for at least ten years a pleader of a High
Court in British India or in a Federated State or of two or more such Courts in succession .
459
Constitution of India art. 124 (3).
460
Constitution of India art. 217.
461
462
463
Constitution of India art. 224A.
464
Constitution of India art. 124 (3) (b).
465
J. Venkatesan, ―Two from the Bench and two from the Bar‖, The Hindu, May 14, 2014.
466
467
Available at: http://doj.gov.in/sites/default/files/Judges-Handbook%20%281%29_1.pdf .
468
Government of India Act, 1934, sec.200.
469
Shri H.V. Kamath, Constituent Assembly Debates (Proceedings) Volume VIII, May 24, 1949, available at;
http://164.100.47.194/Loksabha/Debates/cadebatefiles/C24051949.html (Visited on June 12, 2018).
389
make it obligatory upon the President to choose only a jurist only among jurists. In various cases
a Supreme Court has to deal with constitutional issues. A practicing lawyer barely comes across
constitutional problems. A person may enter the profession of Law straightaway. He might be a
member of a Law College or be a Dean of the Faculty of Law in a University. There are many
eminent persons, there are many writers, there are jurists of great eminence. Why should it not be
made possible for the President to appoint a jurist of distinction, if it is necessary? As a matter of
fact, I would advise that out of the seven judges, one of them must be a jurist of great reputation.
I am told, Sir, by my honourable Friend, Shri Alladi, whom I consulted, that some years ago
President Roosevelt in the U.S.A. appointed one Philip Frankfurter. He was a Professor in the
Harward University. That was a novel experiment that he made. Before that, barristers were
being chosen and also persons from the judiciary. This experiment has proved enormously
successful. He is considered to be one of the foremost judges, one of the most eminent judges in
the U.S.A. Therefore, Sir, I am in agreement with the proposal to add a jurist also, a
distinguished jurist, in the categories for the choice of a judge of the Supreme Court‖.470
Distinguished jurist may be any person. It only demands knowledge rather than degree of LL.B.
or LL.M. Purpose of introduction of this qualification was to take service of those person who
have extraordinary knowledge of law. Knowledge never depends only on formal education. In
ancient period there were several distinguished jurist who did not get LL.B. or LL.M. degree. For
example Socrates, Manu and Yajnavalkya etc.
This provision has been inspired by the American Constitution where distinguished law teachers
have often been appointed to the Supreme Court.471
Finally this qualification was accepted.472 But in India, even a single person had not been
appointed on the basis of ‗distinguished jurist‘.
High Court –
According to Article 217 (2), a person shall not be qualified for appointment as a Judge of a
High Court unless he is a citizen of India and— (a) has for at least ten years held a judicial office
in the territory of India; or (b) has for at least ten years been an advocate of a High Court or of
two or more such Courts in succession. Here, there is no any scope for appointment of
distinguished person.
In the case of S.D. Joshi & Ors. v. High Court of Judicature at Bombay473 Supreme Court
thoroughly discussed qualification of Judges of High Court.
IV Appointment of Judges during 1950 – 1973
Till the resignation of three judges of Supreme Court for opposing the appointment of Justice
Ajit Nath Ray as Chief Justice of India, there was no big controversy. In the initial period
executive was very strong. Judges were being appointed by President and consultative process
with judiciary was nominal. There was no crucial role of judiciary in appointment of judges. In
470
Shri M. Ananthasayanam Ayyangar, Constituent Assembly Debates (Proceedings) Volume VIII , May 24, 1949,
available at; http://164.100.47.194/Loksabha/Debates/cadebatefiles/C24051949.html ( Visited on June 12, 2018).
471
M.P. Jain, Indian Constitutional Law 201 (LexisNexis, Gurgaon, Haryana, 8th edn. 2018).
472
Constitution of India art. 124 (3) (c).
473
Available at: https://indiankanoon.org/doc/1300797/, (Visited on June 17, 2018). This case has been decided by
Supreme Court on November 11, 2010.
390
this period executive had started to search committed judges. But there was not harsh opposition
on behalf of any shareholders.
At the time of inauguration of sitting of Supreme Court474 first Chief Justice of India Justice
Harilal Jekisundas Kania discussed about standard to be observed at the time of appointment of
judges. He said, ―….For some years before 1947, there was a policy to appoint members of
different communities, in some proportion in the services including the High Courts. In theory, it
appears to be now accepted that appointments will be only on merits. The policy, however does
not appear to have been completely abandoned. We hope that political considerations will not
influence the appointments to High Courts. It is necessary that for the High Courts, merit alone
should be the basis for the selection, if the High Courts have to remain strong and independent
and enjoy the confidence of the people‖475
Law Commission of India clearly mentioned that communal and regional considerations had
been prevailed in making the selection of Judges.476 Mr. M.C.Setalvad477 has criticized the
appointment of Chief Justice of High Court478 and Chief Justice of India479 on the basis of
seniority and suggested that Judges must be appointed on the basis of merit.
According to Article 124, Judges of Supreme Court are appointed by President by warrant under
his hand and seal after consultation with such of the judges of the Supreme Court and of the High
Courts in the States as the President deem necessary for the purpose. According to Article 217,
Judges of High Court shall be appointed by the President after consultation with Chief Justice of
India, Chief Justice of High Court and Governor of the State. In case of Ram Jawaya Kapur v.
State of Punjab,480 Supreme Court said that after reading Articles 53 and 74, it becomes clear
that the President is a formal or constitutional head while real head is Council of Ministers. We
have accepted Parliamentary form of Government. In Samsher Singh v. State of Punjab,481
Supreme Court said that wherever the Constitution requires satisfaction of President or Governor
as the case be for the example in Articles 123,213, 311(2) proviso (c), 317, 352(1), 356 and 360,
in those cases, it is not the personal satisfaction of the President or Governor. It is the satisfaction
of the Council of Ministers in constitutional sense under the cabinet system of Government. So
from these cases it becomes very clear that actual power is in the hand of the Council of
Ministers rather than President or Governor.
Here in case of appointment of Judges of High Courts practical problem arises when different
parties are ruling in Center and State. This problem has been very nicely illustrated by former
Justice Markandey Katju which are following -
474
January 28,1950.
475
This statement was cited on page number 34 of 14 th Report of Law Commission of India.
476
LCI 14th Report vol. 1 at 34. Law Commission of India 14th Report available at:
http://lawcommissionofindia.nic.in/1-50/Report14Vol1.pdf .
477
Law Commission of India 14th Report available at: http://lawcommissionofindia.nic.in/1-
50/Report14Vol1.pdf.Chairperson of First Law Commission of independent India. This Commission was
established in 1955. This Commission submitted its 14 th Report on ‗Reform of Judicial Administration‖ on
16Sep.1958.
478
479
480
AIR 1955 SC 549
481
AIR 1974 SC 2129
391
―For example, party ‗A‘ may be in power in a State and party ‗B‘ in the Centre. The
recommendation of the Chief Justice of the High Court will go first to the Chief Minister who is
of party ‗A‘, as mentioned above. The Chief Minister would want people who are close to his or
her political party. In the process, if they are not in approval of the recommended names, the
state government may block the list recommended by CJ of HC (e.g. by just sitting on it, without
approving or disapproving it).
However, if he or she approves the list and sends it to the Center, the Central Government may
not be happy with the list, as it does not contain names of those lawyers who are close to party
‗B‘, which is in power in the Center. Therefore, the Central Government may also sit tight on the
list. This is the real reason why the vacancies of the High Court judges are not filled up.‖482
In initial period, at least months before the retirement of High Court Judge, recommended the
name of the successor. It was sufficient time for making inquiries. Justice M.C. Chagla took the
oath on the same day after his successor retired. He has mentioned these facts in his
autobiography ‗Roses in December.
Article 124 does not mention that only judge of the Supreme Court would be Chief Justice of
India. Outstanding Chief Justice of Bombay High Court was sought to be directly appointed as
Chief Justice of India, the proposal was received with a vehement opposition by the then
Supreme Court Judges. They threatened to resign en block and hence the move could not
fructify.483
V Appointment of Judges during 1973 – 1993
This is the turmoil period in the history of independence of judiciary. This period starts from the
decision of Kesavananda Bharati Sripadagalvaru and Ors v. State of Kerala and Anr.484 which
is known as fundamental rights case was decided on April 24,1973. In this case doctrine of
‗Basic Structure‘ was evolved and indirectly amending power of Parliament was curtailed down.
Mrs. Indira Gandhi made this decision as a matter of her prestige. She decided to take revenge
from those judges which had decided against the Government.
So first time, rule of seniority in case of appointment of CJI was broken. Hon‘ble Justice Sarv
Mittra Sikri was the Chief Justice of India at the time of decision of Fundamental Rights case.485
He retired on April 25, 1973. Hon‘ble Justice Ajit Nath Ray was appointed by superseding three
most senior judges namely Hon‘ble JJ Shelet, Hegde & Grover. Hon‘ble Justice A.N. Ray took
oath as CJI on April 26, 1973.486 Hon‘ble Mr. Justice J.M. Shelat,487 Hon‘ble Mr. Justice K.S.
Hegde488 and Hon‘ble Mr. Justice A.N. Grover489 resigned to protest for appointment of Hon‘ble
Justice A.N. Ray as a CJI who was junior from all these three judges. Hon‘ble Justice A.N. Ray
has decided the fundamental right case in favour of Government. Seniority was first time
482
Justice Markandey Katju, Whither Indian Judiciary 61(Bloomsbury, New Delhi, 1st edn., 2018).
483
484
AIR 1973 SC 1461.
485
486
Available at: https://www.sci.gov.in/former-chief-justices
487
Hon‘ble Mr. Justice J.M. Shelat resigned on April 30, 1973.
488
Hon‘ble Mr. Justice K.S. Hegde resigned on April 30, 1973.
489
Hon‘ble Mr. Justice A.N. Grover resigned on May 31, 1973.
392
overruled. All the three judges had delivered judgement against Government. Term of Hon‘ble
Justice Ajit Nath Ray was April 26, 1973- January 27, 1977.
In the case of State of Uttar Pradesh v. Raj Narain,490 Hon‘ble Justice Jagmohan Lal Sinha
convicted the then Prime Minister Mrs. Indira Gandhi for electoral malpractices and debarred her
from holding any elected post on June12, 1975. This led to the imposition of emergency in India
on June 25, 1975. In case of Indira Nehru Gandhi v. Raj Narayan,491 Supreme Court by
4:1(Minority opinion of H.R. Khanna) majority upheld the validity of election of Mrs. Indira
Gandhi but held that Article 329A (4) is unconstitutional which was excluding the power of
judicial review. The Court said that democracy which implies free and fair elections, rule of law
and Judicial review is basic structure of the Constitution. In this case Court made balance
between interest of Mrs. Indira Gandhi and public. It did not totally surrender in favour of Mrs.
Indira Gandhi.
Hon‘ble Justice Mirza Hameedullah Beg (28 January 1977-21 Feb 1978) was appointed by
superseding Justice H.R. Khanna on 28 January 1977. Justice H.R. Khanna had given judgement
against Government in cases of Kesavananda Bharati v. State of Kerala492 & A.D.M.Jabalpur v.
Shivakant Shukla.493 This was emergency periods (25 June 1975 – 21 March 1977) . During the
emergency period Hon‘ble Fakhruddin Ali Ahemad was president. It was the last time when
seniority rule was overruled.494 After Justice M.H.Beg, Justice Yeshwant Vishnu Chandrachud
(1977-1985) was appointed who was most senior judge. In case of A. D. M. Jabalpur v. S.
Shukla,495 Justice Yeshwant Vishnu Chandrachud held that during emergency there was no
fundamental rights and this case was in favour of Government.
After decision of Hon‘ble Justice Jagmohan Lal Sinha of Allahabad High Court against Mrs.
Indira Gandhi, Government decided to search ‗committed judiciary‘. This decision changed the
appointment process regarding judges of High Court. Before this decision initiation of the
recommendation for the appointment in the High Court was done by the Chief Justice of the
High Courts. But after this decision Central Government started to send names for appointment
to the Chief Justice of High Courts. Indirectly message was sent that in case of acceptance of all
names send by Centre Government, Chief Justice of High Court would be rewarded and he may
be elevated to Supreme Court.496
Chief Justice G.P.Singh had to pay price of his morality and integrity. He was Chief Justice of
Madhya Pradesh since July 1978 and retired in 1984. In 1980 Central Government sent a list of
ten lawyers to Chief Justice G.P.Singh and asked him to recommend those names for being
490
Date of Judgment- 12 June, 1975, Allahabad High Court ,
491
Date of Judgement 07/11/1975, Supreme Court. There are two cases of the same name decided in 1975. Another
case is Indira Nehru Gandhi vs. Raj Narain which was decided by Justice Krishna Aiyer on 24/06/1975.It was
decided by single bench.
492
AIR 1973 SC 1461.
493
AIR 1976 SC 1207.
494
Two times in appointment of CJI seniority rule was overruled. First time in case of appointment of Hon‘ble
Justice Ajit Nath Ray as CJI (26 April 1973 – 28 Jan. 1977)by superseding three senior most judges and second
time in case of appointment of Hon‘ble Justice M.H.Beg by superseding Hon‘ble Justice H.R. Khanna, senior
most judge of Supreme Court in 29 January1977.
495
AIR 1976 SC 1207.
496
393
appointed as judges of High Court of Madhya Pradesh. After scrutiny, he did not find even a
single suitable name and sent list back. He was never elevated to Supreme Court.497
S.H. Sheth v. Union of India498 which was substituted by Union of India v. Sankal Chand
Himatlal Sheth and Another499 in Supreme Court is not directly related to appointment of judges
in higher judiciary. But ‗consultation‘ word was interpreted which has been used under Articles
124(2), 217(1) & 222(1). In this case Government tried to thread for bad consequences in case of
judgment against Government. This was the period of emergency.
Facts – During the ‗Emergency‘ a list of 56 judges to be transferred without their consent had
been prepared, but in the first instance, 16 judges had been transferred, and the names of other
judges on the list were deliberately leaked in order to shake the nerves of the High Court
Judiciary.500
Justice Sankal Chand Seth challenged his transfer from Gujarat High Court to Andhra Pradesh
High Court. Constitutional bench of Supreme Court held that ‗Consultation‘ means full and
effective that is active participation of all but it does not mean concurrence. It is open to the
President to arrive at a proper decision of the question. It means President is not bound by the
opinion of Judges of the Court. In this way supremacy of executive was established and role of
judiciary in cases of appointment of judges was mitigated.
After emergency Janata Party came into power in 1977 and it was required from Law
Commission of India to submit report on the methods of appointment of judges of Supreme
Court and High Court. Hon‘ble Justice Hans Raj Khanna was appointed as its Chairperson. 8th
Law Commission submitted its 80th Report ―On the Methods of Appointment of Judges‖
1979.501 This Committee introduced the Collegium System. First time, it was recommended that
Chief Justice must consult with his two Colleagues.502
Congress Party again returned into power in 1980. On March 18, 1981 Union Law Minister
issued a circular letter. By this letter it was demanded from Additional Judges for appointment as
a permanent judge to give name of three High Courts in order of preference. Three preference of
High Courts were also sought from persons who have already been or may in the future be
proposed for initial appointment. It was challenged by several writ petitions in several High
Courts. With the help of Article 139 matter was referred to Supreme Court. In the case of S.P.
Gupta v. Union of India and Anr.503 meaning of consultation was again disputed. Supreme Court
accepted the meaning of consultation which was given in Sankal Chand Seth Case.504 Supreme
Court said that there is only one ground i.e. mala fide & irrelevant consideration, when decision
497
498
(1976)17 G.L.R. 1017.
499
AIR 1977 SC 2328. This case was decided on September 19, 1977. http://supremecourtofindia.nic.in/judgments
visited on 16/01/2018.
500
501
Report of Law Commission of India is available on http://lawcommissionofindia.nic.in/51-100/Report80.pdf
(Visited on June 26, 2018).
502
503
AIR 1982 SC 149. This case was decided on December 30, 1981. Available at ;
http://supremecourtofindia.nic.in/judgments (Visited on June 26, 2018)
504
AIR 1977 SC 2328.
394
of government can be challenged. Justice P. N. Bhagwati suggested for appointment of Judicial

Committee. Supremacy of Executive was again established.
Eminent Professor Upendra Baxi suggested for establishment of collegium system. 505 Law
Commission of India in its 121st Report in 1987 criticized the political interference in
appointment of Judges of Supreme Court and High Court. It was recommended for setting of
National Judicial Service Commission for appointment of judges.506 It was suggested so that
active participation of all shareholders can be insured. Function of this Commission should be
selection and recommendation of person for judge of Supreme Court and High Court.507
This system was continuing up to the decision of Supreme Court Advocates on Records
Association v. Union of India.508 In this case concept of ‗Collegium System‘ was evolved by
Justice J. S. Verma & supremacy of judiciary was established.
VI Appointment of Judges during 1993- 2014
Under this part Supreme Court Advocates on Records Association v. Union of India509(Judges
Transfer Second case) and Special Reference No. 1 of 1998510( Judges Transfer Third case) is
going to be discussed.
(1) Judges Transfer Second case -
Ratio of S.P .Gupta511 case was challenged in Subhash Sharma and Others v. Union of India.512
In this case Supreme Court suggested for reconsideration by a larger Bench of this aspect of the
process of appointment of judges.513 In consequence of observation of this case, a Bench of nine
judges was constituted to reconsider the manner of appointment which is known as Supreme
Court Advocates on Records Association v. Union of India.514 Majority opinion was delivered by
Hon‘ble Justice J. S. Verma.
In this case first time collegium system was introduced and supremacy of executive was
established. In this case following guidelines were established for appointment of judges of
Supreme Court and High Court –
(1) Consultation – Consultation means concurrence which is equated to ‗Primacy‘.
(2) Supremacy of Judiciary – It was propounded that appointment of judges should be result
of collective consultation. It means decision must be taken after consultation of each
shareholder. In case of conflict of opinion between judiciary and executive, opinion of
505
Upendra Baxi, ―Collegium for Judicial Post: An Investment in Democracy‖, The Times of India, August 5, 1986.
506
http://lawcommissionofindia.nic.in/101-169/Report121.pdf (Visited on July 3,2018).
507
Law Commission of India 121st Report Para 7.13, P.41, July 1987 available at:
http://lawcommissionofindia.nic.in/101-169/Report121.pdf (Visited on July 3,2018)
508
AIR 1994 SC 268. This case was decided on October 6, 1993 (Judges Transfer Case second case).
509
AIR 1994 SC 268.
510
AIR 1999 SC 1.This is known as Third judges Case.
511
AIR 1982 SC 149.
511
AIR 1991 SC 631. This 9.
512
AIR 1991 SC 631. This case was decided on October 26, 1990.
513
514
AIR 1994 SC 268.
395
judiciary must be preferred. No appointment under Article 124(2) and Article 217(1) is
possible without concurrence opinion of Chief Justice of India.
(3) S.P.Gupta Case – S.P.Gupta case515 was overruled on the ground that law laid down in this
case was wrong. In this case primacy was given to the Central Government in the matter of
appointment of judges of High Court and Supreme Court.
(4) Appointment of Supreme Court Judges and Consultation with Collegium – Under Article
124(2) it has been mentioned that in case of appointment of judges of Supreme Court other
than CJI, Chief Justice of India shall always been consulted. He is consulted being a head
of Supreme Court. His opinion should be formed with a body consist of the Chief Justice of
India, two senior-most Judges of the Supreme Court and the senior Supreme Court Judge
who comes from the State. Individual opinion of CJI has no relevancy.
(5) Appointment of High Court Judges and collegium at two levels - The Process of
appointment under Article 217(1) is to begin with the recommendation of the Chief Justice
of the High Court. He must ascertain the views of the two senior-most Judges of the High
Court and incorporate the same in his recommendation. The Chief Justice of India while
examining the recommendation must take into account the views of two senior-most
Judges of the Supreme Court and also the opinion of the senior Judge conversant with the
affairs of the concerned High Court.
(6) Appointment of Chief Justice of India – Chief Justice of India shall be appointed on the
basis of merit. Seniority shall not be alone ground.
Elevation of Justice Madhan Mohan Punchhi as a Chief Justice of India had become very
controversial. Initially then Chief Justice of India Justice J.S.Verma was not in favour of
elevation of Justice Punchhi. Stalwart Lawyer Mr. Shanti Bhushan and Mr. Ram
Jethmalani also opposed on the basis corruption charges. Prime Minister Mr. I.K.Gujral
was also in dilemma. This controversy has been discussed thoroughly by Mr. I.K.Gujral in
his book ‗Matters of Discretion: An Autobiography‘.516 Although Justice M.M.Punchhi
was senior most Justice after CJI Justice J.S. Verma.
(7) Initiation of the proposal for appointment of High Court & Supreme Court Judges-
Initiation of the proposal for appointment of Judges of Supreme Court and High Court
must be initiated by the Chief Justice of India and concerned Chief Justice of High Court
respectively.
(8) Appointment after Reiteration – Executive has option either to appoint recommendee of
the judiciary or send back to Judiciary for reconsideration of name of recommendee. But
same name is reiterated after due consideration by the Chief Justice of India with the
unanimous agreement of other judicial consultees then the Executive is bound by the
recommendation.517 Collegium has reiterated the name of Justice K.M.Joseph on July 16,
2018.518
H. M. Seervai has criticized this judgment and said that it was rewriting of the Constitution
which is beyond the power of any court.519
515
AIR 1982 SC 14.
516
Mr. I.K.Gujral, „Matters of Discretion: An Autobiography‟ 478-479 (Penguin Books/Hay House,India, 2011).
517
AIR 1994 SC 268.
518
Reconsideration of the recommendation for elevation of Mr. Justice K.M. Joseph as Judge of the Supreme Court,
available at: https://www.supremecourt.gov.in/pdf/collegium/16072018_reconsideration_KMJoseph.pdf
519
396
Executive is adopting another method. Executive is adopting several other methods. For the
example, inordinate delay or not accepting recommendation of collegium. It is try to punish
judges by choosing some name and rejecting another name. At the time of making
recommendation seniority is settled. For example collegium recommended two names for
elevation to Supreme Court on January 10, 2018. First name was Mr. Justice K.M. Joseph
and second name was Ms. Indu Malhotra, Senior Advocate.520 According to this it was
expected by the collegium that Mr. K.M Joseph would be senior and in future he would be
given preference over Ms. Indu Malhotra, for Chief Justice of India. But Executive
accepted only one name and rejected another name. It was informed through later dated on
April 26 and 30,2018. It was inordinate delay. Collegium met on May 11 ,2018 it was
decided by collegium to reiterate the name of Justice K.M. Joseph. 521 Collegium has
reiterated the name of Justice K.M.Joseph on July 16, 2018.522
Law says that in case of reiteration of same name Executive will be bound to accept the
name of that person. In case of reiteration the name of Justice two circumstances would be
happened. First is that in case of reiteration Executive will accept the name and Justice
Joseph would be elevated to Supreme Court. But even in case of elevation he would be
junior of Ms. Indu Malhotra. Second is that Executive shall sit tight on the name of Justice
Joseph. It may sit for a long time and he can never be elevated to Supreme Court. There is
no time limit for acceptance of the name for elevation to Supreme Court. There is another
method also to submerse the collegium system. Executive is neither accepting nor rejecting
the name send by the collegium system. For example, for the Calcutta high court, the
name of Mohammed Nizamuddin was initially recommended by Supreme Court
collegium, which was returned by the Central government on November 11, 2016. The
collegium again recommended the name on November 15, 2016 and that was returned
again on March 1, 2017. The collegium reiterated the name once again on April 7, 2017
and the name is still pending with the central government. 523 More than hundred names
are waiting for clearance from Government and Supreme Court.
There should be time limit for decision on collegium recommendation.
(2) Judges Transfer Third case - Chief Justice of India M.M. Punchhi recommended some
names for appointment of judges without proper consultation with collegium. Then
President Mr. K.R. Narayanan referred some questions under Article 143 for advisory
opinion of Supreme Court. By these questions it was sought clarification of judgment of
Judges Transfer Second Case.524 Supreme Court answered the questions in Special
Reference No.1 OF 1998.525 Main question was whether plurality of opinion of judges or
sole opinion of Chief Justice of India will constitute ‗consultation‘ under Articles
124,217and 222. Another important question was whether article 124(2) as interpreted in
the said judgment requires the Chief Justice of India to consult only the two senior most
520
Available at : https://www.sci.gov.in/pdf/collegium/j_apptt_supreme_court.pdf (Visited on July 2, 2018).
521
Available at : https://www.sci.gov.in/pdf/collegium/2018-Reconsidered-11thMay.pdf (Visited on July 2, 2018).
522
Reconsideration of the recommendation for elevation of Mr. Justice K.M. Joseph as Judge of the Supreme Court,
available at: https://www.supremecourt.gov.in/pdf/collegium/16072018_reconsideration_KMJoseph.pdf
523
Available at ; https://thewire.in/law/how-many-judicial-appointments-is-the-centre-sitting-on (Visited on July 2,
2018).
524
AIR 1994 SC 268.
525
Available at: https://www.sci.gov.in/jonew/judis/12948.pdf (Visited on July 5, 2018). This case was decided on
October 28, 1998. See also AIR 1999 SC 1.
397
Judges or whether there should be wider consultation according to past practice.

Summary of these answers are following-
(i) Plurality of Opinion – Supreme Court clarified that sole opinion of Chief Justice of
India does not constitute consultation under Articles 124,217 and 222. The expression
‗consultation with the Chief justice of India‘ requires consultation with a plurality of
Judges in the formation of the opinion of the Chief Justice of India.
(ii) Number of Collegium – In case of appointment of Judges of Supreme Court, Chief
Justice of India must make recommendation after consultation with four senior most
puisne Judges of Supreme Court.
In case of appointment of Judges of High Court, Chief Justice of India must make
recommendation after consultation with two senior most puisne Judges of Supreme
Court.
(iii) Reiteration of Recommendee – In case of Rejection of recommendation by
Government and Chief Justice of India want reiterate the name of recommendee, this
decision must be taken by plurality of Judges.
(iv) A Judge Conversant with High Court - All judges should be treated conversant with
High Court whether that Court was his parent High Court or he was transferred to that
High court.
(v) Writing – Opinion of all judges should be in writing.
(vi) No binding Recommendation - If Chief Justice of India had recommended either for
appointment or elevation as judge to Government of India without complying the
consultation process, Government of India is not bound by that recommendation.
This collegium system continued unless National Judicial Appointment Commission
Act, 2014 was enacted.
VII Appointment of Judges during 2014-2015 (NJAC)

Justice P. N. Bhagwati suggested for appointment of a Judicial Committee.526 Executive was in
controlling power.527 Law Commission of India in its 121st Report suggested for National
Judicial Service Commission.528 This Commission would be consisted of eleven members. Chief
Justice of India would be Chairperson of this Commission. Chief Justice of India, three senior
most judges of Supreme Court, three Chief Justice of High Courts, Minister of Law and Justice,
Government of India, Attorney General of India, Leader of Bar and an outstanding law academic
would be Members of this Commission.529 Representation of Judiciary, Executive, Bar and Legal
Academics were given.
526
S.P.Gupta v. UOI, AIR 1982 SC 149. This case was decided on Dec.30, 1981.
527
Shadan Perween and Divya Jain, Courts of India: Past to Present 265 (Additional Director General , Publication
Division, Ministry of Information and Broadcasting, Government of India, New Delhi, 1 st edn., 2016).
528
http://lawcommissionofindia.nic.in/101-169/Report121.pdf (Visited on July 12, 2018).
529
http://lawcommissionofindia.nic.in/101-169/Report121.pdf (Visited on July 12, 2018).
398
Report of the National Commission to Review the Working of the Constitution530 suggested for
establishment of National Judicial Commission531 under the Constitution of India. National
Judicial Commission should be consisted of Chief Justice of India, two senior most judges of
Supreme Court, Law Minister and one eminent person nominated by President after consultation
with Chief Justice of India.
National Judicial Appointment Commission Bill, 2014 and The Constitution (Ninety-Ninth
Amendment) Bill, 2014 were passed by Parliament near about unanimously. These laws were
ratified by more than one-half of the States.532 These laws were ratified by President on
December 31, 2014. The Bill and the Amendment came into force on April 13, 2015.533 Some
Articles were amended and some Articles were inserted. For example Articles 124A, 124B, and
124C were inserted. National Judicial Appointment Commission was given Constitutional status.
National Judicial Appointments Commission was established for making recommendations for
appointment of Judges of the Supreme Court and High Courts.534 According to Article 124A,
NJAC shall be consisted of six Members namely, three Members from Judiciary, one Member
from Executive and two eminent members.535 It was challenged before Supreme Court on the
ground of threat for independence of Judiciary which is the basic structure of the Constitution.
National Judicial Appointment Commission Act, 2014 and The Constitution (Ninety-Ninth
Amendment) Act, 2014 were declared unconstitutional in the case of Supreme Court Advocates
on Record Association v. Union of India on October 16, 2015.536
Following propositions were laid down-
(1) There is no role for High Court Judges.
(2) Section 5 (2) and Section 6 (6) confer veto powers to two members of the Commission
which is not contemplated by Constitutional Amendment.
530
The President of India appointed Justice Shri M.N. Venkatachaliah, former Chief Justice of India as the
Chairperson of the Commission on February 23, 2000. This Commission submitted its report in two volumes to the
Government on March 31, 2002. Report of this Commission is available at http://legalaffairs.gov.in/ncrwc-report .
531
Available at; http://legalaffairs.gov.in/sites/default/files/chapter%207.pdf, Vol.1, Chapter 7, Para 7.3.7. (Visited
on July 9, 2018)
532
According to Article 368 (2) provided that (b) , any change related to Chapter IV of Part V and Chapter V of Part
VI must be ratified by the Legislature of not less than one-half of the States before presenting to the President for
assent.
533
99th Constitutional Amendment Act is available at http://legislative.gov.in/amendment-acts and NJAC Act is
available at http://www.egazette.nic.in/WriteReadData/2014/162235.pdf, (Visited on July 13, 2018).
534
Statement of Objects and Reasons of 99th Constitutional Amendment is available at
http://legislative.gov.in/sites/default/files/99%20SOR.pdf (Visited on July 13, 2018).
535
―124A. (1) There shall be a Commission to be known as the National Judicial Appointments Commission
consisting of the following, namely:–– (a) the Chief Justice of India, Chairperson, ex officio; (b) two other senior
Judges of the Supreme Court next to the Chief Justice of India ––Members, ex officio; (c) the Union Minister in
charge of Law and Justice––Member, ex officio; (d) two eminent persons to be nominated by the committee
consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People
or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in the House of
the People –– Members: Provided that one of the eminent person shall be nominated from amongst the persons
belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women: Provided
further that an eminent person shall be nominated for a period of three years and shall not be eligible for
renomination. (2) No act or proceedings of the National Judicial Appointments Commission shall be questioned or
be invalidated merely on the ground of the existence of any vacancy or defect in the constitution of the Commission.
536
(2016) 5 SCC 1. This case is known as NJAC case.
399
(3) In case of nomination of two eminent members, judiciary has no significant role. Two
eminent persons to be nominated by the committee consisting of the Prime Minister, the
Chief Justice of India and the Leader of Opposition in the House of the People .
By this judgment collegium system was again revived.
VII Appointment of Judges during 2015- Till now.
At present time judges are appointed according to Collegium system as it was developed in
Second Judges case537 and Third Judges case.538After this Memorandum Showing the Procedure
for Appointment of the Chief Justice of India and Judges of the Supreme Court of India539 and
Memorandum Showing the Procedure for Appointment and Transfer of Chief Justices and
Judges of High Courts540 were framed. According to these memorandum there are following
procedure for appointment of judges of Supreme Court and High Court –
Chief Justice of India – Generally senior most judge of Supreme Court is appointed on the
recommendation of outgoing Chief Justice of India. He must be fit to hold this office. But it is
not rule. In case of doubt of his fitness, other judges as envisaged in Article 124(2) must be
consulted. Law Minister after receiving the recommendation of CJI or other Judges would put
the file before Prime Minister who shall recommend the President. President shall appoint that
recommendee as CJI.
Present time Mr. Dipak Mishra is CJI who is going to retire on October 2, 2018. After him senior
most Judge is Mr. Ranjan Gogoi who also participated in Press Conference with three other
Judges held on January 12,2018. Suppose outgoing CJI i.e. Mr. Dipak Mishra doesn‘t find
suitable Mr. Ranjan Gogoi as a CJI then, Law Ministry may consult with other Judges.
Judges of Supreme Court – In case of expected vacancy, CJI will initiate proposal and forward
his recommendation to the Union Law Minister. The opinion of the Chief Justice of India for
appointment of a Judge of the Supreme Court should be formed in consultation with a collegium
of the four seniormost puisne Judges of the Supreme Court. If the successor Chief Justice of
India is not one of the four seniormost puisne Judges, he would be made part of the collegium as
he should have a hand in selection of Judges who will function during his term as Chief Justice
of India.541
Name of recommendee shall be sent to the the Union Minister of Law, Justice and Company
Affairs will put up the recommendations to the Prime Minister who will advise the President in
the matter of appointment. President shall appoint that recommendee as Judge of Supreme Court.
As soon as the warrant of appointment is signed by the President, the Secretary to the
Government of India in the Department of Justice will announce the appointment and issue the
necessary notification in the Gazette of India.
Chief Justice of High Court – Chief Justice of India after consultation with two senior most
judges of Supreme Court. Such views would be sent by CJI to Union Law Minister. After
537
(1993) 4 SCC 441; AIR 1994 SC 268.
538
AIR 1999 SC 1.
539
Available at http://doj.gov.in/sites/default/files/memosc.pdf (Visited on July 13, 2018).
540
Available at http://doj.gov.in/sites/default/files/memohc_0.pdf (Visited on July 13, 2018).
541
Memorandum Showing the Procedure for Appointment of the Chief Justice of India and Judges of the Supreme
Court of India, Para 3.1, available at http://doj.gov.in/sites/default/files/memosc.pdf (Visited on July 13, 2018).
400
receiving the recommendation of CJI, Law Minister would obtain the views of the concerned
State Government. After receipt of the views of the State Government, the Union Minister of
Law, Justice and Company Affairs, will submit proposals to the Prime Minister, who will then
advise the President as to the selection.
Judges of High Court – Proposal for appointment of Judges shall be initiated by Chief Justice
of the High court. However, if the Chief Minister desires to recommend the name of any person
he should forward the same to the Chief Justice for his consideration. Where vacancy is
expected, the Chief Justice of that High Court after consulting two senior most colleagues shall
communicate to the Chief Minister of the State. Its copy of recommendation shall be sent to the
Governor.
The Governor as advised by the Chief Minister should forward his recommendation along with
the entire set of papers to the Union Minister of Law.
The complete material would then be forwarded by The Union Minister of Law to the Chief
Justice of India for his advice. The Chief Justice of India would, in consultation with the two
senior most Judges of the Supreme Court and shall send his recommendation to Union Law
minister who shall forward it to Prime minister. Prime Minister would advise to President who
shall appoint such recommendee as a High Court judge.542
VIII Suggestions
There are following suggestions for transparent and accountable procedure for appointment of
judges of Higher Judiciary –
(1) There must be an independent body known as National Judicial Appointment
Commission (NJAC). It must be consisted of Chief Justice of India, senior most Judge of
Supreme Court, Chief Justice of Two High Courts, Eminent Person, Union Law Minister,
President of Bar Council of India. Decision must be taken by majority. Eminent person
must be selected by all remaining members by majority. Chief Justice of India must be its
Chairperson.
(2) There must be time limit for short listing the names of judges for Supreme Court and
High Court. Time limit must also be for President for taking decision regarding names
send by NJAC.
(3) President must have power to reject the name. But after reiteration the name, President
must accept the name within stipulated time.
(4) The President must have either to accept all recommendee or reject all recommendee
with reasons.
(5) Age of retirement must be increased up to 70 years and there must be cooling period for
two years for next appointment for any post. It must be for all Judges whether he belongs
to High Court or Supreme Court.
IX Conclusion
542
Memorandum Showing the Procedure for Appointment and Transfer of Chief Justices and Judges of High Courts
available at http://doj.gov.in/sites/default/files/memohc_0.pdf (Visited on July 13, 2018).
401
Democracy depends upon decision of independent judiciary. Search for committed Judiciary is
fatal for country. A person who is appointed on the basis of buttering or with the help of
corruption, he can‘t decide the case on the basis of merit. History of appointment of judges
shows neither Executive nor Judiciary is complete. Judges must be appointed on the basis of
consultative process in which active participation of all stake holders must be ensured.
402
Brief Legal and Political History of Articles 370 and 35A
Author543
Abstract
Why is Jammu and Kashmir disputed since Mountbatten Plan to till now? Why people of
Kashmir who were interested to join India and fought against Pakistan are bound to live in fear
of terror? How article 370 can be omitted from Constitution of India? Whether Article 35A
which was inserted in Indian Constitution by Presidential Order in 1954 is Constitutional?
Researchers have tried to explore available resources regarding these questions. Main question
should not be regarding abolition of Article 370. Main question should be restoring peace and
tranquility in Jammu and Kashmir without violating basic structure of the Constitution of India
and keep intact unity and integrity of India. Section 3 of the Constitution of Jammu and Kashmir
clearly declares that Jammu and Kashmir is and shall be integral part of the Union of India. In
the case of State Bank of India v. Santosh Gupta and Anr. Etc.544(2016), Supreme Court clearly
held that Jammu & Kashmir is not sovereign and Constitution of Jammu & Kashmir is
subordinate to Constitution of India.
Key words
Article 370, Article 35A, Presidential Order, Consultation, Concurrence, Constitution of Jammu
and Kashmir, Constituent Assembly and State Government.
Introduction
Before August, 1947 Indian Territories were governed by Britishers directly or indirectly. Those
territories which were governed by Britishers directly called ‗British India‘. In ‗British India‘
there was no role of Indian kings or Nawabs. Indian territories governed by Britishers indirectly
were governed by kings or Maharaja or Nawabs directly. Such territories were called Princely
States / Native States. These were 565 Princely States / Native States. British India 545 converted
into Dominion of Pakistan and Dominion of India on 14th and 15th August, 1947 respectively.546
Dominion of India converted into Union of India on January 26, 1950.547
According to Mountbatten Plan548 it was declared that British India would be divided into two
parts, namely, (i) Dominion of India & (ii) Dominion of Pakistan. According to this Plan549
543
Krishna Murari Yadav, Assistant Professor, Faculty of Law, University of Delhi, Delhi, Contact no. -
7985255882,Krishnamurari576@gmail.com.
544
AIR 2017 SC 25. This case was decided on December 16, 2016.
545
Company Rule was ended by Government of India Act, 1858 and all powers, privileges and duties were
conferred to British India which directly came under British Crown. British India was ended by the Independence
of India Act, 1947.
546
Independence of India Act, 1947. It was enacted by British Parliament on July 18, 1947. This Act is available at:
http://www.legislation.gov.uk/ukpga/1947/30/pdfs/ukpga_19470030_en.pdf (Visited on August 15, 2018).
547
Constitution of India, Article 1. According to Article 394, Article 1came into force on 26 January, 1950.
548
Mountbatten Plan, June 3, 1947- Louis Mountbatten announced on All India Radio (In all India Radio House) in
presence of Mr. Jawaharlal Nehru, Mr. Md Ali Jinnah and Mr. Baldev Singh in evening on June 3, 1947 which is
popularly known as Mountbatten Plan regarding division of British India and choice of Princely States.
403
Indian States (These are also known as Princely States / Native States) had three options namely
(i) to choose Dominion of India, or (ii) to choose Dominion of Pakistan , or (iii) to be an
independent country . Had the third option been accepted, Union of India had been divided into
566 parts.
Following the Mountbatten Plan550, Independence of India Act, 1947551 was passed by British
Parliament. Principle of ‗Lapse of Paramountcy‘ was enshrined in section 7 of Indian
Independence Act, 1947. According to this section, after 15th August all treaty, agreement,
accord with any Indian States shall be lapsed, and it shall be treated that there were no agreement
with any princely states. Three options were given for Indian States. These options were either to
choose India or Pakistan or to be an independent country.
‗Instrument of Accession‘ becomes a document which contents conditions to join a country.
‗Instrument of Accession‘ for ‗Dominion of India‘ was prepared by Mr. V. P. Menon.
‗Instruments of Accession‘ for Dominion of India were documents which were containing
conditions to join Dominion of India. If any Indian State signed it, it means that State had joined
India. August 15, 1947 is known for power of transfer from British India to Dominion of
India552. Till this date all Indian States had joined India, except (1) Jammu and Kashmir, 553 (2)
Junagarh,554 (3) Hyderabad555 and (4) Bhopal.556
Mr. Hari Singh king of Jammu & Kashmir signed ‗Instrument of Accession‘ on October 26,
1947, in Amar Palace, Jammu. Accession of Jammu & Kashmir may be discussed in two parts
namely Pre-Constitutional political and legal history and Post-Constitutional political and legal
history.
(1)Pre-Constitutional Political and legal history
Hari Singh – Mr. Maharaja Hari Singh (1895 -1961) was king of Jammu and Kashmir during
1925-1961. Lord Louis Mountbatten tried to make Hari Singh understand to join either India or
Pakistan in June 1947. But Mr. Ram Chandra Kak who was the then Prime Minister and advisor
of king was not interest to accept such suggestions and Maharaja Hari Singh decided to keep
Kashmir as an independent nation. Up to August 15, 1947 he neither joined Dominion of
Pakistan nor Dominion of India. In this way Kashmir became a sovereign nation. Although,
Maharaja Hari Singh had signed ‗Instrument of Accession‘ on October 26, 1947 but Instrument
of Accession was accepted on October 27, 1947. It lost its sovereignty on October 27, 1947 on
which date Instrument of Accession of Kashmir was accepted by Mountbatten, Governor
General of India.
Sheikh Mohammed Abdullah – Mr. Sheikh Mohammed Abdullah completed M.Sc. from
Aligarh Muslim University in 1930. When he returned to Kashmir he could not get job due to
biasness of Maharaja in favour of Hindus. He started to agitate against king and formed a Party
549
Id.
550
Id.
551
Independence of India Act, 1947 is available at:
http://www.legislation.gov.uk/ukpga/1947/30/pdfs/ukpga_19470030_en.pdf (Visited on August 19, 2018).
552
Section 7 of Independence of India Act, 1947 deals consequences of setting of new Dominion.
553
‗Instrument of Accession‘ was accepted on October 26, 1947
554
‗Instrument of Accession‘ was accepted on November 7, 1947
555
‗Instrument of Accession‘ was accepted on September,17, 1948
556
‗Instrument of Accession‘ was accepted on April 30, 1949
404
which was known as All Muslim Conference on October 16, 1932. Sheikh was president of this
Party. He changed his mind and thought to include person of all religions. He realized that the
actual fight was not against Hindu king. Actual fight was against dictator king. So All Muslim
Conference converted into National Conference on June 11, 1939. He started a movement for
abolition of kingship in 1946. He was arrested. He was released on September 19, 1947. He and
his supporters played vital role in support of Indian Army at the time of attack over Kashmir by
Pakistan. He was very popular leader. He accepted concept of secularism and socialism. So Mr.
Jinnah and Muslim League were unable to play any role in Kashmir. He played vital role as a
leader in politics of Jammu and Kashmir.
War between Pakistan and Kashmir (October 22, 1947 - October 26, 1947)-
On October 16, 1947, Pakistan broke ‗Standstill Agreement‘ with Kashmir and stopped supply
of grains, oil etc. and train services. Mr. Md. Jinnah wanted to use force for acquiring land of
Kashmir. Pakistan with help of tribal militias attacked over Kashmir on October 22, 1947. At this
time Kashmir was sovereign. Kashmiri Muslim Army who was serving king joined hands of
Pakistani invaders. Brigadier Rajendra Singh stopped them from entering into Uri by blasting
bridge and stopped them for two days. He sacrificed his life but played a vital role to save
Kashmir. After two days (October 24, 1947) Pakistani invaders entered into Uri and captured
Hidro -Power Station. They cut electricity of Kashmir. They had reached in Baramulla which
was 54 kilometers from Srinagar. But invaders started to murder, rape, loot etc. of all persons
irrespective of religion, race, caste sex etc. in two days. King Hari Singh got time to rethink his
decision. Hari Singh requested from Dominion of India to save Kashmir on October 24, 1947.
On 25 October, Memon met new Prime Minister Mehar Chand Mahajan and King. He suggested
king to go Jammu after leaving Kashmir. Following the suggestions Hari Singh ran to Jammu.
Memon, Prime Minister Mehar Chand Mahajan and some army officers leaved Kashmir in night.
On October 26, 1947, Pakistani invaders attacked over Kashmir. Lord Louis Mountbatten was
not ready to save Kashmir unless King decides to join Dominion of India because at that time
Kashmir was an Independent country. In this meeting Mr. Memon explained ground report of
Kashmir. After Meeting of Defence Committee, Memon, Prime Minister Mehar Chand Mahajan
went to Jammu and met Hari Singh. Hari Singh signed on ‗Instrument of Accession‘ on the same
date i. e. on October 26, 1947.557
Sign on ‗Instrument of Accession‘ by Maharaja Hari Singh on October 26, 1947 and its
acceptance on October 27, 1947
‗October 26 is historical date in the history of Kashmir. On this date Maharaja Hari Singh signed
‗Instrument of Accession‘ and decided to join Dominion of India. Mountbatten, Governor
General of India accepted this ‗Instrument of Accession‘ on October 27, 1947.558 After sign on
‗Instrument of Accession‘ by Mountbatten, Jammu &Kashmir became part of Dominion of India
and lost its sovereignty. Now it was obligation of India to save the Kashmir. Again meeting of
Defence Committee was held and it was decided to send the army in early morning to save the
Kashmir. In this meeting Mountbatten proposed for plebiscite in Kashmir after reinitiation of
peace and security. Mr. Patel and Mr. Nehru gave implied consent. This Instrument of Accession
557
M.P.Singh, V.N.Shukla‟Constitution of India,1105,(EBC Publishing (P) Ltd., Lucknow. Edn.12 th ,2013).
558
Id.
405
was in no way different from executed by some 500 other states. It was unconditional voluntarily
and absolute. It bound the Jammu & Kashmir legally and constitutionally.559
First war between India and Pakistan (27 October, 1947- January 1, 1949)
October 27, 1947 ‗Instrument of Accession‘ was signed by Mountbatten and Kashmir became
part of India. Attack over Kashmir after sign of ‗Instrument of Accession‘ was attack over India.
Early morning of 27 October, 1947 Lt. Col. Deewan Ranjit Roy reached Kashmir with ‗Air
Force‘. After this Indian forces heavily attacked over Pakistani invaders. They started to run
away. ‗Bharat Mata Ki Jai‘(Victory of Mother India) slogan were chanted by everyone and
everywhere. War was continuing. Mr. Jinnah invited India for discussion in Lahore. Mr.
Mountbatten and Mr. Nehru were ready but Mr. Patel was opposing. Only Mountbatten reached
Lahore. Mr. Nehru did not go due to his health reasons. On November 1, 1947, Mountbatten met
with Jinnah in Lahore. Jinnah was saying that accession was a cheating. Mountbatten supported
India. It is the first official meeting with India and Pakistan. Everything was going in favour of
India. But unfortunate things happened on November 2, 1947.
Announcement of Plebiscite in Kashmir by Mr. Nehru on November 2, 1947
Mr. Nehru did not know ground reality of Kashmir after Pakistani attack. He had misconception
about United Nations Organisation because he did not know practical behaviors of permanent
members of Security Council. Mr. Nehru had no bargaining power with permanent members of
Security Council. On November 2, 1947, without waiting result of Meeting of Mountbatten and
Jinnah, Nehru announced on ‗All India Radio‘ in Delhi for plebiscite in Kashmir and role of
United Nations on Kashmir issues under supervision of International Bodies like United Nations
Organization. First time plebiscite was suggested by Mountbatten in Meeting of Defence
Committee on 26 Oct. 1947. But in the meeting condition was that plebiscite would be
conducted after restoration of peace and security. Nehru openly declared for plebiscite on
November 2. Jinnah was not ready for plebiscite at that time. He feared that Kashmir may join
India under leadership of Sheikh. Even USA and UK knew that in case of plebiscite Kashmir
would join India. So USA and UK supported Pakistan for their interests. Mr. Nehru committed
wrong by sending plebiscite issues in UNO. At that time plebiscite should have been conducted
without interference of UNO. Nehru realized this later on. After this Kashmir issues became
international issues. Later on by interference of Security Council cease fire occurred and
Pakistan have half part of Kashmir till now.
Plebiscite was completed in Jammu & Kashmir in 1957. Members of Constituent Assembly were
representing the Public of Jammu & Kashmir. They were elected by public by casting votes.
They expressed their views through Constitution of J&K which came into force on January 26,
1957. Article 3 of the Constitution of J&K clearly says that ‗The State of Jammu and Kashmir is
and shall be an integral part of the Union of India. Article 147 says no change can be done in
Article 3 of the Constitution.
Creation of POK/LOC on January 1, 1949
559
Adarsh Sein Anand, Former Chief Justice of India, Accession of Jammu and Kashmir State –Historical and Legal
Prospective 460, Journal of the Indian Law Institute, Vol.43, October –December, 2001
406
After announcement of Mr. Nehru on November 2, 1947 Kashmir‘s issue was referred to UNO.
India raised this issue in Security Council by using Article 35 of the Charter of the United
Nations Organization and complained against Pakistan.560 United Nations offered for cease fire
on August 13, 1948. Indian Army was continuously acquiring land of Kashmir from Pakistan.
Jinnah lost his mental control. It was the first defeat of Pakistan.
Due to intervention of UNO, on 1st January 1949, cease fire between India and Pakistan was
declared. At the time of cease fire Indian Army had thrown Pakistani Army from Kargil and
Dras but remaining part was in the hand of Pakistan Army. Land held by Pakistan is called
Pakistan occupied Kashmir (POK). Cease fire line on January 1, 1949 is called ‗Line of Control‘
(LOC).
Proclamation of responsible Government - March 5, 1948
Hari Singh issued a proclamation on March 5, 1948 for forming a responsible government of the
Council of Ministers headed by the Prime Minister which was to take steps to constitute a
National Assembly based on adult franchise to frame a Constitution for the State. On the same
date Hari Singh appointed Sheikh as his Prime Minister due to pressure of public and national
leaders.
(2)Post-Constitutional political & legal history
On 25 January, 1950, Yuvraj Karan Singh authorized by Maharaja announced that Constitution
of India must be adopted by Constituent Assembly of the States only those provisions which
were related to Jammu and Kashmir. Remaining part of Constitution of India came into force on
January 26, 1950. Constitution (Application to Jammu and Kashmir) Order 1950 was issued by
President by using power conferred by Article 370(1) on January 26, 1950.
Constitution of Jammu and Kashmir
The terms of the proclamation of the Maharaja on March 5, 1948 in regard to the convening of a
National Assembly did not meet the requirements of the situations prevailing at that time. Yuvraj
Karan Singh issued proclamation for new Constituent Assembly.
On April 20, 1951 Yuvraj Karan Singh s/o Maharaja Hari Singh issued a Proclamation for
constituting a Constituent Assembly for purposes of framing a Constitution for the State. The
Constituent Assembly consisted of seventy-five members. National Conference won all the 75
seats in direct election on the basis of adult franchise under leadership of Sheikh Abdullah. The
first meeting of the J&K Constituent Assembly was held at Srinagar on October 31, 1951.
According to preamble of Constitution of J&K, Constitution of the State was adopted and
enacted on November 17, 1956. The last session of the Constituent Assembly was held on
January 25, 1957. Constitution of Jammu & Kashmir came into force of January 26, 1957.
January 26 is also celebrated as republic day of India. January 26 was chosen for enforcement of
Constitution of J&K to show unity with India. Total sections are 158 and seventh schedules and
Appendix. First Schedule has been omitted.
560
Adarsh Sein Anand, Former Chief Justice of India, Accession of Jammu and Kashmir State –Historical and Legal
Prospective 462, Journal of the Indian Law Institute, Vol.43, October –December, 2001
407
Article 370 of Constitution of India

Shri N. Gopalaswami Ayyangar presented clause 306A (Now it is known as Article 370) in
Constituent Assembly on October 17, 1949.561 It was introduced due to absence of peace and
security in J&K. It was accepted in form of interim system. Shri N. Gopalaswami Ayyangar
elaborated each provision in detail. Clause 306A became Article 370 after the Commencement of
the Constitution of India. Article 370 came into force on January 26, 1950. Wordings of article
370 are following -
Article 370 Temporary provisions with respect to the State of Jammu and Kashmir
(1) Notwithstanding anything in this Constitution,—
(a) the provisions of article 238 shall not apply in relation to the state of Jammu and Kashmir;
(b) the power of Parliament to make laws for the said State shall be limited to—
(i) those matters in the Union List and the Concurrent List which, in consultation with
the Government of the State, are declared by the President to correspond to matters specified in
the Instrument of Accession governing the accession of the State to the Dominion of India as the
matters with respect to which the Dominion Legislature may make laws for that State; and
(ii) such other matters in the said Lists as, with the concurrence of the Government of the State,
the President may by order specify.
Explanation: For the purposes of this article, the Government of the State means the person for
the time being recognized by the President as the Maharaja of Jammu and Kashmir, acting on
the advice of the Council of Ministers for the time being in office under the Maharaja‘s
Proclamation dated the fifth day of March, 1948;
(c) the provisions of article 1 and of this article (370) shall apply in relation to that State;
(d) such of the other provisions of this Constitution shall apply in relation to that State subject to
such exceptions and modifications as the President may by order specify:
Provided that no such order which relates to the matters specified in the Instrument of Accession
of the State referred to in paragraph (i) of sub-clause (b) shall be issued except in consultation
with the Government of the State:
Provided further that no such order which relates to matters other than those referred to in the
last preceding proviso shall be issued except with the concurrence of that Government.
(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause
(b) of clause (1) or in the second provision to sub-clause (d) of that clause be given before the
Constituent Assembly for the purpose of framing the Constitution of the State is convened, it
shall be placed before such Assembly for such decision as it may take thereon.
(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by
public notification, declare that this article shall cease to be operative or shall be operative only
with such exceptions and modifications and from such date as he may specify:
561
Constituent Assembly Debate, Volume X. It is available at:
http://164.100.47.194/Loksabha/Debates/cadebatefiles/C17101949.html (Visited on August 16, 2018).
408
Provided that the recommendation of the Constituent Assembly of the State referred to in clause
(2) shall be necessary before the President issues such a notification.
(1) Non-obstante Clause Article 370(1)- Notwithstanding anything in this Constitution
Starting words of article 370 are „Notwithstanding anything in this Constitution‟. It contents
Non-obstante Clause.562 It means that this article is not subject to other articles including Part III
of the Constitution of India. Non-obstante Clause has also been used in several other articles of
the Constitution of India. But question arises whether this article can violate the basic feature of
the Constitution. In the case of R. C. Poudyal and Anr. v. Union of India and Ors.563(1993)
Supreme Court held that mere use of Non-obstante Clause in any article cannot allow that article
to transgress basic structure of the Constitution. It means basic structure of the constitution of
India cannot be violated in any circumstances. It is great contribution of Supreme Court by
enunciating the doctrine of inviolability of the basic structure of the Constitution of India.564 It
means that article 370 is subject to basic structure of the Constitution of India.
(2) Non-application of article 238- Article 370(1) (a)
Article 370(1) (a) is related to application of article 238 which was related to the States in Part B
of the First Schedule. State Reorganization Commission was constituted in 1953. It submitted its
Report in 1955. This article was repealed by the Constitution (7th Amendment) Act, 1956. This
Amendment was done for implementation of State‘s Reorganization Plan. Jammu and Kashmir
was a State ‗B‘ category. By this Amendment two categories have been provided. In first
category States have been provided and in second category Union Territories have been
provided. These States and Union Territories have been provided in First Schedule of the
Constitution of India. After repeal of article 238, clause (1) has become superfluous. Now there
are only two categories namely, State and Union Territory. Now Jammu and Kashmir is State.
(3) Law making power of Parliament and Jammu & Kashmir- Article 370(1) (b)
Article 370(1) (b) limits laws making powers of Parliament. In respect of Jammu and Kashmir
Parliament can make laws either with consultation or concurrence of the Government of the State
as the case may be. Laws making powers of Parliament can be divided into two parts namely (i)
subject matters specified in Instrument of Accession in consultation, and (ii) subject matters
other than specified in Instrument of Accession with concurrence. Article 370 empowers the
President to define the Constitutional relationship with J&K.
(i) Laws making powers of Parliament on subject matters specified in Instrument
of Accession with consultation - Article 370(1)
Parliament has power to make laws on those subject matters which have been mentioned in
Union or Concurrent List for whole India except Jammu and Kashmir without any restriction.
But in case of Jammu and Kashmir powers of Parliament are limited. According to article 370(1)
(b) (i) Parliament with consultation of State Government can make laws on those subject matters
562
State Bank of India v. Santosh Gupta and Anr. Etc. AIR 2017 SC 25. This case was decided on December 16,
2016.
563
AIR 1993 SC 1804. Date of Judgment of this case is February 10, 1993. Available at:
https://indiankanoon.org/doc/745161/ (Visited on August 16, 2018).
564
M.P.Jain, Indian Constitutional Law 1761(LexisNexis, Gurgaon (Haryana), 8th edn. 2018).
409
which have been mentioned in Union or Concurrent List correspond to the matters mentioned in
Instrument of Accession of Jammu and Kashmir. President has power to specify corresponding
matters.
Serial number (3) of Instrument of Accession authorizes Dominion of India to make laws
regarding State of J&K. Under this Instrument it has been provided that Dominion Legislature
(Now Parliament of India) can make laws on those subject matters which have been provided in
Schedule attached with this Instrument of Accession. In the Schedule subject matters have been
classified into four categories namely, (a) Defence – 4 items (b) External affairs -3 items (c)
Communications – 9 items (d) Ancillary – 4 Items.565 These subject matters were surrendered by
the State to the Dominion of India.566 Time and again by Presidential Order Parliament has been
authorized to make laws on some more subject matters. Presidential order shall be issued only
after consultation with Government of J&K.
(ii) Law making powers of Parliament on subject matters other than specified in
Instrument of Accession with concurrence - Article 370(1) (b) (ii)
According to Article 370(1) (b) (ii), Parliament with concurrence of State Government can
make laws on those subject matters which have been mentioned in Union or Concurrent List
but not mentioned in Instrument of Accession of Jammu and Kashmir as the President
specify by his order. This provided for subsequent enlargement of the Union powers if this
were deemed necessary in the interests of the Union or the State.567
Meaning of ‗Government of the State‘
Meaning of Government of the State is very important. Parliament can make laws only with
consultation or concurrence of the Government of the State. In the Constituent Assembly from
the very beginning Explanation was added to define ‗Government of the State.‘ Explanation
added in clause 306A (now article 370) is “For the purposes of this article, the Government of
the State means the person for the time being recognised by the Union as the Maharaja of
Jammu and Kashmir, acting on the advice of the council of Ministers, for the time being in office,
under the Maharaja‟s Proclamation, dated the fifth day of March, 1948.” This explanation was
accepted in article 370 of the Constitution of India with minor modification. „…recognised by
Union‟ was replaced by ‗…recognised by President‟ in Article 370.
President has power to make ‗Order‘ under article 370 (1). Amendment by Parliament is not
necessary. In 1952, the Constituent Assembly of J&K , on the recommendations of the Basic
Principles Committee, abolished the hereditary rulership and substituted in its place an elected
head, designed Sadar-i-Riyasat.568 It became necessary to change the definition of the
Government of State and Explanation was modified. In 1952 modification was done in
565
Instrument of Accession and its Schedule is available at:
http://jklaw.nic.in/instrument_of_accession_of_jammu_and_kashmir_state.pdf (Visited on August 17, 2018).
http://jklaw.nic.in/historical.htm this is official of J&K Government. Here all important legal information related to
J&K is available.
566
567
Justice A S Anand, The Constitution of Jammu & Kashmir: Its Development & Comments 99 (Universal Law
Publishing Co. Pvt. Ltd., New Delhi, 5th edn. 2006).
568
410
Explanation by order of President of India on the recommendation of Constituent Assembly

(First meeting on October 31, 1951- Last meeting on January 25, 1957) of J&K. ‗Order‘ was
effective from November 17, 1952.
Substituted explanation is following -―Explanation –For the purposes of this article, the
Government of the State means the person for the time being recognised by the President on the
recommendation of the Legislative Assembly of the State as the Sadar-i-Rayasat of Jammu and
Kashmir, acting on the advice of the Council of Ministers of the State for the time being in
Office.”
In 1965 post of Sadar-i-Rayasat and Prime Minister was substituted by Governor and Chief
Minister respectively. This was done by the Constitution of Jammu and Kashmir (Sixth
Amendment) Act, 1965. Post of Sadar-i- Rayasat was substituted by Governor from Constitution
of Jammu and Kashmir but consequential amendment was not done in Article 370. Jammu and
Kashmir Preventive Detention (Amendment) Act, 1967 was assented by Governor. It was
challenged that Governor had not been mentioned in Article 370. So this Amendment was
unconstitutional. Constitutional Bench of Supreme Court in the case of Mohd. Maqbool Damnoo
v. State of Jammu and Kashmir569 held that no difficulty in holding that article 370 (1)
(b) and article 370 (1) (d) place no limitation on the framing or amendment of the Constitution of
Jammu and Kashmir. If there is a limitation it must be found in the Constitution of the State.
Section 147 of the Constitution of Jammu and Kashmir itself provides that under that section the
Indian Constitution cannot be amended.570 In this case the Court held that the Amending Act was
validly assented to by the Governor.
According to section 35 of the Constitution of Jammu and Kashmir all functions of the Governor
except those functions mentioned in sections 36, 38 and 92 shall be exercised by him only on the
advice of the Council of Ministers with Chief Minister at the head.
Final conclusion is that in present time Government of the State means Governor who acts only
on the advice of the Council of Ministers with Chief Minister at the head. Jammu and Kashmir
has adopted Parliamentary form of Government.571 So final powers are in the hand of Legislative
Assembly of Jammu and Kashmir.
(4) Jammu and Kashmir is inseparable part of India - Article 370(1) (c)
According to article 370(1) (c), article 1 and article 370 shall apply in relation to State of Jammu
and Kashmir. There are only two articles which are applied of their own force to the State of
Jammu and Kashmir. These two articles are article 1 and article 370.572According to article 1,
territories of Jammu and Kashmir have been specified in the First Schedule. Jammu and Kashmir
is part and parcel of Union of India. Article 370 is temporary, transitional and special provision.
569
AIR 1972 SC 963
570
Mohd. Maqbool Damnoo v. State of Jammu and Kashmir, AIR 1972 SC 963.
571
Constitution of Jammu and Kashmir, Section 37- The Council of Ministers shall be collectively responsible to
the Legislative Assembly.
572
Publishing Co. Pvt. Ltd., New Delhi, 5th edn. 2006). It was also said in case of State of Jammu & Kashmir …v. Dr.
Susheela Sawhney... AIR 2003 J K 83 Para 20. This case was decided by J&K high Court on 7 October, 2002.
411
According to section 3 of the Constitution of Jammu & Kashmir, 1957 ‗the State of Jammu and
Kashmir is and shall be an integral part of the Union of India‘.
(5) Application of other provision of the Constitution subject to exceptions or
modifications with consultation or concurrence as the case may be-Article 370(1) (d)
Meaning of Modification- Word ‗modification‘ has been interpreted in widest amplitude.
Article 367 lays down that, unless the context otherwise requires, the General Clauses Act, 1897,
shall apply for the interpretation of the Constitution. Therefore section 21 of the General Clauses
Act, under which a power to issue a notification or order includes a power to add, amend, vary or
rescind it, is applicable to the power of the President under Art. 370.573
Puran Lakhanpal v. President of India and Others (1961) - Power of President to make an
Order to modify the Constitution was challenged in Puran Lakhanpal v. President of India and
Others574 (1961). By the Constitution (Application to Jammu and Kashmir) Order, 1954 method
of election for six seats in Lok Sabha from J&K was changed from direct election to indirect
election. This Order had been issued by President with the concurrence of the Government of
J&K under Article 370 (1). Constitutional Bench of Supreme Court held that President has such
power because essence of election still persists. Supreme Court held, ―The word „modification‟
used in article 370(1) (d) must be given the widest meaning in the context of the Constitution
and in that sense it includes an amendment and it cannot be limited to such modifications as do
not make any ―radical transformation‖.
Sampat Prakash v. State of J&K & Anr.575 (1968)- This case is related to Article 35(c). In this
case preventive detention law was enacted only for five years. It was extended for two times,
namely first time for 10 years and second time for 15 years. Supreme Court held following
important point-
(1) Word modification as used in article 370 was interpreted with the help of article 367 read
with section 21 of General Clauses Act, 1897.576 Wider interpretation was done.
(2) By Constitution (Application to Jammu and Kashmir) Order, 1954 a proviso was added
after clause (2) of Article 368. This proviso is – ―Provided further that no such
amendment shall have effect in relation to the State of Jammu and Kashmir unless
applied by order of the President under clause (1) of article 370.‖
(3) Any amendment made under article 368 cannot be applied to J&K without Order of
President made after concurrence of Government of J&K under article 370. Article 368
does not automatically applicable to J&K.
(4) Article 370 authorizes the President to modify a Constitutional provision not only when it
is applied to the State for the first time, but even subsequently after it has been applied.
(5) Meaning of modification was accepted as was laid down in Puran Lakhanpal Case, 1961.
State Bank of India v. Santosh Gupta and Anr. Etc.577(2016)
573
Sampat Prakash v. State of J&K &Anr. AIR 1970 SC 1118.
574
Available at: https://www.sci.gov.in/jonew/judis/4262.pdf
575
AIR 1970 SC 1118. This case was decided on October 10, 1968. This case is available at:
https://www.sci.gov.in/jonew/judis/1946.pdf (Visited on August 17,2018).
576
General Clauses Act, 1897 is available at:
http://www.delhihighcourt.nic.in/library/acts_bills_rules_regulations/General%20Clause%20Act.pdf (Visited on
August 17, 2018).
412
In this case Supreme Court clearly said, “It is thus clear that the State of Jammu & Kashmir has
no vestige of sovereignty outside the Constitution of India and its own Constitution, which is
subordinate to the Constitution of India. It is therefore wholly incorrect to describe it as being
sovereign in the sense of its residents constituting a separate and distinct class in themselves.
The residents of Jammu & Kashmir, we need to remind the High Court, are first and foremost
citizens of India. Indeed, this is recognized by Section 6 of the Jammu & Kashmir Constitution.”
With the help of above three cases Supreme Court has clarified Article 370 and power of
Presidential Order.578
Important Order Made by President
President has been authorized to extend to make Orders in respect of Jammu and Kashmir under
Article 370. Such Orders are made either with consultation or concurrence of the Government of
the State. Consultation is needed when subject matters are corresponding to those subject matters
which have been mentioned in Instrument of Accession. Here consultation rather than
concurrence is needed because agreement between king and Dominion of India must be
respected. Concurrence is need on those subject matters which have not been mentioned in
Instrument of Accession. Constitution (Application to Jammu and Kashmir) Order 1950 was
made by the President with consultation with Government of J&K while Constitution
(Application to Jammu and Kashmir) Order 1954 was made by the President with concurrence
with Government of J&K. Constitution Order 1954 superseded Constitution Order 1950.
(1) Constitution (Application to Jammu and Kashmir) Order 1950-

President, by using the power conferred by clause (1) of article 370, in consultation with
Government of J&K has made the Constitution (Application to Jammu and Kashmir) Order
1950.579 This Order was made on January 26, 1950 and it came on the same date. In this Order
some items mentioned in Union List were declared as corresponding matters of Instrument of
Accession. Some other provisions were also declared on which Parliament can make laws.
Delhi Agreement, 1952-
An agreement between Pt. Jawahar Lal Nehru and Sheikh Abdullah was concluded in July 24,
1952 which is known as ‗Delhi Agreement‘. By this Agreement some consciousness were made
between both leaders. These are (1) Internal autonomy was accepted (2) State Legislature was
authorized to make laws on state subjects who had gone to Pakistan due to communal violence of
1947 if they return Kashmir (3) Pardoning powers were given to President (4) State flag along
national flag was allowed. (5) Sadar-i-Riyasat must be elected by the State Legislature.
Constitution (Application to Jammu and Kashmir) Second Amendment Order, 1952.
The President by using the powers conferred by clause (1) of Article 370 of the Constitution of
India, in consultation with the Government of the State of Jammu and Kashmir made the Order
Constitution (Application to Jammu and Kashmir)Second Amendment Order, 1952. It come into
577
AIR 2017 SC 25. This case was decided on December 16, 2016.
578
Pratap Bhanu Mehta, ―The nuances of 35A‖, The Indian Express, August 9, 2018.
579
Constitution (Application to Jammu and Kashmir) Order 1950 is available at: http://jklaw.nic.in/jk1950order.pdf
(Visited on August 17, 2018).
413
force on November 17, 1952. By this Order Rajpramukh was replaced by Sadar-i-Riyasat of
Jammu and Kashmir.580 Sadar-i-Riyasat was elected person.
Removal of Sheikh Abdullah as Prime Minister and Bakshi Ghulam Mohammad new
PM581
Due to pressure of Mr. Nehru, Mr. Karan Singh was elected as first Sadar-i-Riyasat. Delhi
Agreement, 1952 was very dangerous for whole country. Agitation started against this. Dr.
Syama Prasad Mukharji, N.N. Khare and Sucheta Kriplani vehemently criticized the Delhi
Agreement.
Sheikh Abdullah, instead of implementing the Agreement started advocating secession, which
would make a Kashmir an ‗independent state‘.582 It was inflammatory rumours that USA was
backing for independence of Kashmir. Rift occurred in cabinet.
Sheikh Abdullah who was holding the post of Prime Minister since March 5, 1948 was dismissed
by Sadar-i-Riyasat583 Mr. Karan Sing on August 8, 1953 on the ground that he had lost his
majority in the House. He was not given chance to prove majority. On August 9, 1953, Sheiks
was sent to jail in ‗Kashmir Conspiracy case‘. Bakshi Ghulam Mohammad who was very
popular leader in Kashmir and he was opposing policy of Sheikh was appointed as Prime
Minister of Jammu and Kashmir on August 9, 1953.
(2) Constitution (Application to Jammu and Kashmir) Order 1954
New Delhi negotiated with Jammu and Kashmir in January, 1954. At that time President of India
and Prime Minister of India were Mr. Rajendra Prasad and Mr. Jawaharlal Nehru respectively
and Sadar-i-Riyasat and Prime Minister of Jammu and Kashmir were Mr. Karan Singh and Mr.
Bakshi Ghulam Mohammed respectively. After long discussion negotiation was concluded.
Constituent Assembly of J&K ratified the State‘s Accession to India in February 1954. 584 In
exercise of the powers conferred by clause (1) of article 370 of the Constitution, the President,
Mr. Rajendra Prasad with the concurrence of the Government of the State of Jammu and
Kashmir, on the advice of the Government of Pt. Jawaharlal Nehru made an Order which came
580
H.M. Seervai, Constitutional Law of India : A Critical Commentary A- 114 (( F.H.Seervai and N.H. Seervai,
Mumbai, Vol. 3, 5th edn. 1996).
581
Prime Minister of J&K – (1) Mehr Chand Mahajan- 15 October 1947 – 5 March 1948
(2) Sheikh Abdullah – 5 March 1948 – 9 August 1953
(3) Bakshi Ghulam Mohammad – 9 August 1953 – 12 October 1963
(4) Khwaja Shamsuddin -12 October 1963 – 29 February 1964
(5) Ghulam Mohammed Sadiq -29 February 1964 – 30 March 1965.
By the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965 Prime Minister was substituted by Chief
Minister. Ghulam Mohammed Sadiq was first Chief Minister of Jammu and Kashmir and last Prime Minister of
J&K. Under his leadership first time Congress formed Government IN Jammu and Kashmir.
582
583
When India became independent, Hari Singh was the Maharaja of Jammu and Kashmir. Technically he remained
so until 17 November 1952. Karn Singh was Sadr-e-Riyasat 17 November 1952 – 30 March 1965. This post was
abolished and post of Governor was created in 1965. At that Congress Party was in Center and Jammu & Kashmir
State. Karn Singh became first Governor -30 March 1965 – 15 May 1967.
584
P M Bakshi, Commentary on the Constitution of India 882 ( Lexis Nexis, Gurgaon,2nd edn. 2016).
414
into force on May 14, 1954. This Order is known as Constitution (Application to Jammu and
Kashmir) Order 1954.
By this ‗Order‘ several new provisions were accepted in the Constitution of India and
consequently several provisions of Indian Constitution were extended to Jammu and Kashmir.
After October 26, 1947 acceptance of Order was most beneficial. Benefit of this Order must be
evaluated according to circumstances prevailing during 1947 to 1954. It was applauded by
everyone. The gist of this Order was to give the Government of India enormously more powers
over the State than it had enjoyed before. For the first time India‘s fundamental rights was
accepted with certain modification and State‘s finances were integrated with India. By this Order
Jurisdiction of Supreme Court was extended over certain aspects of Jammu and Kashmir.585 If
you compare this Order in comparison to other State you may feel nervous. But main problem
aroused due to delay of acceptance of Instrument of Acceptance and by sending this issues in
UNO. One of the Controversial Article i.e. Article 35A came from this this Order. People of
Kashmir see article 35A as a tools to safeguard their identity.586 But it discriminate even among
people of Kashmir.
Article 35A
Article 35 a came from Constitution (Application to Jammu and Kashmir) Order 1954. This
Article has been placed in Constitution of India by Order of President who is authorized to make
such order under Article 370.587 This Article cannot be declared unconstitutional for violation of
fundamental rights. But it can be declared unconstitutional for violation of basic structure of the
Constitution of India. Although, several fundamental rights have been declared as basic structure
of the Constitution of India.
Article 35A588- Saving of laws with respect to permanent residents and their rights.-
Article 35A contents Non-obstante Clause. It declared that neither previous nor subsequent laws
enacted by Legislature of J&K shall be void on the ground of violation of any provisions of the
Constitution of India if it is related to following matters –
(1) Definition of permanent residents, (2) conferring on special rights and privileges or imposing
upon other persons any restrictions as respects-
(i) employment under the State Government;
(ii) acquisition of immovable property in the State;
(iii) settlement in the State; or
(iv) right to scholarships and such other forms of aid as the State Government may provide.
585
Sandeep Bhardwaj,―Perils of historical amnesia‖, The Hindu, August 10, 2018.
586
Naeem Akhtar, ―Why Article 35A must stay‖, The Indian Express, August 10, 2018.
587
Krishnadas Rajagopal, ―An Article on J&K‖ The Hindu, August 9, 2018.
588
Article 35A- Saving of laws with respect to permanent residents and their rights.-
Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and
Kashmir, and no law hereafter enacted by the Legislature of the State,-
(a) defining the classes of persons who are, or shall be permanent residents of the State of Jammu and Kashmir; or
(b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any
restrictions as respects-
(i) employment under the State Government;
(ii) acquisition of immovable property in the State;
(iii) settlement in the State; or
(iv) right to scholarships and such other forms of aid as the State Government may provide, shall be void on the
ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any
provision of this Part.
This is available at: http://jklaw.nic.in/constitution_jk.pdf (Visited on August 18, 2018).
415
Such legislation shall be valid notwithstanding that it is inconsistent with the fundamental rights
conferred by the Constitution upon the other citizens of India, such as discrimination on the
ground of place of birth (article 15(1), equality of opportunity for employment (article 16(1), and
right to reside and settle in any part of the territory of India (article 19(1) ( e) , etc.589
Section 6 –Permanent residents590
Section 6 of the Constitution of Jammu and Kashmir defines ‗Permanent residents‘. There are
three clauses of this section. First clause related to Citizen of India, second clause is related to
any person who migrated to Pakistan after March 1, 1947 and returns to J&K. and in third clause
―State Subject of Class I or of Class II‖ shall have been defined.
According to section 10 of the State Constitution the permanent residents of the State shall have
all the rights guaranteed to them under the Constitution of India.
Parkash v. Mst Shahni and others591
In 1965 Jammu and Kashmir High Court decided a case which involved issue of permanent
residence. According to decision of this case in case of marriage of girl who is permanent
resident with a boy who is non-permanent resident , such girl will lose the status of permanent
resident of J&K. because her domicile and nationality changed according to her husband. This
decision was supporting patriarchal society. This decision was overruled in 2002.
State of Jammu & Kashmir, Dr. ... v. Dr. Susheela Sawhney592
Whether the daughter of a permanent resident of the State of Jammu & Kashmir marrying a non-
permanent resident loses her status as a permanent resident of the State of Jammu & Kashmir, to
hold, inherit and acquire immovable property in the State and getting benefit in selection in
Government job? Answer of this question in one word is ‗NO‘. Reason of this is that in Note III
of Notification dated the 20th April 1927 No. 1-L/8.4 use the word ‗acquire‘.
State Notification No. I-L/ 84 dated the twentieth April, 1927 classified State Subjects in four
classes for giving benefits. But Section 6 of Constitution of J&K recognizes only Class I or of
Class II‖ as a permanent resident and in certain cases these persons may acquire status of
‗permanent resident‘. According to Note II of State Notification, 1927 ―The descendants of the
persons who have secured the Status of any Class of the State Subjects will be entitled to become
the State Subjects of the same class.‖
Wordings of Note-III of Notification dated the 20th April 1927 No. 1-L/8.4 are following ‗The
wife or a widow of the State Subject of any Class shall acquire the status of her husband as State
589
590
Section 6 –Permanent residents- (1) Every person who is, or is deemed to be, a citizen of India under the
provisions of the Constitution of India shall be a permanent resident of the State, if on the fourteenth day of May,
1954– (a) he was a State Subject of Class I or of Class II ; or (b) having lawfully acquired immovable property in
the State, he has been ordinarily resident in the State for not less than ten years prior to that date.
(2) Any person who, before the fourteenth day of May, 1954, was a State Subject of Class I or of Class II and who
having migrated after the first day of March, 1947, to the territory now included in Pakistan, returns to the State
under a permit for resettlement in the State or for permanent return issued by or under the authority of any law made
by the State Legislature shall on such return be a permanent resident of the State. (3) In this section, the expression
―State Subject of Class I or of Class II‖ shall have the same meaning as in State Notification No. I-L/ 84 dated the
twentieth April, 1927, read with State Notification No. 13/L dated the twenty-seventh June, 1932.
591
AIR 1965 J&K 83.
592
AIR 2003 J K 83, Para 43. Date of Decision -October 7, 2002. This is available at:
https://indiankanoon.org/doc/1409240/
416
Subject of the same Class as her Husband, so long as she resides in the State and does not leave
the State for permanent residence outside the State‟.
Note III is applicable to only those wife or widow who is non- permanent resident of J&K and
marries a permanent resident of the state. But after getting marriage they have acquired status of
her husband and became the permanent resident of Jammu and Kashmir. If they leave J&K for
permanent residence outside the State they will lose their status. This note is not applicable
those women who have become permanent resident by birth. So if such women get marriage
with non-permanent resident of J&K will not lose status of ‗permanent resident‘.
Acquision of Immovable Property -Section 4 of the J&K Land Alienation Act, 1995, Section 20-
A of the Big Landed Estate Abolition Act 2007, Section 4 of the Land Grants Act, 1996, Section
95 of the J&K Co-operative Societies Act 1960 and Section 17 of the J&K Agrarian Reforms
Act 1976, impose a complete ban on the acquisition of the immovable property by the non-
permanent residents of the state.
Prohibition in Employment - Rule 17 (a) of the Jammu and Kashmir Civil Services
(Classification, control and Appeal) Rules 1956 provides that no person shall be eligible for
appointment to any service by direct recruitment unless he is a hereditary state subject to be
known hereafter as a permanent resident of the state.
Political Rights – Section 12 (b) of the Jammu and Kashmir Representation of people Act makes
a provision that a person shall be disqualified for registration in an electoral roll if he is not a
permanent resident of the state as defined in Part III of the Constitution of J&K. Section 8 (a) of
the Village Panchayat Act provides that a person shall be disqualified for being chosen as or for
being a member of a Panchayat if he is not permanent resident of the state. Political rights of the
permanent residents of the State are also contained in Sections 51, 69 and 140 of the
Constitution of Jammu and Kashmir, which provide that only a permanent residents of the state
can be registered a voter, such person only can become member of Legislative Assembly and if
at any point of time during his tenure such person loses his status as a permanent residence, such
member acquires disqualification. It is obvious that a woman, who acquires nationality of her
husband in terms of Note III, and if her husband is not a permanent resident of the state, she will
lose her rights contemplated by the Constitution.
Right to acquire Property -There are several provisions which disable a non-permanent resident
to acquire immovable property in the state of Jammu and Kashmir. Some of these are; Section 4
of the Alienation of land Act (1938 A.D). Section 17 of the Agrarian Reforms Act, Section 139
and 140 of the Transfer of Property Act, Section 17 and 33 of the cooperative societies Act etc.
All these provisions prohibit "transfer" of immovable property in favour of a non- permanent
resident unless a provision to that effect is made by the Legislature.
Violation of Equality - Section 10 of the State Constitution lays down that permanent residents
have all the rights guaranteed to them under the constitution of India but Constitution of J&K
prohibits non- permanent resident from getting several rights in J&K. This provision can be
struck down as violative of equality clause.
417
Decision – J&K High Court held that a daughter of a permanent resident marrying a non -
permanent resident will not lose the status of permanent resident of the state of Jammu and
Kashmir.
Decision of this case was challenged in Supreme Court by State Government. But it was
withdrawn due to fear of approval of decision of Supreme Court. It was decided to change this
decision through enactment of laws by State Legislation. Permanent Residents (Disqualification)
Bill, 2004 was introduced in the Assembly to change the decision of J&K High Court in 2002. 593
These issues have been challenged in Supreme Court by ‗Public Interest Litigations‘
Abolition of Article 370 - Article 370(3)
Article 370 was introduced for a time being. It is temporary provisions in the Indian
Constitution.
Article 370 (3) -―Notwithstanding anything in the foregoing provisions of this article, the
President may, by public notification, declare that this article shall cease to be operative or shall
be operative only with such exceptions and modifications and from such date as he may specify:
Provided that the recommendation of the Constituent Assembly of the State referred to in clause
(2) shall be necessary before the President issues such a notification.‖
According to Article 370 (3), President has been authorized to cease the operation of Article 370
in whole or with modification by public notification. But this power of President is conditional
rather than absolute. This power is subject to the recommendation of the Constituent Assembly.
Constituent Assembly was in existence during 1951 -1957 (First meeting on October 31, 1951-
Last meeting on January 25, 1957). At present time this Constituent Assembly does not exist. So
Article 370(3) is not operative.
In these circumstances recourse has to be taken of Article 368. But it must be remembered that
Article 368 does not apply automatically unless President make an order after consultation with
or concurrence of the State Government.594 Article 368 does not curtail the power of the
President under Article 370.595 So final power is in the hand of Government the Government of
State of Jammu and Kashmir.
Relation between Constitution of India and Constitution of Jammu & Kashmir
Article 370 deals temporary provisions with respect to Jammu and Kashmir. According to
section 3 of the Constitution of Jammu & Kashmir, 1957 ‗the State of Jammu and Kashmir is
and shall be an integral part of the Union of India‘. Section 3 is the basic feature of Constitution
of Jammu & Kashmir. According to section 147 of the Constitution of Jammu & Kashmir any
Bill or Amendment shall not be moved in either House to change section 3 or the provisions of
the Constitution of India as applicable, in relation to the State.
Suggestions
593
Balraj Pury, Analysis of the J&K Permanent Residence Bill,
http://www.kashmirtimes.in/newsdet.aspx?q=70138 (Visited on August 19, 2018).
594
595
Sampat Prakash v. State of J&K &Anr. AIR 1970 SC 1118.
418
To ameliorate the conditions of Jammu and Kashmir, researchers are giving following
suggestions -
(1) There is acute poverty and unemployment in J&K. Condition of education is another serious
problems. On these issues State and Central Government should do some work seriously.
(2) No need to create confusion amongst people of Jammu and Kashmir. Article 370 must not be
repealed without consciousness of public of Jammu and Kashmir.
(3) Merely repealing of Article 370 is not panacea of all problems. But those Presidential Orders
and State laws which are against basic structure of the Constitution and humanity must be
repealed. Article 35A must be repealed.
(4) Use of Military force is not final solution of J&K. Separatist must be controlled by force.
There should not be any types of concession for them.
(5) National Parties are creating fear among people. Dividing society on the basis of religion is
fatal for unity and integrity of nation. For creating fear or confusion on the basis of religion there
is need of harsher punishment with speedy trial.
(6) Withdrawing of support of BJP from PDP only for political mileage was not justified with
people of State. Such types of politics have been done several times by other national and
regional parties. Such types of politics must be stopped in the interest of J&K.
(7) It is also responsibility of public of J&K to strength unity and integrity of India. Division
only on the basis of religion is not justified. Most of the people were Muslim. Still Pakistan
divided into two Parts. Principle of nation first must be accepted.
Conclusion
Humanity is above all. Public of J&K are not exception of this. Acute poverty, unemployment
education, poor health facilities, increasing offences, gender biasness and funding of Pakistan for
terrorist activities are some issues must be solved immediately. Mr. Hari Singh committed wrong
by accepting Instrument of Accession extraordinary delay. Blunder mistake was done by Mr.
Nehru who without understanding ground reality of Jammu and Kashmir after invasion of
Pakistan and practical behaviour of permanent members of Security Council sent Kashmiri‘s
issues in UNO. National and Regional parties did not try to develop J&K. These Parties were
always involved in creating and showing illusory problems and fears. I hope now Government,
political parties and people will follow above suggestions. Researchers hope that peace and
security will return back.
Bibliography
Primary Source
1. Constituent Assembly Debate
2. Constituent Assembly of J&K Debate
3. Constitution of India
4. Constitution (Application to Jammu and Kashmir) Order 1950
419
Primary Source
Book-
1. Basu, D.D., Shorter Constitution of India, Vol. 2, Edn.12th , Calcutta,
LexisNexis,2000.
2. Bakshi,P.M., Commentary on the Constitution of India, Edn.2nd
Gurgaon, LexisNexis,2016.
3. Seervai, H.M., Constitutional Law of India : A Critical Commentary,
Vol. 3, 5th edn., F.H.Seervai and N.H. Seervai, 1996.
4. Jain, M.P. Indian Constitutional Law, 8th edn. Gurgaon, LexisNexis,
2018.
5. Singh, .P., V.N.Shukla‘Constitution of India, Edn.12th , Lucknow,
EBC Publishing (P) Ltd.,2013
6. Anand, A. S., The Constitution of Jammu & Kashmir: Its
Development & Comments , 5th edn. New Delhi, Universal Law
Publishing Co. Pvt. Ltd., 2006.
Article
Anand, A. S., ―Accession of Jammu and Kashmir State –Historical and Legal
Prospective”,JILI, Vol.43, 2001.
Website
(1) https://loksabha.nic.in/
(2) https://indiankanoon.org
(3) https://www.sci.gov.in
(4) http://jklaw.nic.in
Newspapers
(1) The Hindu
(2) Indian Express
BRIEF POLITICAL AND LEGAL HISTORY OF NRC IN INDIA

Assistant Professor,
LC-I, Faculty of Law,
University of Delhi, Delhi
Contact no. -7985255882
Krishnamurari576@gmail.com
420
Abstract
What was need of concept of State? Why was State created? Since inception of State, minimum
functions of State were security of borders of State and protection of Citizens. If State is not
fulfilling these minimum functions then no need of the State. Influx of illegal migrants of any
caste, religion, race, sex or age from any country is dangerous for security and consumption of
resources. Human right does not allow to attack over any country. Indian Government had failed
to tackle problem of infiltrants. Infiltrants or issues of infiltrants have always been politics for
vote banks for all national and regional parties. First time NRC was prepared for Assam. It was
the first stage where wrong was committed. NRC should have been prepared for all over India
during first census. Second wrong was committed by closing the function of Foreigners
Tribunals in 1969 by declaring that issues of infiltrants had been solved. Third time wrong was
committed when illegal migrants from East Pakistan were not forced to return in Bangladesh.
Fourth wrong was committed in at the time of Indira –Mujib Agreement in 1974 when 25th
March, 1971 was accepted as a deadline for deportation of illegal migrants from East Pakistan.
Fifth wrong and cheating and conspiracy was committed by Mrs. Indira Gandhi when IMDT Act,
1983 was enacted. This Act was enacted for protection of illegal migrants rather than
deportation of Illegal Migrants. Sixth wrong was committed that Assam Accord, 1985 was not
implemented by any political parties including Congress Party, NDA, UPA seriously. Seventh
wrong was committed by NDA-II in 2016 by introducing the Citizenship (Amendment) Bill,
2016596 in Lok Sabha for providing some relaxation on the basis of religion and Muslim was
excluded from this relaxation. Foreigners or illegal migrants of any religion are dangerous for
country.
Thanks to the Supreme Court which has protected this country by its several judgment and
„Orders‟. Name of the some cases related to this topics are Sonowal Case (I)2005 597, Sonowal
case(II)5982006, Assam Public Works v. Union of India & Ors. 2013,599, Assam Sanmilita
Mahasangha & Ors. v. Union of India & Ors., Para 48, 2014,600 Assam Public Works v. Union
of India & Ors.2018.
Introduction
Foreigners and migrants are not new problems in this country. If we search history of this
country Aryans, Muslims and Christians are few of them who migrated into India. British India
divided into two parts on the basis of religion and one more country emerged as Pakistan.
Territories of Pakistan were in two parts namely East Pakistan and West Pakistan. Indian thought
that at least now problem would not arise on the basis of religion. India tried to save itself from
influx of migrants and provided some special provisions in Part II (Articles 5- 11) of the
Constitution of India regarding Citizenship. Pakistan started to attack from West Pakistan and
596
The Citizenship (Amendment) Bill, 2016 is available at:
http://www.prsindia.org/uploads/media/Citizenship/Citizenship%20%28A%29%20bill,%202016.pdf (Visited on
August 22, 2018).
597
Sarbananda Sonowal v. Union of India & Anr. AIR 2005 SC 2920.
598
Sarbananda Sonowal v. Union of India. This judgment is available at:
https://www.sci.gov.in/jonew/judis/28359.pdf (Visited on August 22, 2018).
599
All these ‗Orders‘ are available at: http://nrcassam.nic.in/sco.html (Visited on August 21, 2018).
600
This judgment is available at: https://www.sci.gov.in/jonew/judis/42194.pdf (Visited August 18, 2018).
421
East Pakistan. From the West Pakistan it attacked with arms and from East Pakistan by sending
huge population of Muslims because East and West Pakistan was Muslim populated. Genocide
started in Pakistan and Hindus started to run into India due to fear. Assam‘s boundary is adjacent
to East Pakistan by land and water. Boundary was open. Due to huge influx in Assam,
demography of Assam changed. Nationalist leaders started to demand for laws to regulate influx
of migrants. For example Bangladeshi people and Rohingya people 601 in India. The National
Register of Citizens (NRC) is the register containing names of Indian Citizens. 602 Process of
updating National Register of Citizens (NRC) has been started after the order of Supreme Court
in case of Assam Public Works v. Union of India in 2013.603 In the case of Assam Sanmilita
Mahasangha & Ors. v. Union of India & Ors. Para 48 (December 17, 2014), Supreme Court
issued guidelines for updating NRC with date. Direction was given to update NRC up to January
1, 2016. This date was extended time to time.
The Part Publication of Draft NRC was published in midnight of 31st December 2017. Complete
draft of NRC was published on July 30, 2018. 40,70,707 persons could not be included in
Complete Draft of NRC. They can file claim and objection. Prime Minister of India has insured
that even a single genuine citizen shall not be ousted but there is no space for illegal migrants.
Types of Migration
Migration may be divided on the two basis namely, on the basis of will & territory. On the basis
of will, migration may be two types namely, voluntary migration and migration in compulsion.
Voluntary migration occurred when a person migrates in search of better life. Involuntary
migration is that migration of people who migrates from one place to another due to fear of life
or livelihood created by State or outfit group or group of people. Migration may also be divided
on the territorial basis. Such migrations are – (1) Internal migration and (2) External migration.
Internal migration means migration within own country and migration to another country. For
example Kashmiri Pandits. External migration means migration to another country.
Pre–Constitutional Law
First time Foreigners Act, 1864604 was enacted to regulate foreigners. After First World War,
Passport (Entry into India) Act, 1920605 was passed and Central Government was authorized to
make rules requiring possession of passport by person entering into India. In the beginning of
Second World War some more laws were enacted for examples Registration of Foreigners Act,
1939, Registration of Foreigners Rules, 1939 and Foreigners Act, 1940. Foreigners Act, 1940
replaced an ‗Ordinance‘ promulgated into 1939. Foreigners Act, 1946 was enacted after Second
World War. Foreigners Act, 1946 repealed the Foreigners Act 1940 Act. After division of
British India, huge population migrated from Pakistan to India and vice-versa. At the time of
Partition compulsory migration occurred. During the compulsory migration human rights of such
persons are violated at large scale. Since inception of independence of India influx in Assam was
very diligent issue. Government of India promulgated ‗Ordinance‘ on January 6, 1950 to tackle
601
Refugee from Myanmar.
602
Brief about NRC is available at: http://nrcassam.nic.in/nrc-nutshell.html (Visited August 18, 2018).
603
604
Foreigners Act, 1864 is available at: http://www.asianlii.org/mm/legis/code/fa1864127/ (Visited on August 22,
2018). In 1864 Burma was part of British India.
605
Passport (Entry into India) Act, 1920 is available at: https://mha.gov.in/sites/default/files/PptEntryAct1920.pdf
422
the migrants‘ influx from East Pakistan. The Ordinance was replaced by Immigrants (Expulsion
from Assam) Act, 1950606 which came into effect on March 1, 1950. Constitutional framers
knew these facts. So Part II (Articles 5-11) is especially dedicated for ‗Citizenship‘. Article 5 to
Article 9 came into force on November 26, 1949. Article 6 especially deals migrants from
Pakistan and mention a deadline i.e. July 19, 1948. Article 11 empowers the Parliament to enact
the law to regulate the citizenship. By using this power, Parliament enacted the Citizenship Act,
1955607.
Post-Constitutional Law and NRC
During first census after independence in 1951, National Register of Citizens (NRC) exclusively
for Assam was prepared.608 In this way First NRC was prepared for Assam in 1951. Assam is
only State where NRC was prepared. Second census after independence was completed in 1961.
The Registrar General of Census in his report assessed that 2, 20, 691 infiltrants had entered into
Assam.609 Police started to take action and expel them. It was done during 1962-1964. Some
leaders of Assam and Pakistan started to criticize on the ground of harassment by police and no
proper representation after ‗Quit India‘ notice.610 Conference was held between Indian Home
Minister and Pakistani counterpart on April 7 –April 11, 1964 in New Delhi. But it was unfertile.
Pakistan threatened to drag this issue at international forum.
By using the power conferred by section 3 of the Foreigners Act, 1946, Central Government
made the Foreigners (Tribunal) Order, 1964611 on September 23, 1964. According to section 2 of
this ‗Order‘ the first and four Foreigners Tribunals were set up in 1964. It was mandatory to
appoint people who have judicial experience. Section 9 of Foreigners Act, 1946 has overriding
effect on Indian Evidence Act, 1872. Section 9 of the Act, 1946 provides that onus of burden will
lie over suspected foreigner. Due to section 9 and power conferred by Order 1964, Foreigners
Tribunals are very effective. In the case of Sarbananda Sonowal v. Union of India & Anr.2005,
Supreme Court accepted that procedures provided under Foreigners Act, 1946 and Foreigners
(Tribunal) Order 1964 are just, fair, reasonable and effective. Such procedures are constitutional.
India and Pakistan war in 1971
Awami League led by Sheikh Mujibur Rahman won the general election of Pakistan in 1970. But
this Party was not provided an opportunity to form Government. There was already tense
between East Pakistan (Now Bangladesh) and West Pakistan. Pakistan Government deployed
army in East Pakistan on March 25, 1971 and initiated operation ‗Searchlight‘. On March 26
Pakistan Army arrested Sheikh Mujibur Rahman and confined him in West Pakistan. Pakistan
606
Immigrants (Expulsion from Assam) Act, 1950 is available at:
https://assam.gov.in/documents/1631171/0/Annexure_2_.pdf?version=1.0&t=1444717496068 (Visited on August
22, 2018).
607
Citizenship Act, 1955 is available at: http://nrcassam.nic.in/images/pdf/citizenship1955.pdf (Visited on August
22, 2018).
608
White Paper on Foreigners‘s issue was published by the Home and Political Department , Government of Assam
on October 20, 2012 is available at: https://assam.gov.in/web/home-and-political-department/white-paper (Visited
on August 17, 2018).
609
Id.
610
Id.
611
Foreigners (Tribunal) Order, 1964 is available at:
https://assam.gov.in/documents/1631171/0/Annexure_6.pdf?version=1.0&t=1444717498000(Visited on August 22,
2018).
423
army started genocide, rape and other heinous crime in East Pakistan. Large numbers of people
from East Pakistan influx into Assam. They were not stopped on humanitarian grounds. Pakistan
surrendered on December 16, 1971 and new country emerged i.e. Bangladesh. Even after this
several Bangladeshi denied to return their country. Demography of Assam totally changed. Smt.
Indira Gandhi (India) and Mr. Sheikh Mujibur Rahman (Bangladesh) signed a treaty (Treaty of
Peace and Friendship between the Government of India and the Government of the People‘s
Republic of Bangladesh) in Dacca on March 19,1972. But nothing was written about illegal
migrants in treaty. India missed a golden opportunity. According to Indira –Mujib Agreement,
1974, all persons from Pakistan who migrated to India before 25th March would be citizen of
India and who came after Mach 25, 1971 would be deported to Bangladesh.
Indigenous people became bound to suffer a lot of problems.
Assam‘s agitation (1979-1985)
Problem related to influx of migrants into Assam was ignored during emergency. In 1977
general election was held but stable Government could not be formed. Mr. Hiralal Patwari who
was M.P. from Mangaldoi died on March 28, 1979. Bye-election was declared.612 Agitation
started on the ground that large number of suspected voters had been included in Mangaldoi‘s
voters list. All Assam Students‘s Union (AASU) which was formed on August 8,1967,
sponsored twelve hours general strike and demand detection, disenfranchisement and deportation
of foreigners. Assam agitation (1979-1985) started in 1979. During Seventh Lok Sabha Election
protest was growing very fast and due to agitation election could not be conducted for 12 seats in
Assam. AASU formed All Assam Gana Sangram Parishad (AAGSP) in August 1979 consisting
of several other organizations. After the general election, Indian National Congress (I) form the
Government and Mrs. Indira Gandhi took oath as a Prime Minister on January 14, 1980. AASU
President P. Mahanto wrote a letter addressed to Prime Minister of India on January 18, 1980.613
Through this letter concern was raised regarding presence of foreigners and influx of foreigners
into Assam from Bangladesh and Nepal. Request was also done for updating NRC. Up-to-date
NRC was also necessary for free and fair election in Assam. Following the letter, invitation was
sent to AASU for meeting in Delhi on February 2, 1980. AASU insisted for 1951 as cutoff date
while Government of India insisted for March 25, 1971 as a cutoff date. It means AASU was
saying that all foreigners who migrated into Assam after 1951 shall be treated as foreigners and
they have no right to reside in Assam while Government of India was insisting that all persons
who is residing in Assam up to midnight of March 24 should be treated as Indian and only those
persons who entered into Assam on or after March 25, 1971 shall be deported from country. This
meeting was without any result. Mrs. Indira Gandhi visited Assam and discussed with AASU but
there was no result. In 1983 people of Assam boycotted the election of Legislative Assembly. 614
Movement was going peacefully. But unfortunately Nellie massacre happened on February 18,
1983. It was very heinous. A mob of indigenous Assamese people killed 1800 suspected
612
Adrija Roychowdhury, "NRC row: What the Assam Accord of 1985 said about immigrants‖, Indian Express,
August 2,2018. This is also available at: https://indianexpress.com/article/research/nrc-what-the-assam-accord-of-
1985-said-about-immigrants-in-assam-5287009/ (Visited on August 22, 2018).
613
This letter is available at:
https://assam.gov.in/documents/1631171/0/Annexure_9A.pdf?version=1.0&t=1444717499000 (Visited on August
22, 2018).
614
This information is available at: https://youtu.be/l4_xiXgzCeY (Visited on August 20, 2018). This video is also
available at Rajya Sabha T.V. Channel.
424
immigrants Nagaon district. During such circumstances Mr. Hiteswar Saikia (Congress Party)
took oath of Chief Minister on February 27, 1983.
IMDT Act, 1983
Illegal Migrants (Determination by Tribunals) Act, 1983615 (IMDT Act, 1983) was enacted by
Parliament and it was applicable in Assam since October 15, 1983. Several provisions of this Act
were very controversial. So agitation started against this Act. Some controversial provisions were
– (1) it was applicable only to Assam. Although, there were provisions to apply this Act all India.
(2) Definition of ‗Illegal migrant‘ as define in section 3(1) (c) of the Act was controversial.
According to this provision March 25, 1971 was deadline to decide migrants, while Assamese
were demanding that 1951 (First NRC was prepared) must be deadline. According to them for
rest of India July 19, 1948 is deadline to decide migrants from Pakistan. So March 25, 1971 as
deadline for Assam is arbitrary and capricious. (3) According to section 8 (2) complain regarding
illegal migrant can be made only by that person when a migrant is found or resides at the place
within three kilometers from the place of residence of the applicant. (4) Such application must be
accompanied with affidavit sworn by not less than two persons residing within three kilometers
from where illegal migrant resides or found. (5) Such application must be accompanied by not
less than 25 rupees and not more than hundred rupees as prescribed by authority. Complain
procedures were very hectic, expensive and impracticable. (6) According to section 11, burden of
prove was on the prescribed authority to prove that other person is illegal migrant. In most of the
countries burden of prove is on illegal migrant to prove that he is legal migrant of legally
residing in the country. In case of Sonowal Case (I), 2005, Supreme Court observed that
practically this Act was defending illegal migrant. In this case the Act was declared
unconstitutional Agitation was continuing.
Tribunals - FTs (established under Foreigners Act, 1946) and IMDT Tribunals co-existed till
the Supreme Court stuck down the IMDT Act in 2005. IMDT tribunals would take cases of
suspected foreigners post March 25, 1971 while FTs handled cases between January 1, 1966, and
March 25, 1971. After Sonowal Case all matters pending before IMDT Tribunals were
transferred to FTs.
Differences between both Tribunals are –
(1) According to Section 9 of Foreigners Act of 1946 under which the burden of proving
whether a person is or is not a foreigner lies upon such person. Under IMDT Act owns
was on complainant to prove that the accused was an illegal migrant. This provision
creates difficulty to detect and identify illegal migrants.
(2) IMDT tribunals would take cases of suspected foreigners post March 25, 1971 while FTs
handled cases between January 1, 1966, and March 25,1971.
(3) In Sonowal Case (I616) IMDT Act was declared unconstitutional. So all matters pending
before IMDT were transferred to FTs.
(4) Foreigners Act of 1946 applies to all foreigners throughout India and IMDTAct applies
only to Assam.
615
Illegal Migrants (Determination by Tribunals) Act, 1983 is available at:
https://indiacode.nic.in/bitstream/123456789/1766/1/198339.pdf#search=Illegal%20Migrants%20(Determination%2
0by%20Tribunals)%20Act,%201983 (Visited on August 22, 2018).
616
425
(5) After the decision of Sonowal Case (I), IMDT Act is unconstitutional while Foreigners
Act is constitutional.
Assam Accord617, August 15, 1985
Mrs. Indira Gandhi was assassinated on morning of October 31, 1984. After assassination of
Mrs. Indira Gandhi, Mr. Rajeev Gandhi took oath on the same day. 8th General Election was
declared in 1984. But election in Assam was suspended due to agitation at large scale on the
issue of deportation of illegal migrants. In the presence of Mr. Rajeev Gandhi, Assam Accord
was signed by Home Secretary of Government of India, Chief Secretary of State of Assam,
representatives of AASU and AAGSP on August 15, 1985. It was Memorandum of Settlement to
solve the problem of influx of foreigners into Assam. Important provisions of this Accord are -
(1) three deadlines were fixed namely, (a) those foreigners who came before January 1, 1966 ,
they become citizen of India with all rights including right to cast vote. (b) those foreigners who
came to Assam on or after January 1, 1966 but before midnight of March 24,1971, shall be
detected in accordance with the provisions of the Foreigners Act, 1946 and the Foreigners
(Tribunals) Order, 1964. Electoral right shall be abolished and they cannot cast their vote. But in
case of registration of such detected persons according to Registration of Foreigners Act, 1939
and the Registration of Foreigners Rules, 1939 right to vote shall revived after ten years from the
date of detection (c) All person who came on or after March 25,1971 shall continue to be
detected, deleted and expelled in accordance with law. Directly or indirectly citizenship was
given to all foreigners who entered into Assam up to midnight of March 24, 1971. (2)
Government also assured for removal of difficulties in implementation of IMDT Act, 1985. (3)
Strike was call off. AASU and AAGSP assured for co-operation for development of country.
Government also assured for development of Assam.
After this accord, Legislative Assembly of Assam was pre-maturely dissolved and election was
held. Mr. Rajeev Gandhi knew that his party could not win the election due to long agitation
against Government. Even though for peace and development of Assam he sacrificed his
Government. Schedule of Legislative election was declared. AASU and AAGSP formed a
political party i.e. Asom Gana Parishad. This Party won the election and Prafulla Kumar
Mahanta who had signed the Assam Accord as a President of AASU took the oath as a Chief
Minister of Assam on December 24, 1985.618 He completed his tenure and held the post up to
November 12,1990. Due to demand of separate Bodoland State and violence for this, he could
not done anything on problem of influx of migrants
Citizenship Act, 1955 was amended w.e.f. December 7, 1985 and section 6A was inserted
whereby special provisions as to citizenship of persons covered by the Assam Accord was
inserted. By this Amendment provisions of the Accord regarding citizenship were inserted in
Citizenship Act, 1955. Certain modifications were also done in IMDT Act, 1983. After Rajeev
Gandhi no one take these issues seriously. After fall of Government of Rajeev Gandhi, stable
Government could not be formed in Center. This Accord was thrown into cold storage. Prafulla
Kumar Mahanta again won the election and completed the second tenure ( May 15, 1996 to May
17, 2001). But this tenure was also unfertile. Mr. Tarun Gagoi (Congress Party) was the Chief
617
Assam Accord is available at:
https://assam.gov.in/documents/1631171/0/Annexure_10.pdf?version=1.0&t=1444717500526
618
List of Chief Minister of Assam since 1987 is available at: http://assamassembly.gov.in/cm-list.html (Visited on
August 22, 2018).
426
minister during 2001-2016. His Party was ruling Party in Center during 2004 -2014. Up
gradation of NRC was not done wholeheartedly.
Law Commission, 175th Report, 2000619
Government of Mr. Atal Bihari Vajpaee tried to cause amendment in Foreigners Act, 1946.
Ministry of Law referred the issue of illegal migration to Law Commission for depth analysis
and suggestions on February 16, 1999. Law Commission submitted its Report in September 21,
2000 and suggestions for repeal of the Immigrants (Expulsion from Assam) Act, 1950 and IMDT
Act, 1983. It proposed the Foreigners (Amendment) Bill, 2000. The Citizenship (Registration of
Citizens and Issue of National Identity Cards) Rules, 2003620 was made by the Central
Government in exercise of the powers conferred by sub-sections (1) and (3) of Section 18 of the
Citizenship Act, 1955. But nothing was said about Assam.
Role of Supreme Court
Sonowal Case (I) 2005
Writ petition was filed in Supreme Court by Sarbananda Sonowal (he was former President of
AASU and in 2016 he took oath of Chief Minister of Assam) in 2000. He challenged the validity
of IMDT Act, 1983, influx of foreigners into Assam as a threat for sovereignty and integrity of
India and change of demography of Assam. Sarbananda Sonowal v. Union of India & Anr.
(Sonowal I case)621 was decided by Bench of three judges on July 12, 2005. In this case Supreme
Court observed following important points – (1) Every citizen of India has duty to uphold and
protect the sovereignty, unity and integrity of India under Article 51-A (c). So he is entitled to
file writ petition under Article 32. (2) Influx of foreigners at large scale would be amount
‗aggression‘ under Article 355. So it is duty of Union Government to protect the States from
such aggression. (3) IMDT Act is unconstitutional. For classification under article 14, only
‗intelligible differentia‘ in not sufficient. Such legislation must have a rational relation to the
object sought to be achieved by the Act and should not be arbitrary. IMDT Act which was
applicable only to Assam was protecting foreigners rather than helping the country to deporting
them. (4) Illegal Migrants (Determination by Tribunals) Act, 1983 and Illegal Migrants
(Determination by Tribunals) Rules, 1984 were declared unconstitutional. So all matters pending
before IMD Tribunals were transferred to Foreigner Tribunals. (5) Foreigner Act1946 would be
applicable to Assam also and matters shall be decided by Tribunals constituted under the
Foreigners (Tribunals) Order, 1964. (6) There is no reason to bifurcate illegal migrants coming
into Assam and rest of the Country.
Sonowal Case (II) 2006
To nullify the mandate issued by Supreme Court in Sarbananda Sonowal case on July 12, 2005,
UPA Government led by Mr. Manmohan Singh by using power conferred by section 3 of the
Foreigner Act,1946 made an ‗Order‘ i.e. the Foreigners (Tribunal) Amendment Order, 2006
which was published in official Gazette on February 10, 2006. By this Amendment, Foreigners
619
Law Commission of India, 175th Report, is available at:
http://www.commonlii.org/in/other/lawreform/INLC/2000/5.html
620
The Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 is available at:
http://nrcassam.nic.in/images/pdf/citizenship-rules.pdf (Visited on August 19, 2018).
621
AIR 2005 SC 2920.
427
(Tribunal) Order, 1964 was amended and it was provided that the Order, 1964 would be
applicable to whole of India except State of Assam. This Amendment was challenged by
Sarbananda Sonowal in 2006. Supreme Court struck down the Foreigners (Tribunal) Amendment
Order, 2006 in the case of Sarbananda Sonowal v. Union of India (Sonowal II case)622 on
December 5, 2006. Supreme Court criticized the Government for not protecting the Assam in
proper manner.
The Citizenship (Registration of Citizens & Issue of National Identity Cards) Rules, 2003 was
amended on November 9, 2009. Rule 4A and one schedule were inserted in The Citizenship
Rules, 2003 for updating NRC in Assam.
Assam Public Works v. Union of India & Ors. 2013623
Assam Public Works filed a writ petition in 2009. This writ petition is known as Assam Public
Works Petitioner(S) v. Union of India & Ors. Supreme Court has passed several orders in 2013.
Process of NRC update was started in Assam according to these ‗Orders‘.
Assam Sanmilita Mahasangha & Ors. v. Union of India & Ors Para 48. 2014624
In 2012 a writ petition was filed in Supreme Court challenging the Section 6A of Citizenship
Act, 1955 which was inserted in 1985 for implementation of Assam Accord. In the case of
Assam Sanmilita Mahasangha & Ors. v. Union of India & Ors., Supreme Court by using power
conferred by Article 142 issued guidelines for updating NRC which was first and last time
prepared in 1951. Eleven months were given and last date for updating NRC was January 1,
2016. Supreme Court issued these guidelines on December 17, 2014. Court fixed next hearing in
March, 2015 to note progress of implementation of directions issued by it.
Assam Public Works v. Union of India & Ors.2018625
Assam Public Works filed a writ petition in 2009. This writ petition is known as Assam Public
Works v. Union of India & Ors. Supreme Court has passed several orders. Recent order was
passed on 31July, 2018. Both drafts have been released under pressure of Supreme Court.
The Citizenship (Amendment) Bill, 2016626
This Bill was introduced in Lok Sabha on July 19, 2016 to give protection regarding citizenship
for Hindus, Sikhs, Jains, Buddhists, Parsis and Christians from Afghanistan, Bangladesh and
Pakistan.627 It does not cover Muslims from same countries. This is not only sectarian law but
622
Sarbananda Sonowal v. Union of India. This judgment is available at:
https://www.sci.gov.in/jonew/judis/28359.pdf (Visited on August 22, 2018).
623
All these ‗Orders‘ are available at: http://nrcassam.nic.in/sco.html (Visited on August 21, 2018).
624
625
This Order is available at: https://www.sci.gov.in/supremecourt/2009/16113/16113_2009_Order_31-Jul-2018.pdf
626
The Citizenship (Amendment) Bill, 2016 is available at:
http://www.prsindia.org/uploads/media/Citizenship/Citizenship%20%28A%29%20bill,%202016.pdf
627
Summary of The Citizenship (Amendment) Bill, 2016 is available at
http://www.prsindia.org/uploads/media/Citizenship/Bill%20Summary%20Citizenship%20%28Amendment%29%20
Bill,%202016.pdf (Visited on August 22, 2018).
428
also gross violation of Assam Accord, 1985.628 Two major amendment is proposed in the
Citizenship Act, 1955.
First proposed amendment – First proposed amendment is in the definition of illegal migrants as
defined in section 2 (1) (b) of the Act, 1955. By this amendment it is sought that persons
belonging to minority communities namely Hindus, Sikhs, Jains, Buddhists, Parsis and
Christians from Bangladesh , Afghanistan, and Pakistan who have been exempted by the Central
Government by or under section 3 (2)(c) of the Passport (Entry into India) Act, 1920 or from the
application of the provisions of the Foreigners Act, 1946 or any order made thereunder, shall not
be treated as illegal migrants for the purposes of the Citizenship Act, 1955.
Second proposed amendment - Second proposed amendment is in Third Schedule for relaxation
of residential period in India for these minorities group for getting citizenship of India by
naturalization. According to this Amendment, residential period or service of Government of
India is required for six years rather than eleven years.
This proposed amendment is violating the right to equality as enshrined in Article 14 of the
Constitution of India. It is being vehemently opposed by indigenous Assamese. They are saying
that it will create hurdle in deportation of illegal migrants.
Process of Updating NRC
Process of updating National Register of Citizens (NRC) has been started under the Citizenship
Act, 1955 and the Citizenship (Registration of Citizens and Issue of National Identity Cards)
Rules, 2003 which was amended in 2009 and 2010.629 Eligibility for inclusion in second NRC is
NRC 1951, electoral rolls, land records passport and permanent residential certificate etc. up to
midnight March 24, 1971. In case of birth after 1971 birth certificate and document pertaining to
one‘s ancestor are relevant.
Supreme Court has passed several orders in 2013 in Assam Public Works v. Union of India &
Ors. 2013 . Process of NRC update was started in Assam according to these ‗Orders‘.
In the case of Assam Sanmilita Mahasangha & Ors. v. Union of India & Ors. Para 48, 2014,
Supreme Court by using power conferred by Article 142 issued guidelines for updating NRC
which was first and last time prepared in 1951. Eleven months were given and last date for
updating NRC was January 1, 2016. Supreme Court issued these guidelines on December 17,
2014. Court fixed next hearing in March, 2015 to note progress of implementation of directions
issued by it.
Publication of NRC630
The Part Publication of Draft NRC was published in midnight of December 31, 2017.631
Complete draft of NRC was published on July 30, 2018. The total number of persons included in
the said Complete Draft NRC is 2,89,83,677 leaving a total of 40,70,707 as ineligible for
628
Sukanya Singha & Pranjal, ― NRC, anarchy and rule of law‖, The Assam Tribute, August 3, 2018.
629
This information is available at: http://nrcassam.nic.in/nrc-nutshell.html (Visited on August 18, 2018).
630
Publication of Complete Draft NRC on 30th July, 2018 is available at:
http://nrcassam.nic.in/pdf/Press%20Brief%2030th%20July%202018%20Final.pdf (Visited on August 18, 2018).
631
This information is available at: http://nrcassam.nic.in/publication-draftnrc.html and
429
inclusion. Out of the aforesaid 40,70,707 names, 37,59,630 names have been rejected and
2,48,077 names were kept on hold. After publication of Complete draft of NRC hue and cry
started and every politicians started to create rumors in society. Hon‘ble Mr. Justice Ranjan
Gogoi and Hon‘ble Mr. Justice Rohinton Fali Nariman passed an Order in case of Assam Public
Works v. Union of India & Ors632. on July 31, 2018. Court said that unless final NRC is not
published Court cannot take any action and on draft of NRC has been published on July 30,
2018. Any person whose name has not been incorporated in complete draft of NRC can file
claim and objection from August 30, 2018 to September 28, 2018.633
Influx of Illegal migrants and their settlement will be a security challenge for India. So there is
need to take immediate and solid action which must cover deporting and checking illegal
immigration.634
Suggestions
There are following suggestions-
(1) Hypocrisy is dangerous for county. Irresponsible behaviors of politicians are very
shocking. One of them is of Ms. Mamata Banerjee. Mamata Banerjee thrown her papers
at Deputy – speaker, Mr. Charanjit Singh Atwal at the time of speaking against illegal
migrants on August 4, 2004.635 After this she started to weep. According to her ‗There
will be a civil war, blood bath in the country‘ on July 31, 2018.636 This statement came
after non-inclusion of certain names in complete draft of NRC. Everyone knows that
NRC is being prepared under supervision of Supreme Court and time would be given for
filing claim and objection. Time would be provided for filing an appeal. Several names
could not be included due to non-filing of documents within stipulated timing. Politicians
are representative of public. They should not misguide the people for their vote bank.
(2) NRC must be prepared for whole country.
(3) NRC must be finalized very soon and its result must be implemented without any
discrimination.
(4) It must be prepared in such a way that there should be no chance of biasness. Every
person must be satisfied. Citizenship is very important for every person. It creates
relationship between person and State.
(5) Boundaries must be fenced and numbers of security personnals must be increased.
(6) Number of Foreigners Tribunals and presiding officers must be increased.
(7) Awareness must be created among public.
Conclusion
632
This Order is available at: https://www.sci.gov.in/supremecourt/2009/16113/16113_2009_Order_31-Jul-2018.pdf
633
This information is available at:
634
Mantoo and , Shahnawaz Ahmad , ―Bangladesh Illegal Immigration: Effects and Consequences‖ Volume
IV,Issue 3, Journal Of Eurasian Studies 49 (2012). This is also available at:
http://epa.oszk.hu/01500/01521/00015/pdf/EPA01521_EurasianStudies_0312_038-053.pdf (Visited on August 22,
2018).
635
Video of this drama is available at: https://youtu.be/Tc-ZthNre4I (Visited on August 20, 2018).
636
Id.
430
NRC is good things. It must be implemented all over India. Borders of India are very porous. Its
borders are attached to Bangladesh, China, Pakistan, Nepal, Myanmar, Bhutan, Afghanistan and
Sri Lanka. Border of India is disputed since inception of independence of India. First right over
resources of India is of Indian rather than infiltrators. Human right of any person is not absolute.
By violating the rights of one person, right of another person should not be protected. NRC
should be prepared and updated for whole country in proper manners. Security of India and
Indian should be first priority.

TWENTIETH CORRECTION Consti, Juris.I.L.ipc, Contract, Hindu Admin, Muslim Law

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1

KRISHNA MURARI YADAV

2 JURISPRUDENCE 123 -135

3 INTERNATIONAL LAW 136-149

4 INDIAN PENAL CODE 150-184

5 INDIAN CONTRACT ACT 185-206

6 HINDU MARRIAGE ACT 207-220

7 ADMINISTRATIVE LAW 221-231

37 Search for transparent and accountable procedure for 385-401

AFTER INDEPENDENCE, ACCESSION OF TERRITORY

PREAMBLE OF CONSTITUTION OF INDIA

importance and closely related to Govt. functions.

Article Doctrine of (1) A. K. Gopalan vs. State of Madras AIR1950S.C.174

Article 14:-Equality before law

According to Professor Dicey -Rule of law means

E. P. Royappa vs State Of Tamil Nadu & Anr on 23 November, 1973 Bhagwati,

Test of reasonable classification- Classification to be reasonable must fulfil two conditions-

(3) Devasan vs. Union of India, 1964.

(1)KakaKalekarCommittee, Article 340. (1955).

To find out two answer, we have to observe Balaji case.

(8)SECRETARY, MINISTRY OF INFORMATION AND BROADCASTING VS

Rights and Restrictions:-

(1)Art.19(1)(b)- Art.19(3) Right to assemble peacefully and without arms-

(1) RIGHT TO ASSEMBLE PEACEFULLY AND WITHOUT ARMS:-

(2) RIGHT TO FORM ASSOCIATIONS, UNIONS, & CO-OPERATIVE SOCIETIES

EXTERNMENT ORDER- EXTERNMENT ORDER is a order by which it is required to person

(4)RIGHT TO PROPERTY, Article,19(1)(f) &Art19(5):-

(5) RIGHT OF FROFESSION, OCCUPATION, TRADE OR BUSINESS,

to imprisonment, arrest or other physical coercion in any

Security equally products of the exercise of legislative power and

Kanwaljit Kaur Court).

shore, running waters, airs, forests and ecologically fragile

Difference between A.K.Gopalan(1950) and Maneka Gandhi Case(25 January 1978)

Serial A.K.Gopalan Vs. State of Madras. Maneka Gandhi Vs. UOI,

6 Personal Liberty‘ in Article 21 means Right to life is not confined to

A.K GOPALAN VS. STATE OF MADRAS TO MANEKA GANDHI VS. UOI

Topic A. K . Gopalan vs State of Other Leading Maneka Gandhi vs.

Personal According to Dicey, "personal Kharak Singh Personal liberty makes

principle of natural justice. principle of natural

unconstitutional but it is post decisional

KRISHNA MURARI YADAV, ASSISTANT PROFESSOR, DAGLC, PUDUCHERRY.

DIFFERENCE BETWEEN ARTICLE 23&ARTICLE 24

of helplessness on account of drought and scarcity

1982,18 People‘s Union Construction works are hazardous .So employment of

RIGHT TO FREEDOM OF RELIGION (ARTICLES 25 TO 28)

Article 25(All Article 26 (Religious Article 27(Person) Article 28

human being and

the State- Art.28(2) authorized to impart

S. Year LEADING CASES IMPORTANT POINT

First Cause.‖ "Religious denomination"

1982 S.P.Mittal vs. Union of India Constitution considers Religion as a matter

(Demolitition of Babari Masjid Government acquired the whole property

Oct. Dewasom Board performing puja in a temple and said that a

because it is inconsistent of Articles 14, 15,

(1) Right to conscience & profession,

(2) Right to life includes right to dignified

(3) Krishna Singh vs. Mathura Ahir (1981).

is not protected under Article 25 of the

9 TWO CHILDREN NORMS

S.N. ARTICLE 29 (1) ARTICLE 30 (1)

EDUCATIONAL INSTITUTIONS EDUCATIONAL INSTITUTIONS

language has a right to establish