Vasanthi Notes- Constitutional Law- I

There is not just a written, but also an unwritten Constitution. The words ‘secular’ and ‘socialist’
were absent from the text of the Constitution itself, but it was an unwritten principle of the
Constitution guided through ‘freedom of religion’, and ‘equality’.

Constitutionalism- it is a word that is capable of multiple meanings- the interpretative activity that is
expected to be neutral and objective, is driven by ideology.

Methods of interpretation are driven by ideological positions.

Why is the Constitution supreme?

It is not only supreme because of its authoritative value, but also because it is not made by one
group, it is given by consensus, there were people from all ideologies- reflects all forms of political
dispensations.

It is meant to be an inclusive document, relevant for everyone- and we have to find ways in which
we ‘negotiate’ with it- it marks a kind of a contract where we give ourselves the same freedom, it
provides to other people. It is a political document, not only a legal document. People are at the
center of the Constitution, beyond the idea of the state as the authority.

When we talk about natural rights or inalienable rights, are they pre-existing?

In the context of property, property rights were considered natural rights.

There was a series of judgements which invoked natural law to defeat the text of the Constitution.
This idea of ‘natural law’ was explicitly rejected when the text of the Constitution was so clear.
‘Reasonability of law’ is accepted as an unwritten part of the Constitution, the interpretations must
be ‘reasonable’.

CONSTITUTIONALISM

• The constitution is different than any other document because it was a social contract that
everyone agreed to. In the Indian context it also marked the beginning of the nation.
• 'Values' and 'principles' are hard to define. For instance, there isn't enough discourse about
cultural rights and what they mean.
• The terms that the constitution uses act as guiding principles for the direction in which the
lawmakers should go
• In constitutional law, you need to rely on the reasoning behind the judgement and how the
court decided a question.
EG: RC Cooper case deals with the bank nationalization. But when you use it you wont say
"RC cooper held that banks were to be nationalized." (Not relevant still) You use the reasoning
behind the interplay of constitution articles.
• The Constitution is meant to be an inclusive document that is supposed to be relevant for
everyone. It marks the mutual co-existence of different ideas. The drafting process was also an
inclusive process
Natural Rights
• Is there a difference between pre-existing rights and natural rights?
• Discussion around how after the freedom struggle all freedom fighters were not
automatically incarcerated. This is because till explicitly repealed the colonial laws were still in effect.
This is an interplay of constitutional and criminal law and how if one is convicted and the law is later
repealed can the conviction be undone retrospectively?
• The scope of a natural rights is way wider than the text of the constitution. So Natural law
was being invoked to undo the text of the constitution.
• So when we say the Constitution is supreme and then you apply the natural laws to undo
the text of the constitution then it defeats the purpose of the constitution
• The aspect of reason is imbibed in the interpretation of the constitution. In that sense, the
constitution interplays with natural law. However, a claim rooted in natural law will get rejected.

What is Constitutional morality-constitutionalism

- Constitutionalism is what precedes and defines a constitution - ideas of limited government,
accountable state, respect for the citizen, idea of an active citizenry, basic structure,
constitutional doctrine.

- Constitutional Morality albeit related to constitutionalism has a very different trajectory. The
trajectory of constitutionalism is talking about a long history of governance, not only
democratic governance. In its original idea- it had nothing to do with democracy, how we
manage to constitute the state, how it is created, arrangements between elites of the country
through which a government is formed. In a way constitutionalism precedes the idea of the
democratic state. There are many theories on how governance needs to be done and with
the growth of the number of nations- many have constitutions even when they are not
democratically elected. Is governance possible without a written constitution? What
Constitutionalism is seen as today is very different from how it started out (powers of the
legislature, executive, how the state is constituted etc.,). The initial role of the Constitution
had no role to play by the judiciary- was written in the name of the people (representing the
people)- legislature and executive. Now we associate constitutionalism with how the court
decides cases. Therefore, this shows that the idea of constitutionalism is far more than just
adjudication- it is only one aspect.

- Limited government- only by rights, but also the separation of powers. The way in which
judicial power has expanded is unprecedented today. The idea of a limited government, the
idea of democracy in a state that is accountable, and the mechanisms of accountability which
has to be written in as a binding document on the state- state is constituted by the people
unlike a state that continued in perpetuity from one state to another. How would the
relationship between the citizen and the state must be understood? The idea of an active
citizenry is key to constitutionalism- people see themselves as a participant in the state.
The state cannot say its more important than the people- even in an Emergency, the state
cant say that there is a need to protect the nation thus the state has to be prioritized. These
ideas are implicit in Constitutionalism- it precedes the Constitution and is over and above
the text of the Constitution.
- The text of the Constitution is not paramount, it is what is implicit in the text that is
important. The context and background to the text makes it significance, as the text by itself
means nothing.
- When we talk about constitutionalism in the context of comparative law? All constitutions
seem to be saying the same thing- judicial review, separation of powers etc.,- accepted
universally. This speaks to the idea that the idea of having a constitution to hold the
government accountable seems to be a popular idea across jurisdictions. The document is
not paramount, but what it signifies is. Why you are writing a constitution is more important
than what it says. One cannot understand how the text or why the text signifies a particular
set of things- and this is what constitutionalism aims to do. This shows that there are several
ideas associated with constitutionalism- an accountable and limited state (not just through
the document but the idea of the document is that there is limitation) that engages with the
citizens.

- Constitutional Morality is what the framers of the Constitution carried with them- it has
been criticized as reading something into the period which never did exist (Aditya Nigam).
Constitutional morality is not the morality of the constitution but the moral compass of the
framers of the constitution. It is a much more recent debate and narrower than the idea of
constitutionalism. It began to be used in a particular context to ask whether there is a moral
content in the constitution. The idea of why CM is relevant is that it is the values that are
carried by the framers of the Constituent Assembly. It was considered a 1) modern
constitution that has come 2) after a revolution and 3) was a momentous period for the
nation after independence- so there was a confluence of these three factors at the time of the
drafting of the Constitution. For the first time, a democratic country was being set up, an
accountable state was being sought- and none of these aspects had preceded the
Constitution in India. If the CAD is intended to be a tool of interpretation then not only the
text but the underlying values of the text become relevant

To understand this, CAD is randomly referred to at times with a quote from Ambedkar here
and there, but instead we should look at the CAD as a whole, as giving out one particular
idea and understand the underlying values of the CAD. CM is often cited by courts in a very
different manner. The morality we are referring to here is the way in which people are being
able to work together, despite differences and huge disparities between the way in which
they imagined the country. It would be living in a country despite those differences but not
to erase them. This can only be done by accepting certain processes.

Constitutionalism has been considered a radical idea, but CM is not a radical idea but a
pacific idea- where instead of preferring one set of values over another, it focuses on both
set of ideas being upheld. Different people have different values that they seek to achieve
but they must adhere to the adjudicative forms of the Constitution. Despite many CAD
members being socialists, they did not want to enshrine it within the Constitution- this
shows that no particular value is being promoted over the other. However, there is an idea
of self-restraint. In that sense, CM is an idea of how we are to be governed after the period
of revolution is over- to do that we have to sustain different values instead of pushing for a
particular one. The morality being referred to here is not the specific morality of any of the
framers- but the collective idea of the CAD- morality in the way in which constitutionalism
is arranged to accommodate so many different ideas. The Constitution is accommodative of
ideas- a carefully negotiated solution. For example, only discrimination in public spaces was
prohibited but it was left open for some element of compromise, as the Constituiton did not
attempt to enshrine something that would not be followed by the public. The CAD is not
 determinative and nor is it binding on courts, which is why there is a problem in translating
CM into a doctrine. The idea of a ‘sensibility’ as PBM uses, is relevant for us.

- Why do we need to understand the underlying values of the text of the Constitution
- We need a Contextual understanding- taking into account the historical-political-cultural
moorings-otherwise it will seem like "imposed constitutionalism"
- Understanding why/what is in the document -in order to harmoniously.
- Interpret it but not be bound too much by the text-purposive interpretation
- Constitutionalism as a mode of association
- As against substantive content- it is pacific-processual, restrained, pluralistic, responsibility as
against power-polyvocal.
- Sensibilities of the framers? Self doubt-regard-ability to work together. Importance of form-
an intangible political judgment and thus exemplifying constitutional morality.
- The Constitution was made possible by a constitutional morality that was liberal at its core.
Not liberal in the eviscerated ideological sense, but in the deeper virtues from which it
sprang: an ability to combine individuality with mutual regard, intellectualism with a
democratic sensibility, conviction with a sense of fallibility, deliberation with decision,
ambition with a commitment to institutions, and hope for a future with due regard for the
past and present.
- constitutionalism as a set of ideological sites that provide justification/mystification for
constitutional theory and practice
- Aditya Nigam approaches the constituent assembly from a different perspective. He points
to the different meanings that emerge if the text and the CA debates were read in the context
of their specific historicity. The understanding of the text as a liberal document needs to be
tempered with communitarian well being. He points to the fact that while his colleagues
thought that the creation of a nation-state would forge a homogeneous national culture, he
believed that amiable relationship between the two communities was the foundation of the
country.
- On rights and duties
- Constitutional rights as an integral part of constitutionalism-speaks to the relationship of
state and citizen
- Duties do not imply correlative rights-negative duties of not imposing harms-moral failure.
- The only right that seems to matter is that of the extremely rich not to be parted of their
wealth.
- Kannabiran –citizens duty to speak truth to power.
- Triadic ethical foundations and another way of reading fundamental duties.
- What we are seeing is an inversion of the relationship between state and citizen- and how
does it contradict CM and the entire project of drafting the constitution. Constitutionalism
asks you to look beyond the text of the Constitution, and we recognise that there are duties
in the Constitution, but we need to look at the context in which the duties were put in the
text, in the context of the Emergency.
- When we say that we need a harmonious reading of all provisions of the Constitution- the
duties must be in harmony with the Preamble, the FR, and other aspects of the Constitution-
the duties must not be privileged over the other parts and such an understanding would be
violative of the values of the Constitution, and CM.

READING: Two essays on rights and duties

 • The trinity of rights, duties and the DPSP.
• In the basic structure case, there is a lot of discussion on whether the preamble is in the
constitution and now there is a lot of discussion on whether or not it can be amended.
• Even if we take the proposition that a right is a right only if there is a positive and
enforceable duty on someone else to ensure it is enforceable.
• For the 1st 10-15 years the SC had a very narrow interpretation of rights as per which only
those are rights that can be specifically enforced, or/and are laid out it in the consti.
• The SC was very clear that the DPSP are not enforceable.
• Can enforceability only happen in the court of law? This will be a very narrow
interpretation of the term.
• The fact that you can gets a right enforced in court doesn’t mean the right doesn’t exist.
The constitution doesn’t need to be read in a manner that the rights and duties are necessarily
connected. You can read rights without placing the obligation of enforceability on the state.
• Thus, we come to the classification of rights as Negative and Positive rights.
• When we talk about the state having an obligation to do something, then the state has to
do it.
• Originally the SC said that the state can only have negative rights.
• The origin of natural rights comes in the context of reading only a class or group of people
capable of enjoying certain rights. This is in contrast to the view of rights under the Indian
Constitution which endows such rights to 'all people', and not a select elite.
• The human rights school shifts the entitlement of natural rights from persons to humans.
Earlier, women etc., were not considered to be entitled to natural rights as argued by the natural law
school.
• The Preamble is not an authoritative text but a great indicator or a guide to the
Constitution and what it means.
• The context at which the words socialist and secular were added to the Constitution, was
when there were socialists in jail, and socialist movements were being crushed by the State- even the
right to life was decided by the State with regards to who was entitled to it and who was not during
the Emergency. In place of rights, there was a protectionist attitude where there was no restriction
on what the State could do.
• There was a parallel drawn to the Nazi- Nationalist Socialism, where there were
Fundamental Duties being introduced on the Citizen under the DPSP which imposes duties on the
State. This was at the same time when the word 'socialism' was introduced and rights of free speech
and political dissent were blatantly violated.
• One argument that was considered was that they were Western notions, which do not align
with non-western Indian notions. An example of this is in the context of marital rape. The idea of
constitutionalism comes in with colonialism, with the successive legislations passed by the colonial
government where there was accountability and restraint on the authority (English model-
Parliament- elected representatives representing the will of the people- idea of parliamentarian
sovereignty which is reflected in the Indian Constitution as well). The Indian Constitution was an
amalgamation of several Constitutions with no link to each other- where there were provisions
borrowed from the USA and the UK, where in the former there was a deep distrust of the State,
while in the latter the State was highly regarded. Therefore, there is a need to bridge these gaps
instead of accentuating the differences, and the Indian Constitution is best understood when it is
considered as a confluence of various Constitutions and not a single Constitution, since there was an
attempt to locate India among modern sovereign democracies. The Preamble lays out the
sovereignty of the State and the power of the State to make its own decisions, giving the Parliament
the power or competence to make its sovereign decisions.
 • Is sovereignty compromised when we have to restrict FR?
• No, this is because the sovereignty of the people, and the State's sovereignty is only a part
of it.
• The political sovereignty is dependent on respecting the sovereignty of the people, and this
is the debate around the Emergency. Even during the Emergency, the State cannot claim its right to
protect itself, at the cost of the rights of the people. Instead, it should be accountable and bound by
fundamental rights as the Constitution cannot have a 'death wish', suspending the entire document
to protect the State. Therefore, even during the Emergency, certain basic rights have to be
respected.
• The strongest footing in the Preamble is the democratic setting, which is an arrangement
between the State and its people.
• The form in which the institutions are organized is not important, it is the values and the
principles of the Constitution which will guide the way in which it is to function. The question of
separation of powers is not important, but it is the values and principles that the individual
institutions aim to set out. For example, in SR Bommai, the SC laid out the form of a no-confidence
motion which is followed by all political parties, and such a decision is peculiar to the Indian
context. Even in the context of PIL cases, we do not consider it to have the same value as
precedents, therefore, the 'form' of the cases are sacrificed, but its purpose is not to serve as guiding
precedents but to solve the individual cases in their particular contexts.
• Irrespective of whether the Preamble is an authoritative text and whether it can be
amended, it lays down the values and principles of the Constitution, it gives an idea of the
relationship between the different parts of the constitution- distribution of power, rights, duties etc.
It also looks at rights not as constraints or restraints on state power but as rights in relation to the
people, with the use of 'socialist', 'socialist, equality, justice' etc.
• If we were to stay with the original interpretation of the constitution all the time, then we
will be stuck with the drafters' understanding of the issue. Instead we can interpret it as the fact that
the constitution was drafted by people who believed in the principle of inclusion. Eg: gender identity
wasn't an issue during drafting. But we can go ahead with the interpretation that the drafters were
people who believed in inclusion and wouldn’t want exclusion of a person based on their gender
identity.
• We have a written Constitution and a Parliament which is representative of the people.
There was a conflict between the parliament and the constitution.
• The way in which the consti is read is where the Indian authenticity comes, despite the
criticism that some major chunks of the consti are borrowed.
• Guiding principle for interpreting the consti: Don’t read the constitution as containing
principles in conflict with each other.
• Overemphasis on fundamental duties is not in consonance with the duties itself, which is
to abide by the Constitution. The subtext of 'do your duties, and do not ask for rights' is
unconstitutional in itself. Only the rights for the propertied class were being respected, implying that
the FRs are only for the elite few.
• The duties should not be read in terms of what the rights are, but it should be read in
terms of the other principles of the Constitution enshrined in different parts.
• The rights have meanings beyond the question of specific duties.
• Inherent, inalienable rights of people rather than unless it is enforced it doesn’t exist. It’s a
recognition of rights that needs the duties to be enforced, and it is not a pre-ordained recognition of
rights- which was what courts did in the first 20 years- a very literal positivist understanding of the
Indian Constitution.
 • The rights should be read for everyone and not narrowly. When the FR and DPSP are
brought in conflict with each other, the courts have come to the understanding that it should not be
read against each other, as it results in privileging one above the other. There must be an
interpretation that has place for both and not one over the other. Coming back to FD's, the duties
should take you back to the words of the Preamble, and must be read in consonance with one other
and not in conflict- and should not be privileged over FRs.
• The duties are about respecting other parts of the Constitution, and not override them.
• Kannanibran argues that the FR's, DPSP, Preamble must be read together with FDs. FDs
should not be privileged and FRs should not be considered as 'weakening the society'.
• The drafters of the Indian Constitution broke with the past, the older ideas of accountable
govt, institutions, and constitutionalism- to assure people their rights, which was absent earlier.
• The rights-language is trying to push institutions to work towards certain goals. For
example, the Civil Service is not only to support the State and maintain the structure of the govt, but
to serve the people.
• One problematic aspect of the FD narrative seems to be to negate rights, because it was
introduced during the Emergency. The authors argue that FD's and FR's should not make way for
one another and should not supersede FRs, but it should be read alongside one another.

The privileging of Part III should be balanced with the values and principles of the Constitution. Is
the power to amend the constitution subordinate to FRs? Isnt there a hierarchy between the various
parts of the Constitution in itself? There are principles and values underlying the Constitution, and
therefore, the entire discussion of the Constitution cannot begin and end with the FRs. The State
must endeavour, carry out reforms economic and social- one cannot pit one against the other, FR’s
must be read in harmony with other parts of the Constitution (including duties).

What is MKG’s position on rights and duties? "The very right to live accrues to us only when
we do the duty of citizenship of the world. Every other right can be shown to be an usurpation
hardly worth fighting for."….”Begin with a charter of Duties of Man and I promise the rights will
follow as spring follows winter”.

Gandhi privileged duties over rights. While understanding this, we must recognise that he was a
person involved in the freedom struggle, who did not believe in subordination and his
conceptualisation of ‘duty’ was not obeyance, it was instead, a duty to not follow an unfair order, a
duty to speak the truth, a duty to fight injustice and once a person has performed these duties, they
can claim their rights. It is not pre-ordained as these entitlements have to be earned through the
performance of duties as per Gandhi. The primary distinction between PM Modi’s statements and
Gandhi’s view is that the former focuses on obeyance.

On one level Gandhi argues that we have a duty to participate, a duty to not accept injustices but to
fight it, a duty to refuse an order that is morally unjust and this conceptualisation is different from
the Constitutional conception of FDs which is pacifist, and is meant to facilitate governance.

Gandhi- "I have received letters from Harijan friends and some have been to see me to. They feel
that now that power is in the hands of the people, there should be more than one Harijan minister
[in the cabinet of the government of the Republic of India]. According to the population ratio, the
number should be at least three, and they should be similarly represented in every department...I am
not ready to admit the correctness of all they say. My ideas in this regard are different...Rights spring
only from duties well done. Such rights alone are becoming and lasting...Holding the views I do, and
having acted on them and made others act on them over the last fifty years, I have no interest left in
fighting for personal rights. I shall therefore advise Harijan brethren that they should think only of
their duties. They may be sure that rights will follow fast on the heels of duties done."

The flipside of representation is that if a community has representation it has a voice. One cannot
just claim to be a representative of a community and sit in the Lok Sabha. Multiple people of the
BJP have just become token presences, and do not fight for their issues.

When we look at the kind of atrocities faced by the marginalised, how do we follow the Gandhian
route and ask people to stand up when there is an increased likelihood to be met by serious
violence? Unlike Gandhi’s view, there is a need for an interlocutor, and it becomes increasingly
difficult for the marginalised to fight for their own rights. The route to empowerment of a large
section of the Indian population is not through FRs at all, but it is the duties of the state.

Are hard-won rights more respected than rights granted from the top? This must be related to the
idea of constitutionalism. One fundamental idea under constitutionalism is the respect for rights, it is
more than the written text of the Constitution, but this respect is observed and practised- not only
by the State, but by the people. In UK, which has no written text, always believed that Rule of Law
exists because its practiced by everyone. Constitutionalism refers to the ideas and values of the
Constitution, not just the text. The enjoyment of the rights and the practice of the rights determine
whether constitutionalism exists in the country. The rights and duties depend on the manner in
which people participate, create an environment where rights are respected.

There is one idea of an ‘imposed constitutionalism’. The Indian Constitution can be seen as
something that is imposed upon us. This idea comes from countries that have been occupied-
Japanese consti written by American scholars, Iraqi written by UK scholars- written somewhere else
and ‘given’ to the people.

The idea of using a document to articulate claims is constitutionalism. The words ‘equality’, ‘socio-
economic rights’ etc., that we are using now, have been given meaning before the Constitution was
made. A charter that is imposing authority is made to ensure claims against that authority. The
institutions to facilitate these claims are also established.

Iraqi, and Japanese constitutions written by an occupying country are imposed constitutions.
Despite all of the flaws of the Indian constitution including universal adult franchise etc., it was not
drafted by the British. While there was a privileged few drafting the document for the rest of the
country, and there was no public discussion like other countries which are valid criticisms, what is it
that is giving legitimacy to the Constitution? Some scholars argue that it is this idea that it was not
the occupiers that drafted the Constitution. There was an attempt to make it a document that is for
everyone. There were contestations, with religious freedom and gender equality, but religious
freedom was upheld as it has a lot of ramifications etc., therefore freedom of religion was kept
notwithstanding its problematic implication. There was an engagement, a compromise, a
contestation and a consensus in the making of the Constitution. (Read Baxi’s article- Upendra Baxi,
Constitutionalism as a Site of State Formative Practices, 21 Cardozo L. Rev. 1183 (1999)- on the
origin of modern constitutionalism, which comes at a time of imperial colonialism. On the one
hand, there were the British who spoke about rights and on the other hand, they went about
colonising the entire world.)
Constitutional Morality: The Morality he’s talking about is to act within a very specific ambit, which
is a sign of pacifism. Ambedkar is a critique of the Gandhian idea.

A reductionist idea of constitutionalism is to abide by the Constitution. To the contrary, Ambedkar

argues that we have to accept the law, but it comes with the right to dissent, and the forms of
dissent must be constitutional. This is different from the Gandhian approach, which is to not accept
the law in the first place, and used passive revolution and agitation.

The idea of constitutionalism as a very pacific idea, separates the political from the legal.

The government has the right to claim our duty to abide by the law, when it gives the right to
dissent, and is transactional in nature. This is not simply a question of reading the Constitution, and
abiding by it. The parliament is not seen as a place where law is made, or a law-making body. It is to
represent people from all opinions- it’s a place for deliberation, and it is the quality of deliberation to
persuade the representatives for a law. It enables accountability of the government on a daily basis,
and does not allow overarching domination of the majority. This is called the principle of
‘responsibility’ in Ambedkar’s defense of the parliamentary form of the government. Through an
active citizenship, every person has a duty to engage with the law, in the transactional nature of
constitutional morality.

The Constitution should not be read as a document of power, governance and authority.

To understand constitutionalism, and how it engages with the question of sufferings, we have to
look at the question of Rights & Duties.

Where is the reference to the partition in the Constitution? It is there only in the provisions of
citizenship from Art 5-11, and should the citizenship provisions be read in the context of reality, and
should the decisions after independence and around the time, bind us or not? The context of
globalization and a corporate citizen, we have to look at the interpretation of corporate citizens.
Should the idea of citizenship be limited to national persons? This understanding of who is a citizen-
corporates, artificial citizens etc., where even inanimate objects such as deities claiming fundamental
rights, and in this should our idea of citizenship change.

Constitutional morality is a process-oriented understanding, and not focused on the outcome. It

looks at how the law was made, or the arguments behind a particular judgment and not its ratio.
Hence, we look at the debates of the Constituent Assembly, the context behind the constitutional
provisions. Even then, it does not fully account for suffering, and when we talk about fundamental
rights, who can claim these rights?

Art. 21 talks about the right to life, should it only talk about right to life of persons who are
taxpayers?

The way in which the Indian Constitution has been drafted has been eroded by a whole range of
ideas and changing contexts. It is important to look at the debate in the 1950s to 1970s, where the
state was committed to socialism, and social rights. After the Emergency, the government pushed
back and prioritized other aspects over rights.
FRs are understood as the freedom of an individual, and not just a class or a group that can be
enjoyed by many together. The first line of Art. 15 talks about the right being an individual right.

15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.—
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex,
place of birth or any of them. (These grounds are located in the individual)

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be
subject to any disability, liability, restriction or condition with regard to—

(a) access to shops, public restaurants, hotels and places of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or
partly out of State funds or dedicated to the use of the general public.

(3) Nothing in this article shall prevent the State from making any special provision for women and
children.

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

So is this the right of an individual, or is it a group right? How do we characterize these rights?

All the persons who are claiming that reservation is harming their individual rights, are they claiming
their individual right or group right under Art. 15?

The Indian understanding of rights is dominated by the Western idea and influence of individual
rights, instead of group rights. Art 15 (4) is not even considered a fundamental right, because it is a
group right. The entire operation of rights focusing only on the individual provides a class-based
understanding of FR. This is because the persons claiming reservation etc., claim it as a group right,
and not simply an individual right.

Upendra Baxi argues that the problem of approaching comparative constitutional law in an
unproblematic way, is to overlook the context behind the Constitutions and their drafting. The
context in which the Constitutions are written, and the struggles of the people behind the
Constitutions should not be invisibilized.

If a Constitution is in place without a struggle, it is an imposed Constitution. This is particularly

important in the context of discrimination, where courts often borrow from the American
jurisprudence of strict scrutiny, where courts believe it can unproblematically impose these in the
Indian jurisprudence without looking at the context behind it.

Does the context behind the idea of a citizen have any relevance? Are they available to just natural
persons ? There are serious roadblocks in understanding these rights, and extending them to
corporate but also artificial persons? What is this process of interpretation and where does this
interpretative process occurs, and here, citizenship becomes a fungible concept under Art. 19.
Do we see all of law as a product of movement between countries? Certain ideas are common across
jurisdictions and have moved from one to another. The idea of HR resonates across the world
beyond any national boundaries.

The idea of free-speech that has originated in the United States, is common across all countries but
must be conscious of the particularities of every country.

Constitutionalism is not solely original to one country, and there is a resonance to ideas across
borders.

There is a difference between individual and group rights? Art 15, 19, 25, 26 all of these talk about
both individual and group rights. This formulation is largely unique and therefore, the debates across
the world about predominantly individual rights and positive/negative rights have no place in the
Indian context.

At different points of time, different factors talk about determining the nature of the Indian
Constitution.

How does one use the CA debates? Those who want to use it to justify their own conclusions is
using it in a particular way. The purpose for which we read the history is important and that will
shape the way in which we read that history. The objectives with which we read the histories of the
Constitution dictate how we read them. There is no single way of reading the Constitution, and
there is no unproblematic approach. The context must be considered and the idea of looking at the
context is to simplify the understanding of the Constitution.

How certain groups are written out of the Constitution? Who gets excluded, why and where? If we
look at the claim of sovereignty of the Adivasi groups, are their voices represented, or do we
consider these groups only in the context of development.

Adivasi groups who are every keen on the 5th schedule, as it was claimed by the groups themselves as
they allowed for a certain way in these territories spread across different states were administered.
They are reading one part of the Constitution, which in a way is an exception to the Constitution-
which simply lays out the UTs and the States.

Our question of identities break up the concept of civic society.

The problem with comparative constitutional law is that it tries to construct a metanarrative which is
independent of the particular context. Therefore, there is a need to ground these metanarratives
within particular contexts. At the time of the drafting of the Indian Constitution, there were
indigenous and dominant groups in Australia who have entered into some kind of a ‘treaty’, but
there is no such treaty in India. Then do we look at the 5 th schedule as some form of a treaty. The
Indian SC is unwilling to accept that the 5 th schedule is a unique arrangement, and does not
recognize the sovereignty of these states.

Comparative constitutional law only provides one view, which must be located in the Indian
context. It is only at the stage of articulation and not acceptance.
Karst believes that “civic culture” is enwombed in a “national culture.” And to understand the latter
is to understand the American identity. The “national culture” comprises a web of a “great many
understandings and folkways--that is, meanings and day-to-day behaviors.” These are also
institutionally embedded in language (the primacy of English); family (“not to be confused with a
common definition of family, or a common understanding of familial duty”); religious belief (in
“some form” and with “varying degrees of intensity”); and a “future-orientation,” embodying “belief
in the ‘American dream.”

Cultures emanate from religion, practices (idea of free speech- integral to the idea of the American
society) it is not simply present in the Constitution, but is reflected and mirrored in the Constitution.
However, in India, the Constitution comes before the cultures are in place. Here, the question of
‘nation-building’ becomes important, as the cultures are absent in the society at large at the time the
Indian Constitution was drafted, which is in place post-the Constitution, unlike in the United States
of America. The task of constitutionalism then is to implement these cultures embedded in the
Constitution.

For Ambedkar, constitutional morality was an aspiration- at the time of the drafting of the
Constitution, he expressed apprehension on whether constitutional morality was a ‘natural
settlement’. The idea of constitutional morality precedes the Constitution itself, but it is an
aspiration.

In spite of our identities and differences, substantive equality of all persons was necessary. Without
the dignity of all persons, or some semblance of equality between persons constituting that society,
the society would perish.

Ambedkar pitches an allegiance to constitutional forms, rather than collapsing the domains of
distributive or retributive justice. He doesn’t attempt to cheat us by giving a ‘false’ assurance that
forms of constitutional morality will bring substantive equality- nor does he equate substantive
equality to constitutional morality.

Constitutional morality cannot be identified as secularism, or socialism. It is not a test, or a standard,

or focused on ends, it is a process or the means. We leave the ‘ends’ open, which requires us to trust
in the process, and its methods.

How do we relate constitutional morality to constitutionalism?

Constitutionalism is a very wide and popular category that has been used in various different ways. It
refers to the practice of the Constitution, the motivational factors behind the Constitution.
Constitutional Morality seems to be like a test, or a doctrine that is applied to achieve a certain
result, but it is propounded in the way in which we construe the mechanism or the process to
achieve the solution or the result. If the Parliament amends the Constitution, and there has been
proper deliberation, debate and voting, then constitutional morality is intact. CM and its relation to
Constitutionalism, is the former reflects one particular idea which is the significance of the practice
of the Constitution. The latter relates to the article on constitutional antecedents, which points out
the pacifist engagement with the text of the Constitution. The practice of Constitutionalism can
engage in various texts, even if it isn’t the text of the Constitution. The constitutional antecedents-
British charters were used to confer authority was a way to control the authority. The institutions of
states, irrespective of for what it was set up, but the manner it is in use is important for
constitutionalism. Both these concepts are meant to be ways in which state power has to be engaged
with. CM is required for the Constitution itself to be respected, a consensus in society where we
accept each other as equals- CM was never meant to reflect a particular value but the processes in
which society was organised and to allow for dialogue. The way in which the Indian SC has used it is
incorrect- as it attempts to build an argument or derive a legal principle of CM, when it is not meant
to be. Constitutionalism is a legal principle which includes interpretation, and requires the text to be
read in a particular way, but not CM.

Constitutionalism and Constitutional Morality

The morality that is being spoken about is to operate within a particular mechanism, which is very
pacifist. Constitutional morality means abiding by the constitution, to conform to it. What does it
mean to abide by the constitution? Merely saying that you should follow the law made by the
parliament, it’s a very reductionist understanding.

In Ambedkar’s constitutional morality, you have to accept the law which has been made, but you
have the right to criticize it and protest against it using constitutional forms. In that way,
constitutional morality is NOT a radical idea. It’s an idea not to overthrow the government. It’s
basically obedience to the law but on the condition that you have the right to criticize it
continuously. You need to conform to the form of the constitution. Parliament is a forum for
deliberation, where diverse opinions come together and try to persuade each other to accept the law.
It requires you to be an active citizen and question the government at all points.

Constitutional morality as a mode of association. CM is a very foundational and fundamental

concept to everything that has to be built upon the Constitution.

For Grote, the two central elements of CM were liberty and self-restraint.

Self Restraint and Liberty- Right based claims made by which group of people? Amb deeply
skeptical of agitational or revolutionary politics; distinguishing from MKG’s methods of
mobilisation entrenched in our nationalist history; Ambedkar believed in engagement with pre-
existing constitutional forms; accepting forms of punishment stemming from it; he chose to
participate in various institutions of colonial state for incremental solutions for the community that
he was representing. Ambedkar believed that the maintenance of democracy requires that we must
hold fast to constitutional methods of achieving social and economic objectives.

Separate electorates for depressed classes: solution for lack of representation within existing
constituencies; Ramsay mcdonald award made this possible, but Gandhi criticised this a lot, which
consequently led to the Poona Pact, wherein the separate electorate for the marginalized
communities was rescinded.

Methods of mobilisation to expand personal freedom(ambedkar): he started moving towards

popular forms of mobilisation (his resignation); organise mass conversion in mahar community (to
buddhism); confrontational politics and populist mobilisation -- problem in how to understand
Ambedkar’s legacy then. He started to prefer agitationist methods in later stages of his life.

How do we understand the word ‘sensibility’? For the framers of the Constitution, it is an idea of
mutual trust and respect, irrespective of their differences. This is because the fundamental
understanding is that everyone is legitimate and valid. The sensibilities that must be developed
include the idea of acceptance and not just tolerance of diversity, not being threatened by
differences, the idea of the Constitution as a seamless thread, a constant struggle between
substantive equality and constitutional morality- one cannot put forth a particular legislation without
persuading the others- there must be acceptance in the form of constitutional morality. This tussle
between what one wants to put in the Constitution, and the other person would accept, and the
tightrope between being inclusive and not trying to appease the ‘other’.

The Constitution is not just a document that embodies belief, faith in the institution but also
accepting the ‘other’. The underlying idea is that it is not revolutionary. When we look at
transformative constitutionalism, CM is the opposite- CM is not transforming anything, or changing
anything- it is in a sense maintaining status quo- there is a continuity in the sense of the institutions.
There is no attempt to break with the past, but it is an attempt to make the institutions to perform
more democratically- the rights were not seen as central to the Constitution, but it was the ‘action
program’ of the states when it came to individual rights.
Even if we want to question the process, we have to come to an ‘acceptable’ process and focus on
reforming the process.

It is argued that a conception of rights can only bring rights to recognition. If there is no recognition
of people as capable of participating in governance,

In Indian constitutionalism there is an entire part devoted to the structures of govt which was just a
continuance of the past.

The big caveat in continuity is that all of this will happen in continuation of these rights.

Aditya Nigam

Nigam has a very different take, when compared to the other readings. His position must be
contrasted with the constitutional morality discussed in other readings. The conception of ‘morality’
focused on the relationships between the drafters of the Constitution, and focused on not just the
philosophy (intellect, rational, logic) of the Constitution, but there is an element of emotional
understanding (fraternity- bond between them). Nigam brings out certain unpleasant truths of the
CA drafters, how Muslim League members were treated, which resonated with the unfolding social
reality at the time. For instance, the Muslim League members - even when they raised democratic
questions were received in the context of their history, the power-sharing arrangement between the
different political parties, representation of different communities and how it helped to stall
decisions being taken, all of this came into play when ML asked for representation.

The original understanding of ‘minority’ is not just religion, it focuses on educational institutions as
well (due to Christian missionaries), therefore, protection of the minorities comes in at various
levels- educational institutions and business interests. However, at the time of the drafting of the
Constitution, the ‘minority’ comprised of the Muslims and the SC population, and the CA drafters
tried to avoid the SC population joining the ML. Even Ambedkar came because of the entity formed
between Dalits and religious minorities. That was the combination that was needed to be broken up.

There was a fear that if we operate in the way federalism operated before Independence, it would
lead to a stalemate. This is different from the situation in the US, which is considered to be the
Bastion of separation of powers, one of the critiques is the stalemate b/w the legislature and the
executive. This is not the rule of law, when we talk about the balance of powers. So we deliberately
did not have a system like the United States. These were choices that we had to make at the time of
drafting of the Constitution, which was made understanding our own reality, and understanding the
kind of minorities that we have.

When we understand constitutionalism as an ideology, which influences the way the text is to be
read- the environment in which the Constitution was written, we look at the various factors that
influenced the drafting of the text.

When we want to interpret the Constitution, should we interpret it in a way that gives effect to the
transformative idea or of continuity. Nigam’s reading is neither looking at ideology, nor is it
assuming that the CA proceeded on an amiable relationship- it points out the differences with which
the CA members were working with, and also the notable silences in the CA. Even with regards to
the gender question- we have only around 19-20 female members- there were silences. However, it
was one of the few Constitutions that guaranteed equality at the time of its drafting itself. The
absences included the absence of ML members, but at every point of time, there was a constant
effort to proceed considering they were members of the CA. Ironic how the ML members who were
present were heckled, but they sought to make rules inclusive of everyone- this shows the
multiplicity of meanings arising out of the Constitution, if we look at its history. The idea of multiple
meanings is something we have to look at, this is because there is no single meaning arising from
Constituent Assembly debates. The historical and political settings of the Constitution must be taken
into account- this also holds true for comparative constitutional study.

The idea of the CA as an event is a different idea from looking at the philosophy that has influenced
the way in which the Constitution was written. It points to other things that must be taken into
account when we examine the drafting of the Constitution. For example, if we look at who is a
minority in India, and how do we define? There is one position which is an anxiety that we must not
break up the union, and there must be a centralized union- but reading it as a federal document goes
against the way in which the CA drafters envisaged the country. Once the nation is put together,
there will be a homogenous national culture that emerges once the country is put together. Gandhi
believed it was amiable relations between communities that will shape the country, but the other
drafters believed that once a nation is created, the communities will develop amiable relations.

The reason why we are arguing that each of these meanings are equally important- it is because we
are trying to come up with meanings which may be equally valid. The only interpretation is not the
dominant interpretation at one point of time- the idea of a Constitution belonging to everyone
necessarily means that there will be multiple meanings coming in conflict with each other.

Federalism is certainly an idea that wasn’t strongly entrenched at the time of the drafting of the
Constitution due to various historical reasons, and there are many who argue that the Constitution
should work in a federal manner, and some who argue for a central union. There are multiple
meanings to the Constitution, and when we interpret federalism, minority rights, equality and non-
discrimination, we refer to multiple ideas and not only one single idea. The interpretation of the
Constitution keeps changing, as its text is open to multiple meanings, philosophies and
interpretations, which are dependent on the context.
The question of citizenship was deeply contested. There exists a provision in the Constitution with
respect to citizenship, which gives the Parliament the power to disregard other Constitutional
provisions and make or amend any law pertaining to Citizenship. Constitutional Morality does not
allow us to look at the will of the majority to be more important than other aspects of the
Constitution.

Citizenship

Section 11. Parliament to regulate the right of citizenship by law.—Nothing in the foregoing
provisions of this Part shall derogate from the power of Parliament to make any provision with
respect to the acquisition and termination of citizenship and all other matters relating to citizenship

The argument around citizenship is that it is the right to all rights. In that context, why is citizenship
not a fundamental right? The reason is found in the conflicts in the CA Assembly as to how
citizenship is to be conferred and to whom. The idea of ‘self-doubt’ in PB Mehta’s Constitutional
Morality (Self conscious that they were taking decisions under conditions of great uncertainity and
understood mutual vulnerabilities) was the reason due to which the CA conferred the power to the
Parliament, to define and make provisions regarding Citizenship at a later point of time.

Article 5- Citizenship at the commencement of the Constitution—

At the commencement of this Constitution, every person who has his domicile in the territory of India and— (a) who
was born in the territory of India; or
(b) either of whose parents was born in the territory of India; or
(c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such
commencement, shall be a citizen of India.

-Citizenship by birth (jus soli)

-Citizenship by descent (jus sanguinis)

These underlying principles, in particular, jus sanguinis have seen a history of exclusion, where
people have been denied citizenship because their parents were not citizens of the country. The jus
soli principle or the jus sanguinis principle is a principled understanding. However, the reading of
the CAA shows a very unprincipled arrangement of citizenship, where it excludes one particular
country, Pakistan, and the rationale behind this is unprincipled. Would this not seem like an obvious
violation of Art 14? These have remained, and has not been declared unconstitutional- the idea of
irrational emotional sensibilities and a sense of ‘betrayal’ that the drafters of the Constitution had at
that point of time has resulted in this.

The citizenship provisions show that writing out something in the text of the Constitution does not
suffice.

6. Rights of citizenship of certain persons who have migrated to India from Pakistan.— Notwithstanding anything in
article 5, a person who has migrated to the territory of India from the territory now included in Pakistan shall be
deemed to be a citizen of India at the commencement of this Constitution if

— (a) he or either of his parents or any of his grand-parents was born in India as defined in the Government of India
Act, 1935 (as originally enacted); and
(b) (i) in the case where such person has so migrated before the nineteenth day of July, 1948, he has been ordinarily
resident in the territory of India since the date of his migration, or

(ii) in the case where such person has so migrated on or after the nineteenth day of July, 1948, he has been registered
as a citizen of India by an officer appointed in that behalf by the Government of the Dominion of India on an
application made by him therefor to such officer before the commencement of this Constitution in the form and manner
prescribed by that Government:

Provided that no person shall be so registered unless he has been resident in the territory of India for at least six
months immediately preceding the date of his application.

The ordinary meaning of the word ‘migrant’ is someone moving from one place to another, it
doesn’t belong- belongs to Pakistan migrating to India, through this, it already created a layer of
individuals who are not ordinary residents. This gave rise to legislation on Illegal Migrants.

Article 6, gives a go-by to the jus soli principle and focusses on descent. The significance of the 19 th
of July, it comprised of Hindus and Sikhs migrating from Pakistan in the first wave of migration, and
conferred ‘deemed citizenship’, and for the persons who migrated after the aforementioned date
“certain procedural conditions are laid down.

7. Rights of citizenship of certain migrants to Pakistan.—Notwithstanding anything in articles 5 and 6, a person

who has after the first day of March, 1947, migrated from the territory of India to the territory now included in
Pakistan shall not be deemed to be a citizen of India:

Provided that nothing in this article shall apply to a person who, after having so migrated to the territory now included
in Pakistan, has returned to the territ, it comory of India under a permit for resettlement or permanent return issued
by or under the authority of any law and every such person shall for the purposes of clause (b) of article 6 be deemed to
have migrated to the territory of India after the nineteenth day of July, 1948.

Article 7, refused citizenship to all persons who failed to receive a permit to permanently settle in
India, implicitly referring to Indian Muslims. Through these provisions, there was already a hidden
distinction based on religion, without it having any mention in Art. 6 & 7. It reflected who we
consider ‘deserving’ of citizenship, and who we consider ‘undeserving of the notion of citizenship.
Right at the beginning itself, there was an intention to discriminate on the basis of religion.

The idea that we have tried to propose why constitutionalism is important to understand the
constitution is demonstrated here in the citizenship provisions. On the one hand, we are saying that
there is no active involvement of the person in determining if a person should be a citizen or not-
through birth or descent. On the other hand, the only principle that shows involvement is domicile-
which involves an intention to reside. There were also certain historical events that determined the
date and time one moves from one boundary to other. With conflicting provisions like this, how do
we determine citizenship?

In a sense, we are moving away from the jus soli principle, wrt what is happening in Assam, and
how provisions of citizenship do not give any sense of an inflexible rule or a single way of looking at
the Constitution.

Three dominant ways of interpreting the Constitution

Originalist interpretation
Textual interpretation
Purposive interpretation

The most important aspect is the context in which the text is to be interpreted, more than the text
and the legislative intention. Even if we look at the Originalist understanding, it was clear that there
was not just one understanding of citizenship and there were multiple disagreements regarding this,
and there was no single interpretation. The multiple meanings that are emanating from the originalist
understanding must be acknowledged, and all framers did not simply advocate one single
interpretation. While there was no explicit mention of religion, it is obvious in its drafting.

From the judicial interpretation, it largely decides on the basis of individual cases before it. One of
the most interesting cases was the Central Bank v Ram Narain:

“[I]n October or November 1947, men’s minds were in a state of flux. The partition of India and
the events that followed in its wake in both Pakistan and India were unprecedented and it is difficult
to cite any historical precedent for the situation that arose. Minds of people affected by this partition
and who were living in those parts were completely unhinged and unbalanced and there was hardly
an occasion to form intentions requisite for acquiring domicile in one place or another. People
vacillated and altered their programmes from day to day as events happened. They went backward
and forward; families were sent from one place to another for the sake of safety ... No one, as a
matter of fact, at the moment thought that when he was leaving Pakistan for India or vice versa that
he was forever”

The intention to acquire domicile was not only difficult to establish but also seen to be
unreasonable, as it sought to establish rational and deliberate intent in a situation dominated by the
raw emotions of fear and insecurity. All these—domicile, intention to permanently settle, and the
meaning of migration—became points of contention in the case law.

This particular understanding of looking at the movement during the Partition not explaining a well-
thought out plan but a temporary migration. The court was unwilling to assume that just because
you are a resident in a country, there is intention to exist permanently, as the extensions have been
sought for brief periods of time (Louis de Raedt v. Union of India).

Does a passport indicate the intention to reside in India?

The courts held that the passport does not indicate anything as the people were in a flux.
Around the time of the Partition, people often had to acquire a Pakistani passport in order to return
to India. In some cases, such as State of Andhra Pradesh v Abdul, the issue was that was the possession
of a passport of a different country, when the person has a business and is very much involved in
the local community has an intention to reside? In this case, the court took the view that passports
were not conclusive evidence of the person having voluntarily obtained Pakistani citizenship or of
having renounced Indian nationality.

This interpretations of the court shows that there exists legal categories that are created by the law
(art. 6, art. 7 and dates specified in them), and that the judicial position doesn’t always engage itself
with the legal categories and looks at the reality of the cases themselves.
Two ideas of citizenship-
Documentary Citizenship: In terms of possession of documents
Active Citizenship: In terms of participation.

One cannot understand the ideas of citizenship simply based on the legal categories created by law
as to when one arrived or left India, we have to look at other factors as well.

Corporate Citizenship (RC Cooper): On what basis are corporates considered citizens? Is it domicile,
is it active citizenship?

It is to protect rights. When we look at rights of equality (14) and life (21), and we are still willing to
extend it to non-natural persons, can we use this understanding with reference to all questions of
persons or only non-natural persons?

In one case, before an FT the question that arose was that- can the court of law take into account
human emotions and the like in making decisions about citizenship. Her claim was that this is where
she belonged because she believed that this was the place she belonged.

In the context of article 6 she was not eligible for citizenship. Now should we read the article in the
context of the CA assembly debates and what was the idea of the constitution drafters for people
like her when drafting article 6.

It would be irrelevant if you took the strict interpretation of domicile. Her domicile would be the
domicile of her husband.

Are the tribunals expected to enforce the constitutional provisions or are they expected to make a
very technical, legal, understanding of the foreigners act. Because the idea comes from consti
principles.

Baxi’s subaltern constitutionalism is relevant here. He says that instead of rights what is important is
taking suffering seriously. Should the question of livelihood and the suffering faced by the woman
come in determining whether she was a citizen- a woman who made a claim of belonging and
entering into the judicial discourse, come into consideration. The Tribunal pronounced her guilty
but gave a shorter sentence.

One way of understanding law is the categories of law and rules that are created- but to what extent
is the law really able to capture the areas of citizenship which involve questions of livelihood,
desperation, temporarility, suffering and belonging. How much do these ideas influence legal
categories? This is where judicial interpretations become important as we see courts being able to
move beyond these legal categories- the role of the court is to accommodate these constitutional
principles and consider factors specific to the case.

The reading then moves to the question of Assam, we see how the question of citizenship is
influenced by political factors.

There were only a few legislations that were struck down because it was not properly implemented-
when the law was created IMDT was largely inefficient – it was later struck down in the Sarbananda
Sonawal case.
Citizenship as a marker of organised rights, and a conception of community, is now based on
documentation. The shift of rules indicative of changes in principles. Rules made by statute are
moving away from the Jus soli principle.

There are some rights laid down for persons, and some for citizens, so can these two words ‘citizen’
and ‘person’ be used interchangeably?

The shift to jus sanguinis focussed on proving the lineage to claim citizenship, and the fact that the
parents were Indian citizens would result in many being stateless. These two words are used very
interchangeable, but they are starkly different ideas.

Person: It is not territorially located. It is a broader idea than the idea of a citizen. Rights and dignity
of individuals independent of national status. It is a highly individualistic notion. While one may be
inclined to the idea of personhood over citizenship, one must be aware of the problems associated
with personhood.

Citizen: It is territorially located. It is a narrower idea than the idea of a person. It is the right to have
rights (NJG argues that it is better to use ‘personhood’ as the idea of citizenship should not be
associated with the Constitution, as it is for all of us). It is not individualistic, but instead it is a
membership of a larger group or community. The citizenship rights cannot be enjoyed independent
of others, but it is through a membership of a group.

There are certain problems associated with citizenship: The word ‘belonging’ connote sharing a
particular culture, then what happens to the people who do not share a particular culture, or are
asserting a different culture- so would they not be part of a uniform homogenous culture. In this
sense, the question of whether there are any preconditions to citizenship, including religion or
belonging- which is used in the CAA, where we are giving citizenship to people from Afghanistan,
Bangladesh etc., simply because they belong to the majority religion Hindus, but have no other
commonality. Through this, we are not even foregrounding persecution, we are foregrounding
religion- and for the ones who do not share the same religion, they have to prove their citizenship
through some other way.

What is the relationship between the terms ‘people’ and citizen?

In 1990, the U.S. Supreme Court wrote, in a case called United States v. Verdugo Urquidez, that the
Constitution’s protections of “ the people ” and its protection of persons are not coextensive. “The
people, ” the Court said, refers to a narrower class of protected subjects than persons.

“ The people”, refers to a class of persons who are part of a national community or who have
otherwise developed sufficient connection with this country to be considered part of that
community.

This is a view of the “ people ” as distinct from “ persons, ” who, the decision suggests, are simply
human beings, irrespective of any relationship to the political community they might have.

The idea of people does not have any relationship with the political community, unlike citizenship.
Citizenship is tied with the political community.
Citizenship is defined before state in the Constitution, and is not present in part III of the
Constitution, so does it show it is not as important as part III (FRs)? Does its inclusion before
fundamental rights, add it as a precursor to claiming the FRs? What does it signify?

Part III starts off with the definition of State. By separating the State and citizenship in two different
parts, can we interpret part III as standalone without any reference to citizenship? Can we look at
obligations and duties of the State, irrespective of whether it is citizens making the claim or persons?
Most constitutions do not even define FRs at the beginning, but lay out the accountability of the
State. The problem with the Indian Constitution is the privileging of the idea of citizen, and the
demonstration of whether one is a citizen to claim FRs. In most PILs or cases before the court
looks at the accountability of the State, and not the identity of the petitioner- as the private rights of
the individual parties are not in question, it is the constitutional remedy in question. The definition
of ‘state’ being more significant and the inclusion of various authorities within state, prioritises the
accountability of the state and not who’s (the status of a citizen or a person) fundamental rights is
being affected. If one is able to argue that what deserves priority is not the citizen, but the acts of
the State- if we can turn it towards the State, then the rights associated with citizenship can be
bypassed.

Governments often seek to disclaim control over certain territories in order to disavow
constitutional responsibility. Take Guantánamo, for example: Is Guantánamo territorially in the
United States? The U.S. government has tried to maintain that it is not within the nation’s territory
in order to support the claim that detainees held there are beyond the reach of the Constitution

Where is the state drawing the legitimacy to hold people in areas outside the foreign territory? The
idea of personhood turns the gaze on the individual where we ask the individual’s rights, status etc.

Sarbananda Sonowal v. UOI (2005) 5 SCC 655 (Assam Accord) IMDT said the burden of proof was
on the State, SC struck down the IMDT Act, violative of Article 14 of the Constitution to the extent
that the exception was based solely on geography rather than any substantive connection with the
object and policy of the Act. The question that concerned the Court was with regards to the
constitutional validity of the Act and especially the question of its applicability only to the State of
Assam, thus creating a state-specific exception to a national law. Judiciary imputing a motive to a
legislation, the act specifically seemed to have been designed to protect and shelter illegal migrants
rather than to identify and deport them. It fails to realize the objective of the Act which was to
identify and deport illegal migrants. Was it a federal principle where the state would have
expectations from the federal government?

In Sarbananda Sonawal, he claims to be a citizen and was not harmed directly by any action of the
state, nor were his rights violated. His personal rights under Art. 14- his citizenship rights, were not
infringed so does his citizenship rights extend to the citizenship rights of others. When we use the
term horizontality- is it a right of ‘others’ against the state- can one person report another to be an
illegal migrant. Is it an arbitrary process to ask the citizens to back their claim against another?
Usually it is the citizens that claims their rights against the state, but when the state turns and asks
the citizens to prove their citizenship, the relationship is turned around. Here, his locus behind the
case was not questioned, and the role of the SC raises fundamental questions of whether there is
actually a difference between citizenship and personhood. Bosniak argues that personhood is
promising more than what it delivers and the Sarbananda Sonawal case is a perfect example, as
Article 14 is available to all persons and not just citizens.

Para 29 gives a good understanding as to why the IMDT was sought to be struck down- The plea
was that the Act was ultra vires the Constitution, because it made it ‘impossible for citizens who are
resident in Assam to secure the detection and deportation of foreigners from Indian soil’. Its legality
was brought into question because though the professed aim of the IMDT Act was to facilitate the
detection and deportation of illegal foreign migrants in Assam, the procedure prescribed here did
not conform to the Foreigners Act 1946, which is applicable to all foreigners throughout India. An
exception had effectively been made for non-Indians who had entered Assam clandestinely after
1971 and were alleged to have brought about a change in the ‘whole character, cultural and ethnic
composition of the area”. Such migration, it was claimed, had the potential to cause internal
disturbance, and should be treated as aggression under Art. 335 of the Constitution, which binds the
Union to protect States against such aggression. It identified the movement of ‘migrants’ as an act of
invasion. This judgment was criticized as a violation of the fundamental principles of international
law- with respect to movement of migrants being an act of invasion. The use of Art. 335 is
extremely problematic as it harmoniously interprets two completely unrelated constitutional
provisions- Art. 14, and Art. 335. The precedential value of this case is brought into question, as the
case did not rely on any previous judgements on Art. 335, and the SC merely attempted to find
support for his argument by invoking a completely unrelated provision.

Is the idea of State and Article 12 really relevant in this case?

The question of state becoming relevant is important in those cases were we are trying to make
some argument against non-state actors. Do FRs extend to not just states but also non-state actors.
There is a need to move beyond the categories of ‘persons’, ‘citizens’ and state to look at the scope
and breadth of FRs- we must look at the ‘actors’ question.

The ‘Actors’ question should not be confined to persons, citizens and state, and these concepts,
albeit important, should not curtail the scope of FRs. There are some cases, which looks at whether
the actor falls into the definition of State under Art. 12 to enforce FRs, if it does not, the case is
dismissed. While citizenship is not a part of Part III of the Constitution, and the State is the first
article in Part III, why are citizenship provisions not a part of FR’s and what does it mean? When we
say state is a part of FRs does it mean FRs are only against state and state instruments and agencies,
and against nobody else? Can we claim FRs violations against corporates? Nothing in Art. 15 shows
that FRs can only be alleged against the State. The purposes behind which we are reading the
definition of state, and its interpretation, must be used to answer this question. The entire purpose is
destroyed when we only confine the assertion of these rights against the states and not non-state
actors.

Even prisons are now maintained by private contractors and not states, then what kind of rights are
available against these contractors, if we move ahead with this narrow conception of asserting FRs
only against the State.

Why Preamble, FR’s, FDs need to be read together, when we consider the judiciary not a part of
State, especially when we have entrusted the enforcement of FRs to a body which is not even a
State?
Nothing in Art 14, 15 prevents the State from making any law with respect to any FR- it has the
power to make a law wrt reservations in the private sector, but it is barred by political will. Through
privatising transport, the State took away the rights to business of private parties.

Assam Sanmilita Mahasangha v. UOI - Decided in 2014

Section 6A - Origin of attempt to identify or send out persons who could be illegal immigrants, a
tribunal had to be set up to identify these people.

Section 6A was challenged on three levels:

• The statute is not designed correctly, and hence should be struck down on the
grounds of arbitrariness. (Internal Statute Challenge)
• The Statute violates a particular fundamental right in the constitution
(Constitutional Challenge)

• It violates the basic premise and the fundamentals of the constitution (Basic
Structure Challenge)
13 grounds were raised challenging Section 6A of the Citizenship Act
(i) Whether Articles 10 and 11 of the Constitution of India permit the enactment of
Section 6A of the Citizenship Act in as much as Section 6A, in prescribing a cut-off
date different from the cut-off date prescribed in Article 6, can do so without a
"variation" of Article 6 itself; regard, in particular, being had to the phraseology of
Article 4 (2) read with Article 368 (1)?
Whether this provision should be seen as a plenary power that can do anything? But there are
certain fundamental principles.
ii) Whether Section 6A violates Articles 325 and 326 of the Constitution of India in
that it has diluted the political rights of the citizens of the State of Assam;
The question of whether there is dual citizenship provision in India, citizenship of the country and
citizenship of the state (Assam).
– Can a particular state talk about its own culture in a particular manner that
does not talk about a particular culture of other states? What constitutes this
particular culture and who determines it?
– For the first time, you are talking about preserving a culture in the context of
individual state.
(iii) What is the scope of the fundamental right contained in Article 29(1)? Is the
fundamental right absolute in its terms? In particular, what is the meaning of the
expression "culture" and the expression "conserve"? Whether Section 6A violates
Article 29(1)?

Whether 6A violates culture by providing for a different mode of acquiring citizenship.

– Article 29(1) is one of the least litigated and it talks about preservation of
language and culture. Is culture only in terms of language and script or is there
a cultural right; who can claim this cultural right and on whose behalf can
cultural rights be claimed.
– Indigenous people possessing a particular culture and then the need to protect
that particular culture. In the NIYAMGIRI case which was about mining in a
particular tribal area and it was interfering with some cultural practices; the
court said that you can’t do so.
 – Link between culture and citizenship. And culture not in terms of larger
groups but culture in terms of state.
(iv) Whether Section 6A violates Article 355? What is the true interpretation of Article
355 of the Constitution? Would an influx of illegal migrants into a State of India
constitute

"external aggression" and/or "internal disturbance"? Does the expression "State" occurring in this
Article refer only to a territorial region or does it also include the people living in the State, which
would include their culture and identity?
(Taking off from the Sarbananda case) here we are not talking about influx of migrant into a country
but influx of migrant into a state of India (Assam).
– State is defined in an instrumentalist way: Idea of defining is to make sure that
state is accountable in terms of fundamental rights. (purpose of article 12
which defines state) (the constitution doesn’t define a nation or a state but
politically it has received a lot of attention but in Constitutional law state is
used for a particular purpose which is to fix responsibility and liability)
– Article 355: the federal government has certain responsibility towards state
government. The federal government has abdicated its responsibility by
having a different method of acquiring citizenship with reference to Assam.
What responsibility, does the union government have the responsibility to
protect the culture of a particular State
(v) Whether Section 6A violates Article 14 in that, it singles out Assam from other
border States (which comprise a distinct class) and discriminates against it. Also
whether there is no rational basis for having a separate cut-off date for
regularizing illegal migrants who enter Assam as opposed to the rest of the
country; and
(vi) Whether Section 6A violates Article 21 in that the lives and personal liberty of the
citizens of Assam have been affected adversely by the massive influx of illegal
migrants from Bangladesh.
(vii) Whether delay is a factor that can be taken into account in moulding relief under a
petition filed under Article 32 of the Constitution?
(viii) Whether, after a large number of migrants from East Pakistan have enjoyed
rights as Citizens of India for over 40 years, any relief can be given in the petitions
filed in the present cases?
(ix) Whether section 6A violates the basic premise of the Constitution and the
Citizenship Act in that it permits Citizens who have allegedly not lost their
Citizenship of East Pakistan to become deemed Citizens of India, thereby
conferring dual Citizenship to such persons?

Basic structure of the constitution, secularism, discriminate on the basis of religion. Challenging the
citizenship act saying it violated the basic premise of the constitution. But what is this basic premise?
6A violates the basic premise of the Constitution and the citizenship act in that it permits Citizens
who have allegedly not lost their Citizenship of East Pakistan to become deemed Citizens of India,
thereby conferring dual Citizenship to such persons.

(x) Whether section 6A violates the fundamental basis of section 5 (1) proviso and
section 5 (2) of the Citizenship Act (as it stood in 1985) in that it permits a class of
 migrants to become deemed Citizens of India without any reciprocity from
Bangladesh and without taking the oath of allegiance to the Indian Constitution?
Should citizenship be granted only in cases of reciprocity? This is one of the principles on which
citizenship are usually conferred. Apart from the constitution, this provision is in conflict with other
provisions in the citizenship act. The level at challenge is at two levels: Constitution and the act
itself. The third level challenge would be the basic structure and principle challenge.

(xi) Whether the Immigrants (Expulsion from Assam) Act, 1950 being a special
enactment qua immigrants into Assam, alone can apply to migrants from East
Pakistan/Bangladesh to the exclusion of the general Foreigners Act and the
Foreigners (Tribunals) Order, 1964 made thereunder?

The question of determining illegal immigrant is covered by two legislations: the foreigners act
(which is applicable to the entire country) and IMDT (which is applicable to only Assam). Can you
have a mechanism which is in conflict with each other but when Sarbananda Sonowal struck down
the IMDT act , the parent act (under which the tribunal was set up) can that act, a special enactment,
be applied for the exclusion of the general foreigners act.

(xii) Whether Section 6A violates the Rule of Law in that it gives way to political
expediency and not to Government according to law?

(xiii) Whether Section 6A violates fundamental rights in that no mechanism is

provided to determine which persons are ordinarily resident in Assam since the
dates of their entry into Assam, thus granting deemed citizenship to such persons
arbitrarily?

Validity wasn’t decided. Case was referred to a larger bench, still undecided.

Since S6A was still in operation, it meant Assam could be treated differently, so the Supreme Court
division bench gave directions as to how the NRC Exercise could be conducted under the
citizenship rules, and referred the case to a larger bench. So till the larger constitutional bench
decides it to be invalid, it will hold valid and directions were given.

These are important because these are questions that have never been answered before by the S.C.
and there have been cases which have taken a broad view.

Article 12- Definition of a State- In this Part, unless the context otherwise requires, “the State”
includes the Government and Parliament of India and the Government and the Legislature of each
of the States and all local or other authorities within the territory of India or under the control of the
Government of India.

This provision traced the source of unconstitutionality to the State.

When we look at the UK Model, there was a sovereignty of the Parliament, and when we were
borrowing from the UK model, which has an assumption that it is a representative body with a lot
of deference, then why are we concerned with the unconstitutionality of this body? This
consciousness of the drafters of the Constitution can be seen in considering the State as largely the
legislature, and doubting the constitutionality of the laws passed by it.
Article 13. Laws inconsistent with or in derogation of the fundamental rights.—(1) All laws in
force in the territory of India immediately before the commencement of this Constitution, in so far
as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be
void. (2) The State shall not make any law which takes away or abridges the rights conferred by this
Part and any law made in contravention of this clause shall, to the extent of the contravention, be
void. (3) In this article, unless the context otherwise requires,— (a) “law” includes any Ordinance,
order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the
force of law; (b) “laws in force” includes laws passed or made by a Legislature or other competent
authority in the territory of India before the commencement of this Constitution and not previously
repealed, notwithstanding that any such law or any part thereof may not be then in operation either
at all or in particular areas.

If it was intended that the laws made by the Parliament would be subject to a fundamental rights
review or scrutiny, then why is it contradicted by 13 (3)(b)- where the laws made by the Parliament
was looked at differently, on a higher pedestal, when compared to ‘laws in force’ which was made by
an undemocratic legislature. In a majority of cases going to court, the courts do not accept the
constitutionality argument against a legislature. Here, we are looking at two layers of legislatures:

1) Primary legislature
2) Secondary legislature

We are making a fundamental distinction between a body that is elected by the people and the
executive. These are distinctive institutions and should not be read as one and the same. Can the
executive make all laws not through statutes but through ordinances?

One important way in which we talk about ‘laws in force’ is the question of personhood, that is not
made by legislature at all. Is it customary law or law originating from a divine source.

It was believed that the power of judicial review is sourced to Art. 13, but then it was argued that it
cannot be limited to a particular article, and it is a part of a written Constitution in itself.

Are there limits as to what courts can and cannot do? While ruling upon personal laws in Shayara
Bano, the court attempts to take a secular stance, as an unsecular stance would challenge its
jurisdiction. The definition of ‘laws’ did not include personal laws, but it can be traced back to Art.
372 of the Constitution.

372. Continuance in force of existing laws and their adaptation.—(1) Notwithstanding the repeal by
this Constitution of the enactments referred to in article 395 but subject to the other provisions of
this Constitution, all the law in force in the territory of India immediately before the commencement
of this Constitution shall continue in force therein until altered or repealed or amended by a
competent Legislature or other competent authority.

If Art. 13 is not a source of judicial review, then what is its purpose?

The reason is to make sure that colonial laws must be given the benefit and not be prima facie
unconstitutional in itself, and struck down. It would be struck down only if the court finds it
unconstitutional. The laws made by the democratic state after independence should be given a
higher standard of scrutiny, and since it had the benefit of understanding fundamental rights should
have been conscious of this, and if declared unconsitutional would be void ab initio, as the state was
incompetent to make it. However, laws made pre-independence would not be void ab-initio since it
had the competency at the time they were enacted. Through this, we have the principle of
competence. An attack on the legislature is always an attack on competence.

The subsections of Art. 13 must be read distinctly. The text gives an impression that at the time of
drafting, it was not intended that the law would be held to be unconstitutional, but this must be read
in consonance with Art. 13 (2), which only refers to ordinances, and other forms of law making and
not the legislation itself. The contribution of the judiciary to the understanding of these terms is
significant, through judicial interpretation.

Ananth Padmanabhan- Breadth, Scope and Applicability

Issues raised-

1.the actors which possess such rights, and the actors against which such rights apply (the ‘actor’
question);

2. the forms of state action that stand subject to scrutiny (the ‘form’ question);

3. the effect of unconstitutionality on the validity of a law (the ‘effect’ question);

4. the substantive rights and their respective limitations (the ‘content’ question); and

5. the remedies available for infraction of these rights (the ‘remedies’ question).

Two extreme positions of what is state:

Narrower view: State should be defined in such a narrow way that only penal powers or law making
powers construes a State

Functionality test: Can all institutions giving effect to public function or ‘public interest’ be
considered to come under State? It is a very porous test

The liability attached to private actors is different as the state represents the people, while the private
actors represent themselves. A porous test waters down the importance of the state. On occasion,
given the gravity of the situation, courts intervene but there is no clarity regarding whether FRs are
enforceable against only the state but private actors as well. Eg. Vishakha judgement- private actors
responsible for preventing sexual harassment in workplaces.

The institution of state is meaningless when it comes to personal law. In that level, the violation is at
an individual level, then do we consider a violation of FRs? If all these actors come within the
purview of FRs, it is a difficult question that remains unanswered.
Part III talking about untouchability etc, relief would be available because these are violations of
FRs, state isn’t mentioned explicitly, so we might include private also under relief provided by Art.
32. Art. 13(2) still largely directed against State Action of a particular kind.

● Look at the two cases- sonowal and assam case being discussed and identify the questions
laid out in the Ananth Padmanabhan, reading- including who the actor is, the form is, etc.
● Reading rights together- You read article 14 with article 355 in Sarbananda Sonowal v.
Union of India.
● Article 13 is being read with article 372 and article 13(4) is being read with article 368
● In the golaknath case, justice ___ held that the power to amend the constitution is an
absolute power. Where does one locate limitations when such sweeping powers exist?
● The fact that you write out the constitution means that you create limitations.
● Justice Subbarao said that 368 seems to confer seeping powers but there is article 13 that
says it cannot be in contradiction to FR. Nowhere is it said that an amendment is in law. So
then the meaning of law was interpreted to include constitutional Amendments.
· Sukhdev Singh v. Bhagatram, (1975)
· Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002)
· Zee Telefilms Pvt. Ltd. v. Union of India, AIR 2005
(She mentions how when talking about these cases be aware of the year in which they happened and the context)
● In the 1950s, first 20 years the dominant interpretative position was that you do a narrow
interpretation. They were reading it in a textual interpretation. Textual interpretation,
however is not always a bad thing and is not necessarily narrow.
● Example of 1950s case- University of Madras v Shanti bai
● Determination of what constitutes as state- setup by statute, and regulated by state. If state
becomes anything regulated by state then the idea of a defined state becomes lost. However,
if you take a very narrow interpretation (only leg, exec, etc) then it becomes too narrow.
Both have their disadvantages.
● The first time it moved from the narrow understanding of state as those exercising law
making, to a broader interpretation. If you read article 12 with article 13 then that supports
this narrow interpretation. But if you say don’t read 12 with only 13 but with 14 or other
FRs. Here, Rajasthan state electricity board case becomes important. Other important cases,
(which used functionality)- like the airport authority case, continue to extend the
understanding of state through the 'agency and instrumentality' test. The state control test
and the function test continue to go hand in hand at this point.
● Even societies can be considered to be state, and using the functionality state a whole range
of institutions were brought under the ambit of state.
● There are multiple tests, and in different cases different facets can be examined. The way in
which control is demonstrated could vary, but it was use. So the control state was coupled
with functionality test. Functionality test could not be used again.
● In the Pradeep Kumar case, the court reiterated that both tests were important. Up until
then, either test was being used.
● When you talk about function, what is meant by it? Public duty or Public interest?
● In pradeep Rai, can it be said that because BCCI has a monopoly over catering a particular
public interest can it be said to have a different nature and qualify as 'state'?
● He engages with the whole question of what is state and how one defines it. He said that the
distinction that it must be derived from statute has been done away with in many parts of
the world.
 ● Datafin v panel on takeover and merger- this entity was regulating mergers, that did not
come from a statute, because the state at the time was not regulating mergers at the time. So
does this body come under the state by virtue of its function, despite the fact that it was not
started by virtue. House of lords held that panel will be held to be carrying out public
function.

'Citizens' and 'state' are usually considered to be the two primary actors when it comes to FRs. It is
not only against state that FRs are asserted, but also against non-state actors, horizontally. There can
be an indirect effect on non-state actors by the way of legislation. Horizontality enables us to
understand the cases that comes before the court, but it is not present in the SC decisions- even
when specifically argued in the right to education case, the SC denied it but still engages with
horizontality on a case-by-case basis. It should also be highlighted that some fundamental rights are
directly applicable against private parties. In other words, they are subject to horizontal application.
Prominent among these are rights directed against existing patterns of discrimination and
exploitation such as Article 17 (Prohibition of Untouchability), 18 (Abolition of Titles, except
Military and Academic ones), 23 (Prohibition of Forced Labour) and 24 (Prohibition of Child
Labour). Some obligations pertaining to affirmative action in the educational sector have also been
placed on privately funded institutions by way of Article 15(5) and Article 21-A. The door through
Art. 32 is not open for non-state actors, when it comes to horizontality.

There exists a whole range of decisions in UK, Germany etc., which has dealt with public funciton.
There is a whole range of decisions that have engaged with this question of 'public function'.
How do we want to identify State?

- Narrowest understanding: Law making power, power to make regulation and punish.
- It has certain authorities that are performing public duties, and all of these authorities
performing public duties is to be considered state.
- Economic control- 'financial, functional, administrative control'- all pervasive control
(Pradeep Kumar case)- we look at the extent of dominance of the state and not the duty of the state.
- It performs acts in substantial public interest. The telecasting of cricket matches cannot be
looked at as 'public interest' (BCCI case)
- There is a reference to the idea of concentration of power.

Why we need to identify State?

There is a need to identify the state to enlarge the application of fundamental rights (should not just
be enforceable against the state, there must be a horizontality and apply to non-state actors as well).

The other rationale is in reference to remedies.

Are personal laws- law?

Through horizontality, we can make the connection to personal laws (is it 'law' or 'law in force'? The
definition is 'law' and the problem with it is that these customs are not made by the State under Art.
13 (2), and therefore, is actually in terms of Art. 13 (1)- law in force and hence, if it is in violation of
FR could be void). There is also a provision in the GOI, 1935 on personal laws and it states that the
courts could enforce such laws.
The courts when faced with the question of personal law which is not present in art. 13- the court
considered the lack of mention of personal law in art. 13 meant that there was a deliberate intention
to exclude it from art. 13. The court drew a line there and held that personal law is uncodified. Is it
inequality to allow people certain rights under personal law? Then, we have to inevitably look at why
personal law was intentionally excluded. Interpretation occurs through both the written and
unwritten parts of the text. In Narasu Appa Mali- the reason why personal laws have not been
declared unconstitutional is because of the written and unwritten parts of the Constitution.
Something that is in the realm of religion, which is not a part of custom cannot be held against the
Constitution.
This brings us to the question of whether courts fall under the definition of State.

Concerns with the extension of fundamental rights to the judiciary arise only due to the unique
nature of adjudicatory functions, and not because of any express limitations in Article 12.
Administrative functions and procedural rules of the Court certainly open themselves up for
challenge on the ground of fundamental rights violation, and attract the issuance of appropriate
writs to remedy the same. Because the discharge of judicial functions, on the other hand, leads to no
generally applicable action and only decides lis inter partes, there cannot be a violation of
fundamental rights, goes the argument. This was broadly accepted by the Court in Naresh Sridhar
Mirajkar v State of Maharashtra. The multiple views expressed in this case have been analytically
dissected in Seervai’s leading treatise, and need no repetition. At the end of this incisive discussion,
the learned jurist concludes that Hidayatullah J’s dissent, holding the judiciary ‘State’ for the purpose
of enforcement of fundamental rights and a consequential writ under Article 32 issued by the
Supreme Court to the High Court maintainable, is the correct view.

Since Mirajkar, there has been an increasing no. of PILs and consequential judicial activism. In many
such cases, the judiciary, even while discharging judicial functions, goes about its role more like the
legislature or the executive, framing directions and guidelines and overseeing their enforcement.
There is no longer an easy, or strict, separation between these functions, and no longer is the judicial
function merely restricted to lis inter partes. Unfortunately, the decisions in Antulay and Hurra have
not even considered this strong additional reason to formally overrule Mirajkar. The curative
petition does not seem to achieve any more than a writ petition. Arguably, it does a lot less, but at
higher cost to the Court’s resources and time. It also stands on weak foundations, being carved out
from a very expansive reading of the Court’s inherent power to do complete justice. Instead, the
right course of action would be to overrule Mirajkar, accept the judiciary to be ‘State’ for all
purposes and in respect of all its functions, and quash judicial orders that violate fundamental rights
by issuing a writ of certiorari.

At the time of the drafting of the Constitution, the State was vested with huge power (a
concentration of power), and there was a need for rights to be available against such huge power.

When we tie this to the religious freedom question, there are many cases where codified personal
law has been challenged and struck down under Art. 14, 15.

Conceptually, it does not make sense why the judiciary should not be considered 'state'.

Doctrine of Eclipse
The doctrine of eclipse goes to the specific manner in which the nullification of a provision
operates, and has been explained in Bhikaji Narain Dhakras v State of Madhya Pradesh. This is a
case which concerned whether a pre-constitutional legislation concerning nationalization of private
transport, after the enactment of the Constitution violated the right to business under Art. 19.
There, the Court started with laws in force (before the Constitution) and explained that the
operation of fundamental rights eclipses a law that has been validly enacted otherwise. As a
consequence, if the constitutional bar is removed by way of a subsequent amendment, the law would
be automatically revived without any further legislative intervention.

The court examined if at the time of the enactment of the legislation, the FR was violated- it did not
hold that this law is void for all purposes, but instead came up with an explanation that the law
would continue to be valid as per 'non-citizens' are concerned, as Art. 19 only applies to citizens.
However, the law was eclipsed when it came to citizens, but the eclipse was lifted in the context of
non-citizens. Eclipsed- can be revied without being re-enacted- can through a subsequent
amendment.

Would the doctrine of eclipse apply against post-constitutional laws as well?

Deep Chand v. State of U.P., AIR 1959 SC 648: The minority opinion- yes, it is eclipsed in the
context of citizens but not in the context of non-citizens. Majority opinion- no since once a statute
is enacted, it goes to the competency of the legislature. If it is in violation of the constitution, it
should be void ab initio. The doctrine of eclipse ought not to apply to post-constitutional
legislations, as it is made by a duly elected competent parliament, aware of the fundamental rights.

Caveat: What about the 9th schedule? It allows the Parliament to amend legislations within the
schedule to escape judicial review- it provides a shelter to the legislations that would otherwise be
unconstitutional, to continue to be valid. It is a caveat to the proposition that the doctrine of eclipse
does not apply to FRs.

State of Gujarat v. Sri Ambika Mills, AIR 1974 SC 1300: The Court held that non-citizens,
especially corporations cannot claim violation of Art. 19 rights.

Module 3: Right to Equality

How does one define the content of the right to equality?

The idea of equality, liberty and fraternity became a slogan for revolutions as well as establishing
new democratic egalitarian orders, and resonated in many Constitutions. If we look at the text of
Art. 14, we seem to have combined many ideas of equality into those two lines. In this part of the
module, rather than looking at the philosophical understanding of what equality entails, we look at
the way in which the SC has determined the scope of equality.

The case we will be discussing is as follows:

State of W.B v. Anwar Ali Shah

7 judge bench of the supreme court with 7 opinions-each using a different method of understanding
a.14, it is important to note that this was a case that came after the infamous Gopalan judgment but
does not refer to it. Instead, it uses judgements under a. 14, such as Chiranjit FN Balsara. The
reading of a.19 in that case does not interfere with the reading of a.14 in this case. Gopalan does not
use 14 but used 19 and 21 to question the validity of preventive detention laws. The case was
primarily also on a. 22. But the ratio of Gopalan was that procedure established by law did not mean
reasonable procedure and that law only meant statute and not justice-lex not jus. In contrast to this,
the line of argument in Anwar Ali was strikingly different.

The most oft quoted ratio from Anwar Ali is Justice Das's opinion setting out the reasonable
classification test but the opinions of other judges does not stay within this frame. When the so
called 'new doctrine of equality’ is set out it is justice das's opinion and the reasonable classification
test used therein that is referred to as the old doctrine of equality that is overruled although it is
questionable whether it is indeed bad law, as there are numerous opinions which continue to use it.
Justice Fazl Ali's opinion both in Gopalan and Anwar Ali are remarkable for the use of a.21 and the
understanding on due process that is implicit in these opinions, Justice Vivian Bose's opinion in
anwar ali is remarkable for the use of constitutional history

The majority held section 5 of the Special Courts Act as unconstitutional being violative of a. 14.
Justice Fazl Ali held that various other provisions of the act were also unconstitutional.
Thère is a minority opinion by Justice Patanjali Shastri( CJ) and we will discuss the case in the order
in which the judgment is reported.
Facts: The respondent and 49 other persons were charged with various offences alleged to have
been committed by them in the course of their raid as an armed gang on a certain factory known as
the Jessop Factory at Dum Dum, and they were convicted and sentenced to varying terms of
imprisonment by the Special Court to which the case was sent for trial by the Governor of West
Bengal by a notification dated 26th January, 1950, in exercise of the powers conferred by section 5
(1) of the Act.

Thereupon the respondent applied to the High Court under article 226 of the Constitution for the
issue of a writ of certiorari quashing the conviction and sentence on the ground that the Special
Court had no jurisdiction to try the case inasmuch as section 5 (1), under which it was sent to that
Court for trial, was unconstitutional and void under article 13 (2)as it denied to the respondent the
equal protection of the laws enjoined by article 14. The High Court by a Full Bench consisting of the
Chief Justice and four other Judges quashed the conviction and directed the trial of the respondent
and the other accused persons according to law. Hence the appeal.

Held: J Patanjali Shastri looked at what the HC had done, by applying the test of reasonable
classification: The question next arises as to whether the provision, thus understood, violates the
prohibition under article 14 of the Constitution. The first part of the article, which appears to have
been adopted from the Irish Constitution, is a declaration of equality of the civil rights of all persons
within the territories of India and thus enshrines what American Judges regard as the "basic
principle of republicanism" [cf. Ward v. Flood (1)]. The second part which is a corollary of the first
and is based on the last clause of the first section of the Fourteenth Amendment of the Ameri- can
Constitution, enjoins that equal protection shall be secured to all such persons in the enjoyment of
their rights and liberties without discrimination or favouritism, or as an American Judge put it "it is a
pledge of the protection of equal laws" [Yick Wo v. Hopkins (1)], that is, laws that operate alike on
all persons under like circumstances. And as the prohibition under the article is directed against the
State, which is defined in article 12 as including not only the legislatures but also the Governments
in the country, article 14 secures all persons within the territories of India against arbitrary laws as
well as arbitrary application of laws. This is further made clear by defining "law" in article 13 (which
renders void any law which takes away or abridges the rights conferred by Part III) as including,
among other things, any "order" or "notification", so that even executive orders or notifications
must not infringe article 14. This trilogy of articles thus ensures non-discrimination in State action
both in the legislative and the administrative spheres in the democratic republic of India. As
pointed out in Chiranjit Lal's case(2) and in numerous American decisions dealing with the equal
protection clause of the 14th Amendment, the State in the exercise of its governmental power must
of necessity make laws operating differently on different groups or classes of persons within its
territory to attain particular ends in giving effect to its policies, and it must possess for that purpose
large powers of distinguishing and classifying persons or things to be subjected to such laws. But
classification necessarily implies discrimination between persons classified and those who are not
members of that class. "It is the essence of a classification" said Mr. Justice Brewer in Atchison,
Topeka & Santa Fe R. Co. v. Matthews (3), "that upon the class are cast duties and burdens different
from those resting upon the general public. Indeed the very idea of classification is that of inequality,
so that it goes without saying that the mere fact of inequality in no manner determines this matter of
constitutionality". Commenting on this observation in his dissenting opinion in Connoly v. Union
Sewer Pipe Co. Mr. Justice McKenna posed a problem and proceeded to answer it. "It seems like a
contradiction to say that a law having equality of operation may yet give equality of protection.
Viewed rightly, however, the contradiction disappears...... Government is not a simple thing. It
encounters and must deal with the problems which come from persons in an infinite variety of
relations. Classification is the recognition of those relations, and, in making it, a legislature
must be allowed a wide latitude of discretion and judgment.....(premised on legislative
competence- presumption against the petitioner). Classification based on those relations need not be
constituted by an exact or scientific exclusion or inclusion of persons or things. Therefore it has
been repeatedly declared that classification is justified if it is not palpably arbitrary". (italics mine.)

In the light of the foregoing discussion, it seems to me difficult to hold that section 5 (1) in whole or
in part is discriminatory. It does not, either in terms or by necessary implication, discriminate as
between persons or classes of persons; nor does it purport to deny to any one equality before the
law or the equal protection of the laws. Indeed, it does not by its own force make the special
procedure provided in the Act applicable to the trial of any offence or classes of offences or classes
of cases; for, it is the State Government's notification under the section that attracts the application
of the procedure. Nor is that procedure, as I have endeavoured to show, calculated to impair the
chances of a fair trial of the cases to which it may be made applicable, and no discriminatory intent
or design is discernible on its face, unless every departure from the normal procedure is to be
regarded as involving a hostile discrimination. I have already held, as a matter of construction, that
section 5 (1)vests a discretion in the State Government to refer to a special court for trial such
offences or classes of offences or cases or classes of cases as may, in its opinion, require a speedier
trial. Such discretion the State Government is expected to exercise honestly and reasonably, and the
mere fact that it is not made subject to judicial review cannot mean that it was intended to be
exercised in an arbitrary manner without reference to the declared object of the Act or, as Harries
C.J. put it, "whether the duration of a case is likely to be long or not." In the face of all these
considerations, it seems to me difficult to condemn section 5 (1) as violative of article 14. If the
discretion given to the State Government should be exercised improperly or arbitrarily, the
administrative action may be challenged as discriminatory, but it cannot affect the constitutionality
of the law. Whether a law conferring discretionary powers on an administrative authority is
constitutionally valid or not should not be determined on the assumption that such authority will act
in an arbitrary manner in exercising the discretion committed to it. As observed by Kania C.J. in Dr.
Khare's case(1), "It is improper to start with such an assumption and decide the legality of an Act on
that basis. Abuse of power given by law sometimes occurs; but the validity of the law cannot be
contested because of such an apprehension." On the contrary, it is to be presumed that a public
authority will act honestly and reasonably in the exercise of its statutory-powers, and that the State
Government in the present case will, before directing a case to be tried by a Special Court, consider
whether there are special features and circumstances which might unduly protract its trial under the
ordinary procedure and mark it off for speedier trial-under the Act.
With this rationale, Shastri held that the legislation was valid.

Fazl Ali:
“There is no doubt that the West Bengal Special Courts Ordinance, 1949, which was later replaced
by the impugned Act (West Bengal Special Courts Act X of 1950, to be herein- after referred to as
"the Act"), was a valid Ordinance when it was promulgated on the 17th August, 1949. The Act,
which came into effect on the 15th March, 1950, is a verbatim reproduction of the earlier
Ordinance, and what we have to decide is whether it is invalid because it offends against article 14 of
the Constitution. In dealing with this question, the following facts have to be borne in mind:--

(1) The framers of the Act have merely copied the provisions of the Ordinance of 1949 which was
promulgated when there was no provision similar to article 14 of the present Constitution.

(2) The provision of the American Constitution which corresponds to article 14 has, ever since that
Constitution has been in force, greatly exercised the minds of the Ameri- can Judges, who,
notwithstanding their efforts to restrict its application within reasonable limits, have had to declare a
number of laws and executive acts to be unconstitutional. One is also amazed at the volume of case-
law which has grown round this provision, which shows the extent to which its wide language can
be stretched and the large variety of situations in which it has been invoked.

(3) Article 14 is as widely worded as, if not more widely worded than, its counterpart in the
American Constitution, and is bound to lead to some inconvenient results and seriously affect some
pre-Constitution laws.

(4) The meaning and scope of article 14 have been elaborately explained in two earlier decisions of
this Court, viz., Chiranjit Lal Chowdhury v. The Union of India and Others (1) and The State of
Bombay and Another v.F.N. Balsara C), and the principles laid down in those decisions have to be
kept in view in deciding the present case. One of these principles is that article 14 is designed to
protect all persons placed in similar circumstances against legislative discrimination, and if the
legislature takes care to reasonably classify persons for legislative purposes and if it deals equally with
all persons belonging to a well-defined class, it is not open to the charge of denial of equal
protection on the ground that the law does not apply to other persons.

(5) There is nothing sacred or sacrosanct about the test of reasonable classification, but it has
undoubtedly proved to be a useful basis for meeting attacks on laws and official acts on the ground
of infringement of the equality principle.

(6) It follows from the two foregoing paragraphs that one of the ways in which the impugned Act
can be saved is to show that it is based on a reasonable classification of the persons to whom or the
offences in respect of which the procedure laid down in it is to apply, and hence it is necessary to
ascertain whether it is actually based on such a classification.

The impugned Act has completely ignored the principle of classification followed in the Code and it
proceeds to lay down a new procedure without making any attempt to particularize or classify the
offences or cases to which it is to apply.

The second point to be noted is that in consequence of the Act, two procedures, one laid down in
the Code and the other laid down in the Act, exist side by side in the area to which the Act applies,
and hence, it gives arbitrary power to the Govt leading to anomalous results. (conferring power
without any basis for such classification)

The intention behind the legislation is irrelevant.

Mahajan: Speedier trial may be the reason or motive but dos not amount to classification. It is too
vague and uncertain. In fact, it is no classification at all. To presume good faith was to make art. 14 a
rope of sand.

Mukherjea: Invokes the classification doctrine. Also referred to arguments that it needed to be
demonstrated that the legislation is a piece of ‘hostile’ legislation and held there is no need. He also
rejected dominant intention principle. If there is no classification at all then we cant uphold the
judgement.

Das: Article 14 of our Constitution, it is well known, corresponds to the last portion of section 1 of
the Fourteenth Amendment to the American Constitution except that our article 14 has also
adopted the English doctrine of rule of law by the addition of the words "equality before the law." It
has not, however, been urged before us that the addition of these extra words has made any
substantial difference in its practical application. The meaning, scope and effect of article 14 of our
Constitution have been discussed and laid down by this Court in the case of Chiranjit Lal
Chowdhury v. The Union of India and Others (1). Although Sastri J., as he then was, and myself
differed from the actual decision of the majority of the Court, there was no disagreement between us
and the majority as to the principles underlying the provisions of article 14. The difference of
opinion in that case was not so much on the principles to be applied as to the effect of the
application of such principles. Those principles were again considered and summarised by this Court
in The State of Bombay v.F.N. Balsara (2). It is now well established that while article 14 is designed
to prevent a person or class of persons from being singled out from others similarly situated for the
purpose of being specially subjected to discriminating and hostile legislation, it does not insist on an
"abstract symmetry" in the sense that every piece of legislation must have universal application. All
persons are not, by nature, attainment or circumstances, equal and the varying needs of different
classes of persons often require separate treatment and, therefore, the protecting clause has been
construed as a guarantee against discrimination amongst equals only and not as taking away from the
State the power to classify persons for the purpose of legislation. This classification may be on
different bases. It may be geographical or according to objects or occupations or the like. Mere
classification, however, is not enough to get over the inhibition of the Article. 'The classification
must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities
or characteristics which are to be found in all the persons grouped together and not in others who
are left out but those qualities or characteristics must have a reasonable relation to the object of the
legislation.
In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must
be founded on an intelligible differentia which distinguishes those that are grouped together from
others and (2) that that differentia must have a rational relation to the object sought to be
achieved by the Act. The differentia which is the basis of the classification and the object of the Act
are distinct things and what is necessary is that there must be a nexus between them. In short, while
the Article forbids class legislation in the sense of making improper discrimination by conferring
privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other
persons similarly situated in relation to the privileges sought to be conferred or the liability proposed
to be imposed, it does not forbid classification for the purpose of legislation, provided such
classification is not arbitrary in the sense I have just explained. The doctrine, as expounded by this
Court in the two cases I have mentioned, leaves a considerable latitude to the Court in the matter of
the application of article 14 and consequently has the merit of flexibility.

Reasonableness is only one of the tools that is used to understand Article 14.

Three decisions before Anwar Ali:

AK Gopalan v. State of Madras: In this case on preventive detention, for the first time there was an
argument made to read rights together. However, the SC refused to read it together, and held that
the rights are watertight compartments and there is no question of reading them together.The SC
refused to read in even a reasonable procedure requirement under Art. 20.

The text of Art. 14 does not mention the word reasonable. It simply says equality before the law and
equal protection of law. But when we refer to the case law on article 14, we talk about ‘reasonable
classification’. Therefore, at a particular point we talk about the reasonableness of the classification-
the justification behind the classification.

The framers of the Constitution were very clear that they did not want to incorporate ‘due process’
into the Indian Constitution, but it is very much a part of the Constitution. This is due to the
decision of the SC in Maneka Gandhi, where the court read article 14 into article 21.
FN Balsara Case was dealing with the constitutional validity of the Bombay prohibition act which
made several classifications, such as foreign liquor as well as places and person who could consume
them. It held that classification is absolutely necessary, it is irreplaceable and the relaxation of the
rule did not make the rule arbitrary nor the provision to grant permits to foreigners were
discriminatory.

Charanjit Lal case was challenging the Sholapur Spinning and Weaving Company (Emergency
Provisions) Act, 1950, which dismissed the managing agents and directors and granted power to the
government to appoint new directors as well as power to amend the Companies Act in its
applicability to the company. The company was found to be mismanaging its affairs affecting the
production of an essential commodity and causing serious unemployment. It held that though the
legislature had proceeded against one company only and its shareholders, in as much as even one
corporation or a group of persons can be taken to be class by itself for the purposes of legislation,
provided there is sufficient basis or reason for it and there is a strong presumption in favour of the
constitutionality/of an enactment, the burden was on the petitioner to prove that there were also
other companies similarly situated and this company alone had been discriminated against, and as he
had failed to discharge this burden the impugned Act cannot be held to have denied the petitioner
the right to equal protection of the laws referred to in Article 14.

There wasn’t a reading in article 19 with 21, or 14 with 19, or a requirement of reasonableness under
14 and 21.

The refusal to read Art. 19, with art. 21 in the Gopalan Case does not cast a shadow on the reading
of art. 14 in this case. Art. 14 was not invoked in Gopalan but used 19 and 21 to question the
validity of preventive detention laws. The case was primarily also on article 22. But the ratio of
Gopalan was that procedure established by law did not mean reasonable procedure and that law only
meant statute and not justice-lex not jus. In contrast to this, the line of argument in Anwar Ali was
strikingly different. Anwar Ali demonstrates it and proceeds without overruling Gopalan, it found a
way to bring in an argument of equal protection by not locating it in Art. 21, but Art. 14.

The most often quoted ratio from Anwar Ali is Justice Das’s opinion setting out the reasonable
classification test but the opinions of other judges do not stay within this frame. In fact, Fazl Ali and
Vivian Bose are quite critical about the ability of this test to decide on constitutionality. When the so
called ‘new doctrine of equality’ is set out in Menaka, J Bhagwati relies on this case to project the
concept of reasonableness into the procedure contemplated by art. 21 having regard to the impact of
Art. 14 on Art. 21.

“It was held in both these cases that the procedure established by the special law must not be
violative of the equality clause. That procedure must answer the requirement of Art. 14.”

“Now, the question immediately arises as to what is the requirement of Art. 14 what is the content
and reach of the great equalising principle enunciated in this article ? There can be no doubt that it is
a founding faith of the Constitution. And, therefore, it must not be subjected to a narrow, pedantic
or lexicographic approach (This is where Vasanthi has a problem- Anwar Ali does not have a
lexicographic narrow approach at all). No attempt should be made to truncate its all embracing
scope and meaning for, to do so would be to violate its activist magnitude. Equality is a dynamic
concept with many aspects and dimensions and it cannot be imprisoned Within traditional and
doctrinaire limits.”

This is his justification of discarding the reasonableness principle, and moving to the arbitrariness
doctrine.

“The principle of reasonableness, which legally as well as philosophically, is an essential element of

equality or non-arbitrariness pervades Art. 14 like a brooding omnipresence and the procedure
contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with
Article 14. It must be "'right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it
would be no procedure at all and the requirement of Article 21 would not be satisfied.”

It is Justice Das’ opinion and the reasonable classification test therein that is referred to as the old
doctrine of equality that is overruled, although it is questionable whether it is indeed ‘bad law’, as
there exist numerous opinions which continue to use it.

Justice Fazl Ali’s opinion both in Gopalan and Anwar Ali are remarkable for the use of art. 21 and
the understanding on due process that is implicit in these opinions. Justice Vivian Bose’s opinion in
Anwar Ali is remarkable for the use of historical events surrounding the freedom struggle as well as
the evolution of constitutional rights.

Reasonable Classification Test:

Two conditions must be fulfilled, namely, (1) that the classification must be founded on an
intelligible differentia which distinguishes those that are grouped together from others and (2) that
that differentia must have a rational relation to the object sought to be achieved by the Act.

Tarunabh Khaitan also uses the classification test to argue that it can be expanded beyond the two
questions to ask further questions.

When J Bhagwati talks about a ‘new’ doctrine of arbitrariness, Vasanthi fails to see what is new
about it as arbitrariness is inbuilt into reason. Even in the 1950s the courts emphasised on words like
arbitrary as a part of reasonableness. Therefore, it is merely an artificial distinction.

J C Aiyar: while Article 14 forbids class legislation in the sense of making improper discrimination,
it does not forbid classification for the purpose of legislation, provided such classification is not
arbitrary. It merely requires that all persons subject to such legislation shall be treated alike under like
cir- cumstances and conditions both in the privileges conferred and in the liabilities imposed." "The
inhibition of the amendment was designed to prevent any person or class of persons from being
singled out as a special subject for discriminating and hostile legislation." It does not take from the
states the power to classify either in the adoption of police laws, or tax laws, or eminent domain
laws, but permits to them the exercise of a wide scope of discretion, and nullifies what they do only
when it is without any reasonable basis. Mathematical nicety and perfect equality are not required.
Similarity, not identity of treatment, is enough. If any state of facts can reasonably be conceived to
sustain a classification, the existence of that state of facts must be assumed. One who assails a
classification must carry the burden of showing that it does not rest upon any reasonable basis."

The seven principles formulated by Fazl Ali J. are as follows:

"1. The presumption is always in favour of the constitutionality of an enactment, since it must be
assumed that the legislature understands and correctly appreciates the needs of its own people, that
its laws are directed to problems made manifest by experience and its discriminations are based on
adequate grounds.
2. The presumption may be rebutted in certain cases by showing that on the face of the statute,
there is no classification at all and no difference peculiar to any individual or class and not applicable
to any other individual or class, and yet the law hits only a particular individual or class.
3. The principle of equality does not mean that every law must have universal application for all
persons who are not by nature, attainment or circumstances in the same position, and the varying
needs of different classes of persons often require separate treatment.
4. The principle does not take away from the State the power of classifying persons for legitimate
purposes.
5. Every classification is in some degree likely to produce some inequality, and mere production of
inequality is not enough.
6. If a law deals equally with members of a well-defined class, it is not obnoxious and it is not open
to the charge of denial of equal protection on the ground that it has no application to other persons.
7. While reasonable classification is permissible, such classification must be based upon some real
and substantial distinction bearing a reasonable and just relation to the object sought to be attained,
and the classification cannot be made arbitrarily and without any substantial basis.”
What we have in this case is a carte blanche.

Vivian Bose:
Then, again, what does "equality" mean? All men are not alike. Some are rich and some are poor.
Some by the mere accident of birth inherit riches, others are born to poverty. There are differences
in social standing and economic status. High sounding phrases cannot alter such fundamental facts.
It is therefore impossible to apply rules of abstract equality to conditions which predicate in equality
from the start; and yet the words have meaning though in my judgment their true content is not to
be gathered by simply taking the words in one hand and a dictionary in the other, for the provisions
of the Constitution are not mathematical formula which have their essence in mere form. They
constitute a frame-work of government written for men of fundamentally differing opinions and
written as much for the future as the present. They are not just pages from a text book but form the
means of ordering the life of a progressive people. There is consequently grave danger in
endeavouring to confine them in watertight compartments made up of ready-made generalisations
like classification. I have no doubt those tests serve as a rough and ready guide in some cases but
they are not the only tests, nor are they the true tests on a final analysis.

What, after all, is classification? It is merely a systematic arrangement of things into groups or
classes, usually in accordance with some definite scheme. But the scheme can be anything and the
laws which are laid down to govern the grouping must necessarily be arbitrarily selected (Tarunabh
Khaitan’s argument- 18 marriage arbitrary etc); also granted the right to select, the classification can
be as broadbased as one pleases, or it can be broken down and down until finally just one solitary
unit is divided off from the rest. Even those who propound this theory are driven to making
qualifications. Thus, it is not enough merely to classify but the classification must not be
'discriminatory', it must not amount to 'hostile action', there must be 'reasonable grounds for
distinction', it must be 'rational' and there must be no 'substantial discrimination'. But what then
becomes of the classification? and who are to be the judges of the reasonableness and the
substantiality or otherwise of the discrimination? And, much more important, whose standards of
reasonableness are to be applied? --the judges'?--the government's?--or that of the mythical ordinary
reasonable man of law (Wednesbury principle) which is no single man but a composite of many men
whose reasonableness can be measured and gauged even though he can neither be seen nor heard
nor felt? With the utmost respect I cannot see how these vague generalisations serve to clarify the
position. To my mind they do not carry us one whit beyond the original words and are no more
satisfactory than saying that all men are equal before the law and that all shall be equally treated and
be given equal protection. The problem is not solved by substituting one generalisation for another.

I can conceive of cases where there is the utmost good faith and where the classification is scientific
and ration- al and yet which would offend this law. Let us take an imaginary case in which a State
legislature considers that all accused persons whose skull measurements are below a certain standard,
or who cannot pass a given series of intelligence tests, shall be tried summarily whatever the offence
on the ground that the less complicated the trial the fairer it is to their sub-standard of intelli- gence.
Here is classification. It is scientific and systematic. The intention and motive are good. There is no
question of favouritism, and yet I can hardly believe that such a law would be allowed to stand. But
what would be the true basis of the decision? Surely simply this that the judges would not consider
that fair and proper. However much the real ground of decision may be hidden behind a screen of
words like 'reasonable', 'substantial', 'rational' and 'arbitrary' the fact would remain that judges are
substituting their own judgment of what is right and proper and reasonable and just for that of the
legislature; and up to a point that, I think, is inevitable when a judge is called upon to crystallise a
vague generality like article 14 into a concrete concept.

Even in England, where Parliament is supreme, that is inevitable, for, as Dicey tells us in his Law of
the Constitution, "Parliament is the supreme legislator, but from the moment Parliament has uttered
its will as lawgiver, that will becomes subject to the interpretation put upon it by the judges of the
land, and the judges, who are influenced by the feelings of magistrates no less than by the general
spirit of the common law, are disposed to construe statutory exceptions to common law principles
in a mode which would not commend itself either to a body of officials, or to the Houses of
Parliament, if the Houses were called upon to interpret their own enactments."

This, however, does not mean that judges are to deter- mine what is for the good of the people and
substitute their individual and personal opinions for that of the government of the day, or that they
may usurp the functions of the legislature. That is not their province and though there must always
be a a narrow margin within which judges, who are human, will always be influenced by subjective
factors, their training and their tradition makes the main body of their decisions speak with the same
voice and reach impersonal results whatever their personal predilections or their individual
backgrounds. It is the function of the legislature alone, headed by the government of the day, to
determine what is, and what is not, good and proper for the people of the land; and they must be
given the widest latitude to exercise their functions within the ambit of their powers, else all progress
is barred. But, because of the Constitution, there are limits beyond which they cannot go and even
though it fails to the lot of judges to determine where those limits lie, the basis of their decision
cannot be whether the Court thinks the law is for the benefit of the people or not. Cases of this type
must be decided solely on the basis whether the Constitution forbids it

I realise that this is a function which is incapable of exact definition but I do not view that with
dismay. The common law of England grew up in that way. It was gradually added to as each
concrete case arose and a decision was given ad hoc on the facts of that particular case. It is true the
judges who thus contributed to its growth were not importing personal predilections into the result
and merely stated what was the law applicable to that particular ease. But though they did not
purport to make the law and merely applied what according to them, had always been the law
handed down by custom and tradition, they nevertheless had to draw for their material on a
nebulous mass of undefined rules which, though they existed in fact and left a vague awareness in
man's minds, nevertheless were neither clearly definable, nor even necessarily identifiable, until
crystallised into concrete existence by a judicial decision; nor indeed is it necessary to travel as far
afield. Much of the existing Hindu law has grown up in that way from instance to in- stance, the
threads being gathered now from the rishis, now from custom, now from tradition. In the same way,
the laws of liberty, of freedom and of protection under the Constitution will also slowly assume
recognisable shape as decision is added to decision. They cannot, in my judgment, be enunciated in
static form by hidebound rules and arbitrarily applied standards or tests.

This opinion shows how first, difficult it is to define equality and confine it to very strict terms like
reasonable classification or arbitrariness. Second, how does one read the Constitution and the power
of the state to make law, judiciary to make judgements.

What is also striking about Bose’s opinion is his reliance upon the British constitutionalism in his
opinion.
Maneka Gandhi v. Union of India

Maneka is seen as the case that provided the dynamic quality to equality.

In the 1950s, there were a varying set of judgements which held that the classification does not tell
us everything about equality. After Anwar Ali, its ratio has been reduced to the classification test.
Anwar Ali says that don’t strike the law because it is capable of misuse.

Shri Ram Krishna Dalmia v. Justice Tendolkar case- can a single person qualify as a class? Yes, A
legislation may not necessarily make a classification, but it must lay down certain guiding principles
to guide that classification. Justice Das’s opinion on Classification of cases on equality:

https://indiankanoon.org/doc/685234/

If there are no guidelines or principles to guide the classification, the legislation may be struck down.
It would not be struck down simply because it makes the classification. If there is classification,
without any guidance then it may be struck down. Due to this narrowing down of equality to
classification, the court in Maneka steps in.

In Maneka, S. 10 of the Passport Act was challenged (unguided, uncontrolled and arbitrary power),
the Court did not touch the Passport Act or the statutory provisions, and then considered the
procedure behind the act. Instead of using due process, the court used the ‘equal protection laws’.
The minute we used arbitrariness, we tread into the British Constitutionalism on the concept of
‘ultra vires’. If there is a power that is discriminatory or arbitrary, then the body was acting ‘beyond
their power’.

Maneka partially overruled A. K. Gopalan v. State of Madras, which had implied the exclusiveness
and distinctiveness of fundamental rights, and established a relationship between Articles 14, 19, and
21 of the Constitution (known as the 'golden triangle' or 'trinity'), holding that a law depriving a
person of 'personal liberty' must not violate any of them. The decision also held, once again
overruling A. K. Gopalan that a 'procedure established by law' under Article 21 of the Constitution
cannot be arbitrary, unfair, oppressive, or unreasonable.

The reading together of rights in Maneka is reducing the rigour of each of these rights and are
prioritising some rights over the other.

Going back to AK Gopalan on ‘procedure established by law’ on the argument that Maneka
contended that there was a right to travel abroad under Art. 21 of the Constitution, the court in
Gopalan put out the carving out the theory that certain rights were removed from Art. 21 and put in
Art. 19 (freedom of movement- from art. 21 to 19- right to carry on business is subject to specific
restrictions- instead of leaving it part of personal liberty which is subject to any reasonable
procedure established by law, and putting it in art. 19 which only allows restrictions on grounds of
public order) so in Maneka the question was whether right to travel abroad falls under art. 19 and
art. 21? What are implied rights? Are they of any lesser significance than those that are explicitly
mentioned? The right to travel is mentioned under Art. 19, so can it be expanded to travel abroad
beyond the territory of India? Where do we locate the right? The court held that if art. 19 says that
the right has been carved out into art. 19, it does not exhaust the right, instead, it can be derived
from personal liberty under art. 21. Maneka’s contribution is that it opens up the application of art.
21 (before only used in the context of personal liberty under criminal cases).

AK Gopalan said that the procedure established by law is any law passed by the appropriate
authority, and if yes, no further questions would be asked. The question is who made the law? This
question is moot in the context of property- The court here says that the context of property must
be considered and the taking of property must be just, fair and reasonable. In Maneka, this
conception was expanded to Art. 21, and the standard under Art. 21 must meet the standard of
reasonableness under Art. 14. In essence, Maneka is arguing that the requirements of Art. 14 must
be projected into Art. 21- laying out the interrelationship between Art. 21 and Art. 14- therefore, the
procedure established by law is not just any procedure established by a law-making body but must
be just, fair and reasonable. The scope of reasonableness under Art. 14 must be expanded to art. 21,
and this principle in Maneka was used extensively by the courts to expansively read the concept of
rights.

The reading together of rights in Maneka is reducing the rigour of each of these rights and are
prioritising some rights over the other.

AK Gopalan was not completely overruled as it was in the context of preventive detention, and the
distinctivenss of FRs in that context continues to stand as per Maneka.

The Maneka case must be read in contrast with the Air India v. Nargesh Meerza case. Here, we
move from the cases where Art. 14 is appropriate and when do we look at Art. 15. What is the
relationship b/w art. 14 and art. 15? Without diminishing the importance of Art. 14, how do we look
at art. 15? The Constitution itself has a broad recognition of equality than the individual right to
equality under Art. 14 (it is but one facet of the broader idea of equality that is integral to the
Constitution- notion of UAF as well, not simply art 14). There are three decisiosn that are
conflicting with Maneka:

Air India v. Nergesh Meerza,

Rajbala v. State of Haryana,
Suresh Kumar Koushal v. Naz Foundation,

In these cases, we see a narrowest possible use of the classification test to justify state action.

Air India v. Nargesh Meerza was a case not about the statute, but on the procedure established by
law. How do we understand a rule which discriminate on the basis of pregnancy? Is there a
rationale? Yes, there exists a rationale as One of the rules challenged in the case discriminated on the
ground of pregnancy in providing for the termination of the employment contract of an air hostess
if she became pregnant. It is clear why the airline had such a rule—pregnancy of employees is
expensive because the airline has to find replacement services and provide maternity leave. The rule
is based on relevant reasons and is grounded in rationale and is not arbitrary in the conceptual sense.
The rule is clearly unreasonable, for it is based on constitutionally unacceptable reasons. As the
Court held, the rule was ‘extremely detestable and abhorrent to the notions of civilised society and
‘smacked of utter selfishness’. The court failed to appreciate the distinction between arbitrariness
and unreasonableness and used both these tests, and held the rule to be arbitrary and declared it
unconstitutional for that reason.
How do we make a decision as to which article would be invoked in the Air India case- Art. 14 or
Art. 15? When it is clearly a sex-based differentiation, why would we argue on the basis of Art. 14
instead of 15? Till Maneka, Art. 21 was given a very narrow interpretation and was only used in
criminal cases, and in Anwar Ali, instead of using Art. 21, the court used Art. 14 to test the
classification. Why was Art. 14 used instead of Art. 15 (which independently concerns sex based
discrimination) in Air India?

The reason behind this was that the theory of concomitant rights which facilitates the exercise of
a named fundamental right or gives its meaning and substance or makes its exercise effective, is itself
a guaranteed right included within the named fundamental right. In Air India v. Nargesh Meerza,
the court uses both the arbitrariness and the classification test, and the arbitrariness test makes sense
as the fact that there was no guidance, or policy and it was purely on the discretion of the MD and
hence it was arbitrary- thus, unconstitutional. Therefore, it was clear why the court used Art. 14, to
invoke the arbitrariness doctrine. Then why not Art. 15? Art. 15 could not be argued in this case as a
notification was released under Equal Regulations Act that there was no sex based discrimination in
this case. When we look at the classification test, what is the intelligible differentia and reasonable
nexus of the measure with the object of the act? Even in the classification test, if we ask the right
kind of questions, we get the right answers but such questions were not asked in this case. In this
case, it was clear that there were two people who were performing the identical work, and the court
held that there were clear services differences in the service of air hostesses, and thereby constituted
a different ‘class’ to invoke the classification test. The court missed the point that the rules were
discriminatory and the grounds on which the Rules were declared unconstitutional was because it
was arbitrary, not discriminatory. Despite the fact that the court invoked Maneka on reading rights
in a wider manner, the other rights Art. 15, 19, 21 was not invoked by the court and the fact that the
lack of employment impacts personal liberty was not considered.

Arbitrariness as a concept is a very weak concept, the classification test at least understands equality
better but must be enhanced. Nargesh Meerza demonstrates the inadequacy of arbitrariness as a test
to counter discrimination on the basis of sex, caste and other identity based discrimination. Art. 14 is
often seen as a parasitic right, what are we comparing the classification with? What if we cannot
compare? Then we have to explain it on its own sense and not on the basis of some other parameter
and that is where classification fails as a test.

Maneka was relying on the N.I.T case, that held that the right to form unions does not include the
right to collectively bargain, and is not implicit in the right to form union. Here, the court comes
with the theory of concomitant rights, that no union comes with the guarantee that its objectives
would be achieved and equates unions with corporations. Maneka dealt with this position and held
that the right to travel abroad is not a concomitant right flowing from Art. 19.

In Vishakha v. State of Rajasthan, pertaining to sexual harrassment in workplaces- Art. 14, 15, 19, 21
was read together- a hostile work environment does not only take away the right to livelihood, but
also the right to equality, liberty, life etc.

A new idea is introduced to measure equality- arbitrariness. How do we and on what basis do we say
equality has been infringed?

The Anuj Garg case brings in a new test of ‘strict scrutiny’, ‘proportionality’, and the problematic
‘compelling State interest’. If used in Air India, the state could use its compelling state interest to
justify the discrimination. In this case, there was an impugned law prohibited women from working
as bartenders. The law was not arbitrary in the sense that it lacked any basis in reason. In the context
of a deeply patriarchal society where women are often seen merely as objects of male desire, and
where bars tend to be overwhelmingly male spaces, the probability that the patrons will harass
women bartenders is high. The problem with the decision to ban women from working as
bartenders was not that there was no reason backing it up, but that it was an illegitimate reason, which
further entrenched patriarchy by denying employment to women. The Court rightly held that the
right response would have been to ensure the security of women bartenders rather than to
reduce the already limited options that women have, and used the ‘proportionality test’ to
reach this. However, this cannot be used similarly in Air India, as one is not even thinking about
terminating the employment or a maternal leave, but simply the employer believed in the sexist idea
that the air hostesses were incapable after marriage of continuing the job, and was not the ‘ideal
employee’. The court does not get into the question of the ‘ideal employee’, and fails to
address the core problem of the sexist idea, and thus, this new doctrine of equality-
arbitrariness also does not serve this purpose.
One kind of understanding of article 14 is to not keep classification as the center of article 14

The correct view on classification is to not stick to the two components of classification:
1) intelligible classification II) rational nexus.

This is a highly formalistic and minimalistic view of equality. In the Naz Foundation case, the
Delhi High Court adds a component to the classification test- the legitimacy of the object of the
legislation. Even beyond the rationale nexus and the classification, Naz asks why we are classifying
in the first place, and the object behind the legislation making the classification.

Through the arbitrariness test, Nargesh Meerzah comes into the question of ‘cruelty’ but there is
nothing related to cruelty in arbitrariness. In the Rajbala case on eligibility to vote in panchayat
elections for illiterate persons- the idea of equality from UAF is one of the broadest forms of
equality and here we have a government that is attempting to tinker with the foundational ideas of
equality- Universal adult franchise. When the constitutionality of this was challenged, the court
(Nariman) held that ‘arbitrariness’ is not a ground for holding a statute to be unconstitutional. This
goes back to the question of art. 13, post-constitutional laws have more legitimacy than pre-
constitutional laws. In terms of arbitrariness, it pertains to the motive/intention behind the
legislation, and the ways in which executive authorities exercise their power, and the question of
arbitrariness is raising questions on the motive behind legislations which is not desirable (if its post-
constitutional). This has become an accepted canon in constitutional law.

‘Manifest arbitrariness’ is associated with the standard of reasonableness- it has to be perverse as no

reasonable person would find it to be reasonable, and for it to be ‘manifestly arbitrary’ it has to be
absolutely without any reason. This is the problem with this test, as it is extremely easy for the state
to justify its classification or provide some reason (even if it is inadequate).

When we talk about the evolution of the doctrine of equality, we have to look at what is the right
involved, and the effect on these rights. In the Rajbala decision, the court held that by having literacy
as the bar, it discriminated against a whole range of people from exercising their votes. In the typical
classification test or arbitrariness test, it does not look at the ‘effect’ of the classification on the right.
In the Suresh Koushal case, the court overruled Naz Foundation- it held there was intelligible
differentia and reasonable nexus, and relied on this narrow test to find the law constitutional. When
Navtej Johar is overriding S Koushal, it looked at the wider notions of equality by considering other
constitutional rights- Art. 14, 15 etc.

Anwar Ali (classification)- Nagesh Meerza (classification+ arbitrariness) + Anuj Garg (strict
scrutiny, proportionality)- Naz Foundation (added third prong- legitimacy of the object of
the act)- Rajbala (arbitrariness does not apply to legislations)- Suresh Koushal
In the marital rape RIT Foundation v. Union of India case, we see two lines of opinions- one
opinion: there is a classification and what is the claim of married women being treated differently
than unmarried women. Here, Justice Shankar’s opinion looks at the effect of the distinction and he
doesn't look at it as one combined test, he holds Art. 14, 15, 19 and 21 are not met. There is a wider
understanding of how equality impacts personal liberty, non-discrimination, as well as freedom. It is
not that there is one right that is necessarily found when you read them together, it is located
independently in each of them- and the marital rape exception violates each and every one of the
rights. (this is different from Gopalan). J Shakhdar is using the classification test and not
arbitrariness, to look at what is the classification and there is no moral principle behind it, and look
at its impact. The other opinion is looking at the fact that there is intelligible differentia of
intercourse during marriage and the same outside marriage- so we had to look at does the law
classify consentual sex differently in the context of marraige. Justice Shakhder held that the second
exception section 375 does not violate Article 14, and is based on an intelligent differentia having a
rational nexus with the object both of the impugned Exception as well as Section 375 itself. He
further held it does not violate Articles 19(1)(a) and 21. He held that none of the grounds on which
a statute could be struck down existed in the present case. He added that the court could not
substitute its subjective value judgment for that of a democratically elected government.

Therefore, we look at the argument that it reflects a pre-constitutional British

conceptualization of morality and is not in line with the current times, but the other opinion
is still able to justify itself as it locates its justification for the exception within the narrow
two prongs of the classification test, that there exists an intelligible differentia and has a
rational nexus.

In this context, Tarunabh Khaitan argues for the addition of features to the classification test to
make it a well-rounded and clearer test for examining the violation of Article 14.

Both the arbitrariness test and the classification test is ultimately a test against unreasonable state
action. There is a focus on reason instead of equality. So what are the other ideas we must examine
when we look at the substantive part of equality. If Art. 15 was not there, it would allow the state to
classify on the grounds of sex, race, caste etc., and its presence makes such classifications
unreasonable but there is a greater idea of equality.

The connection between the right to equality and the new doctrine becomes even more dubious in
light of our knowledge that the right against arbitrariness is in reality a right against
unreasonableness. Not all forms of unreasonableness entail inequality. Torture is unreasonable, but
the wrongness of torture is not due to it being inegalitarian. The same is true of a whole range of
unreasonable acts— prohibition of criticism of government, ban on religious conversion, denial of
access to courts, prescription of a uniform for citizens, or prohibition on the drinking of tea. All
these acts are unreasonable, but their unreasonableness has little, if anything, to do with inequality.
The new doctrine therefore completely ignores the text of Article 14 and the concept of equality.
Equality may mean many things, but it cannot mean anything. An inquiry into the reasonableness of
State action under the new doctrine no longer requires a prior demonstration that some form of
inequality is involved, as was the case with the old classification doctrine. In the garb of the right to
equality, the new doctrine tries to institute an independent constitutional right against
unreasonableness.

There is more to equality than the laws promulgated by the State- against private actors, and this is
where horizontality comes into play. This is important in our understanding of equality.

Fairness- AK Gopalan says there is no understanding of ‘fairness’ or ‘justice’ that must be built into
any of the FRs, including 20.

Misapplication of the classification doctrine: Subramanium Swamy and RK Garg- A similar attempt
to fudge the tests to get the desired result was more successful in these cases. In this case,
the objective of the rule requiring prior governmental sanction for an inquiry into allegations of
corruption against senior bureaucrats was to shield them from harassing lawsuits so that they could
exercise their discretionary powers without fear. There was much that was wrong with the rule, but
inasmuch as lower-ranking bureaucrats do not wield wide discretionary powers, the classification
between senior and junior officers was clearly intelligible and rationally connected with the stated
objective. The Court struck down the rule, holding that there was no intelligible differentia.

The court could not find absence of intelligibia in the classification b/w higher- and lower- ranking
officials unless it was asking it in the normative fashion that Gupta J had done decades ago. The
problem in this case, like the RK Garg case, was that another important value —the importance of
corruption-free administration—was involved. The right way to go about it would have been to
recognise the entanglement of this value with the right to equality and use that as a basis to
conduct a more demanding review. It conducted a strict review anyway, but instead of justifying
it on proper bases and developing the limited doctrine on Article 14, it tried to force a square peg in
a round hole—thereby exacerbating doctrinal confusion.

Gupta J’s dissent in the RK Garg case was really based on the finding that the rule engaged (and
breached) another important principle: that dishonesty ought not to be rewarded. Since he could not
directly access this additional dimension independently, he sought to fit it within both elements of
the available test. He claimed that the classification between dishonest and honest taxpayers was not
intelligible, and that this differentia did not have any rational connection with the objective (to
unearth black money) As the majority judgment clearly showed, he was wrong on both counts. The
classification was clear and intelligible; what Gupta J was trying to do was to update the
intelligibility test and turn it into a normative inquiry, by asking if a reasonable fair-minded
person would find intelligible.

How do we conceptualize discrimination and devise new standards?

Why do we want to start with the differentive, when the objective may be illegitimate (Naz)?

If we are focussing on the legitimacy and rationale, then we can look at the other ideas behind the
law in the first place such as patriarchy and societal norms (in Air India case) passing onto the legal
sphere. It also shows how the married woman’s employment itself is being understood. Nowhere in
the court’s reasoning in Air India did they consider the fact that the right to employment of the
woman was being affected. There is so much more to equality that is not being factored into, and
needs to be taken into account. Even if the test seems to satisfy, the court does not want to apply
them in the Subramanium Swamy and RK Garg cases.

When we look at legitimacy, how do we measure it? Is it legitimate for a cooperation to say that they
dont want to put a bill of the employee’s choices? As per economic rationality, it is perfectly valid.
Why should we not discriminate against pregnancy, when it is a choice the employee makes? How
do we factor in these things into intelligible differentia, rational object, fairness etc. How does it
reflect on as a society, on someone who has the ability to bring the new generation?

In trying to provide a normative basis to equality, and ways of defining the content of equality, we
come across several problems. By misapplying the test or by adding other factors, the courts have
attempted to move beyond these constraints. When we have used the arbitrariness test, what other
values have we associated with it, to declare it violative of Art. 14.

Are the two ideas of equal protection and equlity before law enough to understand equality in India?
Does art. 14 exhaust the conception of equality?

We have a conception at the back of my mind that what equality means, but translating them into
particular standards and doctrine is difficult. The ideas of ‘classification’ and ‘arbitrariness’ are
dominant ideas and we have also addressed the inadequacies of the same. One specific idea where
classification is hopelessly inadequate is discrimination. When we look at discrimination from the
comparative argument- we need a comparator and w/o it, the classification test fails. We are still
debating about the idea of substantive equality. What is being pointed out is the central tenet of Art.
15, and is there anything that is running through these classifications, should we expand it and
include categories such as disability. Some argue it is the principle of non-discrimination which is
more important than the categories being mentioned (caste, sex etc)- Navtej Singh Johar supports
this, as it argues that the categories are only indicative and does not exhaust all forms of
discrimination which Art. 15 does not cover. Tarunabh Khaitan argues that there should be an
understanding of discriminations apply to all forms of discriminations, and not only limited to the
categories mentioned in Art. 15. What is common to the grounds of discrimination mentioned in
Art. 15(1)? Are we saying that caste per se is unconstitutional, or is it caste-based discrimination?
What is the idea of minority that we must worry about and how is it relevant to our understanding
of discrimination? The idea that we don’t have minorities is the idea of erasing difference (Gandhi),
and this erasure of difference is something that some categories are arguing for. This is a huge part
of the disability movement, where we have one stream that argues that disability itself should
disappear and people with disability should be treated on par with everyone, but nobody can actually
say we shouldn’t address the preventive strategies associated with disability (road safety). Similarly
when we say gender is choice, should we talk about the erasure of gender? When we look at caste,
should we erase the column and not have reservation on the basis of caste? We could argue that
each of these identities are so distinct that any location of commonality between them is difficult.
When we look at Art. 15(1)- we could simply say dsicirmination is prohibited or read it into art. 14
anyways? Why are we drawn to these identities and why are they specifically mentioned in the
Constitution? When we look at constitutional morality, and interpreting it in the context, when we
look at it do we consider the consequences of caste-based discrimination as problematic or the
identification as caste problematic (violative of fraternity). When Ambedkar is talking about the
annihilation of caste, identification symbolizes a history of oppression, and this classification should
not exist.

We meet the requirements of art. 14 when we say, caste is not problematic but when we discriminate
we violate equality. Are the circumstances that revolve around caste, poverty, exclusion, levels of
education, access to environment, other types of livelihood supposed to be taken into account? The
big debate about the reason behind mentioning ‘class’ and ‘caste’ is whether they mean the same?

Champaram Dorairajan v. State of Madras:

CD petitioned Madras HC, immediately after Constitution came into force, challenging reservation
of seats in Tamil Nadu medical colleges as being a violation of right to Brahmins under Art. 14,
15(1), 29. This regulation was to prevent a concentration of power govt positions, with Brahmins-
that happens when people of a particular caste were dominating in public employment . This was
justified in the name of efficiency, and this whole understanding of efficiency associated with caste
stems from the fact that who are the persons who have dominated this sphere and what it measn to
be a civil servant. The regulation provided medical seats to non-brahmins was continuing something
that is in existence 40 years before the independence, so there was caste-based classification? It was a
discrimination in favour of one against another. This aspect of ‘comparison’ comes to the fore in
this case, and there is a need to understand discrimination beyond simply comparison. To
understand the idea of equality, there is a limited amount of room that must be distributed and
hence it must be distributed differently. Is it the only way we understand discrimination or is by
taking about other parameters. T Khaitan takes forward Kalpana Kannanibran’s argument that the
Indian SC does not have a conceptually strong idea of discrimination. Under Art. 15, the court used
very different parameters than Art. 14 and ask for evidence. The idea of compensatory
discrimination is only possible when we accept that discrimination in itself is not bad, and can be
justified if it has the right reasons (is this the long shadow of art. 14 on art. 15). Is there a reason to
justify discrimination without looking at art. 15? What aspects of art. 21 need to be invoked when
we look at caste-based reservation? When we have art. 15(1) and art. 17, are these two really
addressing different ideas of equality? And what about caste based violence? Are they referring to
SC/ST Atrocities cases, caste-based harassment, humiliation as discrimination and does that even
form a part of the understanding of discrimination under art. 15? The AK Gopalan logic resurfaces
at different times of looking at each fundamental right exclusively, so do we only consider the
context of education or employment as mentioned in the right, or do we look at other forms of
caste-based violence as mentioned above? There is enough evidence of caste-based violence. Art. 14
has particular requirements, art. 19 also that need to be made, do we conflate them by reading them
together? This case Champaran Dorairajan, reads Art. 15, with Art. 29, which refers to – the govt
order was held unconstitutional as Art. 15 (1) talks about class and the identification of groups of
people who are socially and educationally backward is a ‘class’ of people, not caste. So through this,
are we providing an exception to non-discriminaiton on the basis of caste. Art. 15 (4) was read as an
exception to art. 15(1). Art. 15(4) was looked as compensatory discrimination. When the framers
introduced art. 15 (4) it did not look at it as an exception, but it’s the courts interpretation that by
using class instead of caste.

When Art. 14 is worded as an individual right, the question of discrimination is not limited to the
individual at all. How do we address discrimination structurally? Reservation is one of the ways. Art.
15(1) explicitly talks about only education and Art. 17 talks about employment, what is the non-
discrimination which is exclusively talked about in Art. 15(1), and the one talked about in art. 17.
Champakam Doraiarajan- Balaji- Thomas
Through these cases, we are attempting to cover reservation in education as well as employment. T.
Khaitan and others have commented that the Indian SC has not given an understanding of
what constitutes non-discrimination, and we have attempted to understand it through either
arbitrariness or classification of people.

The recent cases on reservation show that we havent moved away from the idea that all the
provisions on reservation in the Constitutions are merely ‘enabling provisions’. Even though we
have an idea of substantive equality, this idea hasnt changed, and the understanding of
discrimination is due to the approach taken by the court in the 1950s and 1970s.

What is the difference between Art. 14 and 15? Why do we need two articles when we can read it
into the broad statement of equality?

There are two types of equality- formal equality and substantive equality. Formal Equality
mandate the same treatment for everybody before the law whereas substantive equality
justifies a certain degree of differential treatment on unequal treatment to account for
existing differences that exist.

We look at substantive equality when we look at the anti discrimination clauses or for that matter
deal with reservations which are in response to structural discrimination. We cannot assume that
discrimination is of one form, there are multiple layers of discriminatory behaviour that are a part of
society and when we think of legal solutions - we think of the differences between individualised
acts of discrimination where both the causes and consequences can be identified with clarity - and
then there is structural discrimination where the focus is not on the individual or the occurrence but
its the organisation of institution of practices.

The problem has been that we want to use formal equality everywhere. The reason behind why the
drafters of the Constitution wanted to spread out equality in so many positions, it meant that it
impacted a variety of things and violation of them, needs to be tracked.

Substantive Equality- Negative and Positive rights. It is the ability to ask State deeper questions to
the State and ask the State to do something for the realization of equality- this reflects its ‘positive’
aspect.

Formal Equality- Negative- It is often said that the state doesn’t have to do anything, and merely
refrain from affecting the rights.

From the cases we can see that the majority of the peittioners in non-discrimination cases are the
ones who feel discriminated through non-discrimination provisions and state action- the privileged
raise these petitions as seen in Champakam Dorairajan.
Champakam and Balaji view equality in terms of ‘equal results’- it looks at whether everyone is
entitled to the same rights, as to whether there has been any discrimination in education and
employment, even though Art. 15 is not confined to these two aspects- extends to housing cases
(slum evictions affect the lower-caste disproportionately). The contribution of substantive
equality is to focus on results, and not the starting line. This is the fundamental difference
between Art. 14 and 15, as the latter focusses on the results.

When there is a provision banning sex workers from a particular job- it is a violation of art. 14, it
focusses on the starting line itself. This provision of equality does not have to necessarily compete
with the conception of equality in art. 15.

Can the state only take measures based on caste by constituting a different class? Kannanibran
focusses on the distinction between caste and class. Through this focus on class, we fail to focus on
the genuine discrimination at play on the basis of caste.

Quotas do not resolve the entire problem of discrimination. does the fact that a person has a job
stop him from being viewed as an ‘untouchable’.

All of these special provisions -Art. 16, 17 are aspirational, and hopes. The earlier cases feed into the
notion that they aren’t fundamental rights as they can only be rights which everyone has access to-
but this understanding is mistaken.

The position that a person belonging to a marginalized group is able to get into employment without
a special provision, should they be counted against the quota as a ‘reserved seat’? In Dharamveer
Tholla, this question came up- here, Kanniabran argues that through the quota system, an
entitlement has been entrenched.

‘Judicial anxiety’- read from the reading.

The ceiling of 50 percent reservation is driven by the assumption of lack of merit in reserved
position, even though data from the 1920s in the southern states where reservation existed showed
that ‘efficiency’ was not impacted.

The problem with the 50 percent ceiling is that it focuses on the starting line, when provisions
regarding reservation must focus on substantive quality- which in turn focuses on the results.

When it comes to caste-based reservations questions, the court fails to act as a countermajoritarian
instrument, and instead preserves the views of the majority.

Champakm-Balaji-Thomas-Soosai-Indira
Chinnaih-Nagaraj-Ashok Kumar
UP Power Corporation in Pavitra Jarnail Singh
Lesamma Joseph-PWD
Neil Nunes- OBC Reservation
Maratha Reservation
Champakam: Refusal of reference to DPSP, The ideas of Group rights of a dominant caste-
reflecting a dissociation with history of the provision and the amount of social history that the court
looked at before its decision- birth of PIL?- merit as a standalone a-contextual category.

Balaji: It is the judicial anxiety that despite there was no ineffeciency in the reservation in the
southern states, the court held that there was bound to be a lack of inefficiency with reservation- No
inefficiency is plainly inconsistent with what is bound to be inevitable consequences. Enabling
provision- 15 (4) is an exception, it is not simply an express statement but it is the understanding of
equality of the Supreme Court- efficiency of administration as of paramount importance- Individual
mobility v. class entitlement. It also suggested an economic criteria, which led to the EWS. There
was an idea of a reasonable limit to reservation that was floated (emerged as 50 percent later)- it is
also problematic due to its equivalence of Art. 15 and 16.

Economic criteria (EWS)- The SC in three years haven't found a way to overrule EWS, while it is
blatantly against the judicial precedents. On what basis do we look at economic backwardness, when
the constitution mandates social and educational backwardness. ‘Poverty’ in an uncomplicated
manner is the biggest vulnerability which requires reservation and not caste- is the uncomplicated
understanding of equality behind EWS reservation. The criticism of EWS is coming from the point
of representation- the persons claiming 10 percent EWS reservation are already represented but the
persons belonging to social and educational backwardness are not. In the EWS category, there is no
exercise done to exhibit the dearth of EWS persons in jobs- it would essentially result in excluding
backward classes, and SC/STs from claiming reservation- there is no empirical basis to this claim.
Along with the 50 percent assured representation for the dominant caste, there is an additional 10
percent representation for the upper caste claiming EWS.

Indira Sawhney is a restatement of law of sorts, laying out the decisions before it. It is not the best
way to look at reservations, instead look at Thomas. If we read the Indira Sawhney decision, we can
see that the questions raised and the answers to them are clear. The Indira Sawhney case also led to
many amendments to Art. 15 and 16. In this case, the court upheld separate reservation for OBCs
based on social and economic backwardness (max-50 percent), but excluded the ‘creamy layer’ (the
forward section of the backward class above a certain income). The problem with the creamy layer is
the focus on the ‘economic’ criteria. It essentially disaggregates discrimination and narrows its
articulation down to economic status only. It distorts the realities of disadvantaged castes, dalits and
adivasis. It also feeds into the stereotype- which masks the unwillingness of the dominant castes to
share resources equally with dalits and adivasis. Further, it must be recognised that the entire public
domain in Indian society in education, industry and employment are captured by the creamy layers
of Indian society- the cream of the cream consolidate intergenerational concentration of privilege
whittling down reservation claims, which are claims to non-discrimination, to a bare minimum and
absoliving themselves of any responsibility for the continuing oppression of the dalit community.
The ‘creamy layer’ exists in the dominant castes as well. It is not the dalits that are seeking the
creamy layer in the first place, it is a demand of the upper caste and comes from the same Court that
recognised the lack of efficiency caused by reservation. Are we punishing individuals who have been
abled to transcend the barriers of caste and ascend the economic ladder, to claim reservations
through the ‘creamy layer’. If reservation has never been an individual right and always been a group
right, why are we making it one?

The EV Chinnaiah v. Andhra Pradesh case was a case filed against AP, for the break up of
Scheduled Tribes and for sub-classification- is the sub-classification relevant not only on economic
criteria, but due to the under-representation in government jobs. Here, the court held that ST is a
homogenous group, and thus, this shows that the association with caste is so overwhelming that
irrespective of the economic position, they are still highly disadvantaged.

The standards of review in this context are relevant:

Using strict scrutiny, the court is questioning the motive of the legislature (suspect legislation)- it is a
part of the ‘due process’ test, and by the time Ashok Kumar comes (thanks to Maneka), the
components of due process is being argued. In the United States, the strict scrutiny comes in the
context that the State is bias towards certain categories of people- for example, ban against sexual
minority that is emanating from public mortality, therefore it is suspect.

The Supreme Court has never willfully conceded that reservations are an expression of substantive
equality, and there hasn't been any change since these early decisions. This is despite the fact that the
Constitution has made substantive equality a part of its framework.

All of these cases, right from Balaji- and in Nagaraj, the court upheld the constitutional amendments
but held that efficiency of administration must be upheld and therefore, reservation must be
balanced- shows the effect of these earlier cases. After Nagaraj, the court began to ask evidence of
under-representation of lack of representation of dalits as well, thereby continuing the line of
thinking followed in these earlier cases.

Indira Sawhney v. Union of India

This case is in the context of a lack of separation of powers- what is the exclusive prerogative of the
executive? We can see the exporting of political ‘hot potatoes’ to the courts. There were never any
protests for reservation (apart from the protests by the dominant castes- Marathas and Jatt
reservation). The courts in this way steps in, and this is called the judicialization of politics- where
political questions were decided in constitutional and legal terms. The court is very conscious of its
role as an arbitrator and a mediator in this political conflict. The court forms a balancing act between
different political groups, and the standard of review they are using is the classification test. The
Indira Sawhney decision comes in the light of serious protests across the countries. Background to
the Mandal Commission report (mandate was to investigate status of socially and economically
backward classes). Backward class reservation for the first time throughout India was being
implemented (recommendations of the MC Report), although all southern states had already been
implementing it. TN and Karnataka had a long history of Backward Classes’ movements and various
measures for their welfare were taken in a phased manner. In UP and Bihar such measures did not
mark the culmination of mass movement. The level of anxiety through anti-reservation protests that
Mandal produced in some parts of the country, was not reflected in others. In the non-Sanskrit
South, the basic Varna cleavage was between Brahmins and non-Brahmins, constituted only about
3% of the population. In the Sanskritic North, there was no sharp cleavage between the forward
castes and together they constituted nearly 20% of the population. In view of this, the higher castes
in UP and Bihar were in a stronger position to mobilize opposition to backward class movements.
There was a dominance of dominant political groups and evidently the decisions taken would be
dominated by them. When the government action was challenged before the Supreme Court by way
of a writ petition, the then Prime Minister P V Narasimha Rao brought in another order which
increased the reservation limit to 37 percent while including economically, socially and educationally
backward classes as well.
When we take social and education as the criteria, we miss out on the larger point of caste as the
starting point. There exists a gap in the sociological and legal positions on the issue.

Does equality of result mean a ‘race’ in which the privileges and handicaps of the competitors are
discounted so precisely that each reaches the finish line at exactly the same instant- so that the event
is transformed from a race into a companionable non-competitive run?

Or does it mean that outcomes are proportionate to qualities deserving of differential reward?

In fact, according to Galanter, Mandal (consistent with its mandate) ‘aspires to far less than
comprehensive ‘equality of results’ and that its proposals are fashioned to offset differences in
privileges and handicaps between members of different castes.

The measure of merit is not in terms of the final result but in terms of the efforts to overcome the
handicaps.

• Indeed, in a society where equality of status and opportunity do not obtain and where there are
glaring inequalities in incomes, there is no room for equality-either equality before law or equality in
any other respect.

the Commission evolved eleven 'Indicators' or 'criteria' for determining social and educational
backwardness. These 11 'Indicators' were grouped under three broad heads, L.e., Social, Educational
and

Economic. They are:

• A. Social

(1) Castes/Classes considered as socially backward by others.

(i) Castes/Classes which mainly depend on manual labour for their livelihood.

(i) Castes/Classes where at least 25% females and 10% males above the State average get married at
an age below 17 years in rural areas and at least 10% females and 5% males do so in urban areas.

• (iv) Castes/Classes where participation of females is work in at least 25% above the State average.

B. Educational

(v) Castes/Classes where the number of children in the age group of 5-15 years who never attended
school is at least 25% above the State average.

vi) Castes/Classes where the rate of student drop-out in the age group of 5-15 years is at least 25%
above the State average.

(vii) Castes/Classes amongst whom the proportion of matriculates is at least 25% below the State
average.
• C. Economic

• (vili) Castes/Classes where the average value of family assets is at least 25% below the State
average.
• (ix) Castes/Classes where the number of families living in Kutcha houses is at least 25% above the
State average.
• (x) Castes/Classes where the source of drinking water is beyond half a kilometre for more than
50% of the households.
• (x1) Castes/Classes where the number of households having taken consumption loan is at least
25% above the State average.

• the Drafting Committee had to produce a formula which would reconcile these three points of
view, firstly, that there shall be equality of opportunity, secondly that there shall be reservations in
favour of certain communities which have not so far had a 'proper look-in' so to say into the
administration

• The above material makes it amply clear that the objective behind Clause (4) of Article 16 was the
sharing of State power. The State power which was almost exclusively monopolised by the upper
castes i.e., a few communities, was now sought to be made broad-based. The backward communities
who were till then kept out of apparatus of power, were sought to be inducted there into and since
that was not practicable in the normal course, a special provision was made to effectuate the said
objective.

The aspect of discrimination due to culture (caste) gets overlooked when we talk about social and
educational backwardness, with the focus on access to hospitals, schools, development etc. When
we are talking about the reservation debates as one of the ways of addressing discrimination- we
need to be aware of the fact that it is the least that could have been done to address it. Even when
large amounts of money is sanctioned for tribal welfare, it does not get spent. On the other hand, we
continue to have confrontations in the field of employment etc. When we talk about the drafting of
the Constitution, it was a negotiation which focussed on negotiating equal opportunity of all. The
promise of equal opportunity cannot be compromised. Then how do we compromise equal
opportunity while providing for special measures. The need to provide special measures in the
context of public employment is very significant here, as certain communities have had not so far a
proper look into these spheres. Using the principle of unmitigated merit has been pointed out as
inhuman.

In its judgment, Venkataramiah, J. agreed with Chinnappa Reddy,J. that identification of backward
classes can be made on the basis of caste. He cited the Constituent Assembly and Parliamentary
debates in support of this view. According to the learned Judge, equality of opportunity revolves
around two dominant principles viz., (i) the traditional value of equality of opportunity and (ii) the
newly appreciated - though not newly conceived idea of equality of results. He too did not agree
with the argument of 'merit'. Application of the principle of individual merit, un-mitigated by other
consideration, may quite often lead to inhuman results, he pointed out.

We have examined the decisions of U.S. Supreme Court at some length only with a view to notice
how another democracy is grappling with a problem similar in certain respects to the problem facing
this country. The minorities (including blacks) in United States are just about 16 to 18% of the total
population, whereas the backward classes (including the Scheduled Castes and Scheduled Tribes) in
this country - by whichever yardstick they are measured - do certainly constitute a majority of the
population. The minorites there comprise 5 to 7 groups - Blacks, Spanish-speaking people, Indians,
Puerto Ricano, Aleuts and so on - whereas the castes and communities comprising backward classes
in this country run into thousands. Untouchability - and 'unapproachability', as it was being practiced
in Kerala - is something which no other country in the world had the misfortune to have - nor the
blessed caste system. There have been equally old civilisations on earth like ours, if not older, but
none had evolved these pernicious practices, much less did they stamp them with scriptural
sanction.

When we are talking about women, persons of different sexual orientation etc.,- motive is relevant,
as it is influenced by morality.

At this stage, the court clarified one particular aspect, Art. 16 (1) is a facet of Article 14. Just as
Article 14 permits reasonable classification, so does Article 16 (1).

Among backward classes, there can be a sub-classification on a reasonable basis.

We must, however, point out that Clause (4) speaks of adequate representation and not
proportionate representation. Adequate representation cannot be read as proportionate
representation. Principle of proportionate representation is accepted only in Articles 330 and 332 of
the Constitution and that too for a limited period. These articles speak of reservation of seats in Lok
Sabha and the State Legislatures in favour of Scheduled Tribes and Scheduled Castes proportionate
to their population, but they are only temporary and special provisions. It is therefore not possible
to accept the theory of proportionate representation though the proportion of population of
backward classes to the total population would certainly be relevant. Just as every power must be
exercised reasonably and fairly, the power conferred by Clause (4) of Article 16 should also be
exercised in a fair manner and within reasonable limits - and what is more reasonable than to say
that reservation under Clause (4) shall not exceed 50% of the appointments or posts, barring certain
extra-ordinary situations as explained hereinafter (became a hard rule). From this point of view, the
27% reservation provided by the impugned Memorandums in favour of backward classes is well
within the reasonable limits. Together with reservation in favour of Scheduled Castes and Scheduled
Tribes, it comes to a total of 49.5%.

Indira Sawhney leads to a constitutional amendment, as it lays down certain hard and fast rules
regarding the extent of reservation, taking away the discretions the governments have had. We also
have the question fo reservation in promotions, which the court in Indira Sawhney rejected. It
carries forward the legacy of Champakam and Balaji, by arguing that there cannot be proportionate
reservation, and reservation beyond 50 percent- even though some states had proportionate
reservation.

Creamy Layer

Chinnappa Reddy, J in Vasant Kumar to the following effect:

“One must, however, enter a caveat to the criticism that the benefits of reservation are often
snatched away by the top creamy layer of backward class or caste. That a few of the seats and posts
reserved for backward classes are snatched away by the more fortunes among them is not to say that
reservation is not necessary. This is bound to happen in a competitive society such as ours. Are not
the unreserved seats and posts snatched away, in the same way, by the top creamy layers amongst
them on the same principle of merit on which the non reserved seats are taken away by the top
layers of society. How can it be bad if reserved seats and posts are snatched away by the creamy
layer of backward classes, if such snatching away of unreserved posts by the top creamy layer of
society itself is not bad?”

If it is a principle of equality, we apply it across the board and if it is not, we cannot pick and choose
to apply it for one class and not for the other.

Can a backward class cannot be determined only and exclusively with reference to economic
criterion? It may be a consideration or basis along with and in addition to social backwardness,s but
as a standalone criteria, Indira Sawhney categorically mentioned in cannot by itself, be the sole
criterion.

Income come occupation could be a criteria without reference to caste, but not income by itself.

Final Decision:
• There is no particular or special standard of judicial scrutiny applicable to matters arising under
Article 16(4). (Para 842)
• Clause (4) of Article 16 is not an exception to clause (1). It is an instance and an illustration of the
classification inherent in clause (1). (Paras 741- 742)
• (b) Article 16(4) is exhaustive of the subject of reservation in favour of backward class of citizens,
as explained in this judgment. (Para 743). Therefore, when we have a demand for reservation
through disability, gender orientation- do we have to classify them as backward classes under 16(4),
or can they operate distinctly?
• (c) Reservations can also be provided under clause (1) of Article 16. It is not exhaustive, confined
to extending of preferences, concessions or exemptions alone. These reservations, if any, made
under clause (1) have to be so adjusted and implemented as not to exceed the level of representation
prescribed for 'backward class of citizens' - as explained in this Judgment. (Para 745).

Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1

Whether caste can be a ground for reservation? Even after being answered by court after court, the
same question comes up again. The same set of questions seem to present itself, with mild deviance-
even after Indira Sawhney covered the ‘backward classes’. Earlier, the courts had held caste could
not be basis for classiifciation, but Indira Sawhney held it can be- as it relates to the social evils
associated with social backwardness such as child marriage etc.

Indira Sawhney makes a balance between accepting certain claims and rejecting the other. One of
the claims that the case rejected is the claim of carrying forward- if seats in a quota is not filled in a
particular year, is it carried forward to the next year? The court held that it would not. For example
10 seats total- 4 reserved- only 2 filled, would it carry forward as 6 reserved seats the next year- the
court held that it would affect the ratio of reserved: unreserved seats and should not be allowed if it
breaches 50 percent. This was the logic that needed to be declared unconstitutional by a
constitutional bench. A majority of educational institutions do not fill their quotas- IITs etc. If we
measure the quota in terms of the population, Indira Sawhney introduces a very artificial distinction
by qualifying a year. Indira Sawhney also addressed the 50 percent rule, and held that the 100
percent reservation would be unconstitutional, and would not be in sync with the logic of
representation.

Ashoka Kumar Thakur is significant on many counts. First, the constitutionality of the provisions of
the central education institutions acts, especially Section 2(g) of the Central Educational Institution
Act, it’s dealing with the identification of Socially and Educationally Backward Classes (hereinafter
SEBCs).

Another issue is about the constitutional validity of the Ninety-Third Amendment Act, the question
is whether this act violates the basic structure of the constitution or not. This issue is based on the
principle of equality. The Article such as 14, 15(1), and 29(2) required that admission must be on the
basis of merit to educational institutions, and the amendment also creates non-operative with the
other Articles of the constitution, especially articles which come under fundamental rights. The
other amendment in Art. 15 (5) that was challenged was that the case is significant not just for art.
15 but also for 19, 25, 30 etc., and judicial interpretation of constitutional provisions. Amendments
in Art. 15 are a result of constitutional interpretations of Art. 19. The amendments being challenged
here are reservation in central educational institutions- it is a big deal, as in completely unrelated
cases, the SC had ruled that there cannot be reservation in private educational institutions. While the
right to education was held as a right to article 21, private educational institutions also had a right to
carry on business.

In these private institutions, there were also minority institutions- Art. 30- right of minorities to
establish their own educational institutions of their choice- such focus on education requires
context- the context for Art. 30 is that there were a whole set of provisions met for minorities and
there were disagreements as to what constitutes minorities and the provisions for minorities- so only
2 provisions were finally kept, removing many that were initially promised. A limited understanding
of equality is that everyone is equal poses the same problem as understanding reservation. Linguistic
minorities were what the provision was being targeted as minorities, but it also began to include
religious minorities.

Unconstitutional Constitutional Amendment

Art. 15(5)

Relating it to development in Art. 19

Excluding minority institutions under art. 30 and extending it to private educational institutions.

Matching increase of seats

The Supreme Court in TMA Pai Foundation v. State of Karnataka (2002) held that running of
educational institutions was an occupation entitled to protection under that article as well as under
Article 26.
Background to the case
• the policy of economic liberalization reduced the scope for public employment, with the SC
accepting the logic of economic liberalization (this question was already answered in privatisation of
education).
• Later in Pai education in private hands was made a Fundamental Rights.
• in Inamdar the Court brought the private educational institutions at the level of unaided minority
schools which were exempted from the requirement of reservation.
• In the process the Court rewrote, rather subverted, the Constitution both in respect of reservation
as well as minority rights

The role of the court as a mediator between private parties and the govt.

Grounds for challenge

Art. 14 requires that admissions be based on merit.

Amendment violated basic structure
Violated secularism as it brought in minority educational institution
Clause 4 and 5 overlap and conflict and hence cannot stand (inconsistencies between the two?)
No rerservation beyond +2 is valid.

Standard of Review
The court rejects suspect legislation and strict scruitny.
Width and identity test for basic structure- extent of the infringement on the FR so wide, that it is
taking away the FR and can the amendment be taken down on these grounds.
Democracy, secularism, equality or republicanism are the identities of the Constitution, and these
arent infringed in any way by extending reservations to the private sector- and we cannot say that
there is nothing remaining in Art. 15 if it is extended.
Rights test and the essence of rights test (basic structure standard).

Decision

Reservation upheld provided it excluded creamy layer.

The test of reasonableness applies, as an inversion of arbitrariness (some intelligible differentia is
enough to uphold it)- but propogates the problematic idea of individual rights over group rights and
statements such as the need for a casteless society by eradicating the question of caste- but is the
question of addressing caste mean that caste should be removed as an identity?
Individual rights are superior to social rights
Compelling state interest in assessing backwardness
Does not violate basic structure on width or identity.

Courts as mediators
• Acceptance of judicial decisions
• all democratic countries in the world have assigned the job of resolving constitutional
controversies to the courts, is enough to prove their inevitability for sustaining a constitutional
democracy
• Providing a space for dissenters in this case anti-reservationists
• Shock absorbers and tailoring the policies to make it acceptable to warring parties (anti-reservation
protesters)
Through this, the court is essentially catering to the anti-reservationists, and it is their view that is
being appeased, instead of the beneficiaries of reservation.

Reservation in the private sector?

• In view of this position of rights in Article 19 (1)(g) in our Constitution it is impossible to assert
that mere possibility of making special provisions in unaided private educational institutions clarified
by Article 15(5) to remove the doubt caused by the Court amounts to the abrogation of that right
and, therefore, to the destruction of basic structure. Provision for education is even otherwise
considered primarily a responsibility of the state and even in many Western liberal states it is still
provided almost exclusively by the state.

Equality and Unequals

• Equating 19 rights with rights under 30 (resonance of champakam), irrespective of its context
• An unspecified right of every citizen (uniformity/general and formal rights to equality) vs a
specified right of minorities ( a specific and contextual right of a class of citizens)
• Equalising is destructive of special rights
• Subjecting 30 rights to the same restrictions as 19 rights
A distinct privilege is being conferred to the minority institutions in ‘cutlurally appropriate
environments’- ability to read rights as not subservient to each other, but built to cater to different
needs (the need of art. 19 and 30 are different- by upholding 30 we are not diminishing 19- both of
them have their own context to understand their meanings)
• For equitable distribution of gains, extra measures are required.
• Apart from DPs, provisions like Articles 15(4) and (5) and 16 (4), (4-A) and (4-B) and 335 in our
Constitution are part of that requirement. They also serve a larger purpose of narrowing down the
gap that has been created and perpetuated in our society on caste lines between those who have and
who do not have a say in the society. They ensure that those who did not have a say so far will
slowly be brought into the fold of those who have and in course of time, hopefully, the gap will
vanish and an inclusive society, at least in public affairs, will be created. There should be no doubt
that an inclusive society will better serve our constitutional goal of fraternity, human dignity and
national unity than a divided society.

The MP Singh reading attempts to provide a normative justification for reservation. At the time of
the Drafting of the Constitution, we had a very different notion of reservation. The Maratha
reservation case is an imp decision to read the ways in which smaller benches have been
understanding reservation. MP Singh refers to the debate on how to read these judgements.
Irrespective of what the court says, there will always be a reinterpretation- no last say in the context
of reservation, an unending debate. What are the questions that are coming up and what are the
ways in which you can think about reservation? One of the questions Indira Sawhney tries to settle
by capping reservation at 50 percent- ‘of course, the 50 perc rule cant be inflexible, there can be
circumstances where the line can be crossed’- and Maratha reservation was another attempt to cross
this figure of 50. The idea of proportional representation (used for political) demands more
reservation than 50 perc- may occasionally be 100 perc when we look at an institution in a tribal area
with the population consisting of tribals. This 50 perc reservation rule was specifically raised in the
Maratha reservation.

One of the glaring omissions in the discourse of reservation is the question of discrimination- is it
only taken into account at an empirical level? Or does it need to permeate the discourse on 14, 15,
16? If yes, what are the ways in which we think about it?

In the Maratha reservation, the Indira Sawhney rule of 50 perc reservation was raised and the
argument of ‘strict scrutiny’- suspect legislation was also raised. The government's argument was that
the Maratha population was not proportionally represented in education and employment, and
therefore, there should be reservation. We would be using Sasheej Hegde’s article ‘Towards a
political theory of justice’ to analyse this.

There is an interesting quote even at the beginning- the way in which we have been evaluating
equality is not through the concept, but through the measures. Instead of the truths, we are
focussing on the procedures to arrive at the truth. In the context of reservation

The Maratha reservation case is in a way a precursor to the EWS case- the arguments were similar,
but atleast in the Maratha reservation, there was fact finding with Marathas occupying only 30 perc
in educational and employment- adequate but not proportional. Here, we had a dominant group that
was socially, politically, economically and educationally dominant- seeking reservation. This was an
important decision in the sense that the court held that the identification of social, economic and
backward classes must be done at the Centre- and not the State. The constitutionally identified
SC/ST was present, but SEBC was a new category- there was a need for it, as the lists were prepared
many years ago, and the question of addition, substitution is very difficult as society is changing- it is
not about the list, it was about the social reality. There were a multitude of problems with identifying
STs at the centre, as the categorisation of a group as ST differs from state to state.

All of the cases till the Maratha case (except Champakam and later EWS case) was based on
empirical evidence collected by a designated group, a detailed study on the basis of which a claim for
reservation was made.
'many truths"
• Affirmative action is not a unitary concept and it takes many forms to achieve different goals such
as remedying past discrimination, enhancing diversity (corporate policies are using the word diversity
instead of reservation), empowering the deprived, providing role models and improving welfare
services. How do all of these goals of affirmative action get factored in? How do we evaluate the
decisions that are taken in the context of reservation? What kind of proof is required to establish
discrimination? If we look at the US, we require a specific claim needed to be raised by the
reservation- distinction is that their discrimination cases are filed by people who are discriminated
but in India, the claims are raised by the other side that is contesting the evidence based claim made
by the other. The government proactively collects data on discrimination- where we do not look at
discriminaiton at the individual but at the ‘group level’- the evidence is provided by state and that is
being provided- therefore, due to the completely different context, the comparative constitutional
standards are difficult to suse.
• Many aspects need to be discussed such as when is it permissible, how such decisions are to be
evaluated, what kind of proof is needed to establish discrimination, how is it to be enforced and on
what constituencies
• Poverty is not the only inequity and prejudice and discrimination are endemic. More than poverty,
what we have is prejudice. It is not linked to economic criteria at all.

Social Discrimination and LIberal Theory

Can we be talking about backwardness in the context of individual rights at all? We are tuned to
understanding rights only in the context of individuals, but it can be group based rights for particular
groups as well. This conflict between individual v. collective is central to the concept of reservation.
Whether programmes addressing social discrmiination and backwardness can be justified on the
ground of individual liberties- we still look at the individual liberty to exclude via creamy layer- does
not fit with the concept of reservation.

In the Anurag Thakur case, the question of extending reservation to the private sector came to the
fore- so it is important to start thinking about these and not only look for specific answers to these
specific questions.

Programmes addressing social discrimination

- Quotas for disability
- Quotas for women
- Quotas for transgender
- Religious minorities

The Maratha reservation held that the Indira Sawhney case does not need reconsideration.
Why would 15 (5) be looked at as an exception to 15- why look at it as individual rights and not the
justification for state action for reservation? How do we not read reservation as giving something to
x is not necessarily taking something away from y.

With the EWS case, the court did not have the data to call for a need for the quota in the first place-
it was simply based on perception (something the SC has done since Champakam) even after
multiple Commission reports and data which show data for the reservation.
Indira Sawhney already denied proportional representation, as it violated the norm that equality of
opportunities should be available to everyone and reservation should be a smaller portion.

Rationale for group based preference

- Remedying dsicrimination
- Aiming at social and not distributive justice in public policy- it is trying to reach certain goals.

Extract from Jaishri Laxmanrao Patil v. State of Maharashtra (2021)

“Overemphasis on merit therefore, ignores the burdens of the past, assumes that everything is
perfectly fair now and asks the question of how the candidate fares in examinations that test only a
narrow range of skills, mainly of linear-type thought. This decontextualized, neutrality-based
thinking glosses over historical and centuries old inequalities, the burdens of which continue to
plague those who labour under disadvantage, and through the so called “level playing field” of a
common exam, or evaluation, privileges those who had, and continue to have, access to wealth,
power, premium education and other privileges, thus consolidating these advantages. Merit is a
resource attractor. Those with it, accumulate more of it, more wealth and acquire more power. They
use that money and power to purchase more increments of merit for themselves and their children.”

Merit cannot be read as an a-contextual reality or truth in itself- an overemphasis on merit ignores
the reality of the past- is merit the only reason to strike down Maratha reservation? It is not based
on merit, but the idea that there already is a dominant group.

“There is empirical evidence, in India, in different sectors that access to productive employment is
confined to a few sections of the workforce, among the most backward of classes, while the rest eke
out a living in the informal economy. The faultlines of division between those who are employed in
good jobs and those who are “excluded” run deep, and are based on caste, religion, region, and
other sectarian divisions all of which overlap with class and gender, such that even within the small
section of the workforce which is productively employed in decent jobs, some groups are better
represented than others, placed higher than others, while some castes and communities are
practically absent in the top echelons of the private corporate sector. While private employers firmly
believe that jobs should be allocated on the basis of individual merit, their views about how merit is
distributed overlaps strongly with existing stereotypes around caste, religion, gender and regional
differences.”
The question of merit v. representation is what the court is looking at, and it tries to make an
argument as to why private employers seem to discriminate, and there must be CSR on the part of
private employers to address this.
“The word ‘adequate’ is a relative term used in relation to representation of different caste and
communities in public employment. The objective of Article 16(4) is that backward class should also
be put in main stream and they are to be enabled to share power of the State by affirmative action.
To be part of public service, as accepted by the Society of today, is to attain social status and play a
role in governance. The governance of the State is through service personnel who play a key role in
implementing government policies, its obligation and duties. The State for exercising its enabling
power to grant reservation under Article 16(4) has to identify inadequacy in representation of
backward class who is not adequately represented. For finding out adequate representation, the
representation of backward class has to be contrasted with representation of other classes including
forward classes. It is a relative term made in reference to representation of backward class, other
caste and communities in public services”
“When in earlier period of about 60 years, right from 1955 to 2008, repeatedly it was held that
Maratha community is not backward class, Gaikwad Commission ought to have applied the test that
“what happened thereafter that now the Maratha community is to be included in OBC”. The
Commission has not adverted to this aspect of the matter. The Commission ought to have also
focused on comparative analysis as to what happened in the recent years that Marathas have become
backward from forward class. In this context, we may also refer to the judgment of this Court in
Ram Singh (supra) where National Backward Classes Commission has rejected the claim of Jat to be
included in other backward communities with regard to several States. The National Commission
recommended that Jat community is a politically dominant class and need not to be included in the
category of OBC.”
When we are making a claim, the court held that we must demonstrate what is different from what
was earlier, and what is the change that must be demonstrated?
“The perception of a self-proclaimed socially backward class of citizens or even the perception of
the “advanced classes” as to the social status of the “less fortunates” cannot continue to be a
constitutionally permissible yardstick for determination of backwardness, both in the context of
Articles 15(4) and 16(4) of the Constitution (specific contexts- no question of adequacy of
representation in 15, only in 16- need to be understood in terms of specific different concept- 16 is
wider than 15, as it can talk about any group that is inadequately represented such as disabeld
persons). Neither can backwardness any longer be a matter of determination on the basis of
mathematical formulae evolved by taking into account social, economic and educational indicators.
Determination of backwardness must also cease to be relative: possible wrong inclusions cannot be
the basis for further inclusions but the gates would be opened only to permit entry of the most
distressed. Any other inclusion would be a serious abdication of the constitutional duty of the State.
Judged by the aforesaid standards we must hold that inclusion of the politically organised classes
(such as Jats) in the List of Backward Classes mainly, if not solely, on the basis that on the same
parameters other groups who have fared better have been so included cannot be affirmed.”

“In addition to being sensitized to the problem of under-representation at the time of employment
(by actively pursuing policies to promote and/or by equal opportunity employment policies), private
companies can also pay attention to supplier diversity in matters of procurement. By encouraging
supplies from firms owned by SCs, STs, or those from backward class or deprived classes, the large
organized private sector in India could give a huge boost to the micro, medium and small enterprises
owned by entrepreneurs from such marginalized groups. Indeed, this is also one of the planks used
in the USA, for instance, where minority-owned businesses are not only given active financial
incentives by the government, but larger firms are expected to source a part of their supplies from
minority-owned businesses. Given that typically, SC, ST and backward class individuals owned
micro enterprises are likely to employ greater proportion of persons from these communities (as
compared to enterprises owned by upper-caste groups), an active supplier diversity programme
would also boost employment.”
Common good for all?

- reservation policy must position itself neither in contradiction to our human rights nor in
denial of the related duties, individual or collective. Instead, it must be situated in pursuit of
social equality as a common good for all. To do this effectively, reservations must intervene
on behalf of the less than equal and prioritize scarce resources for social equality rather than
social efficiency. This inevitably undermines the privileges of the more than equal, but it
does not violate their rights since they are already privileged and so have far less claim to
scarce resources than those less privileged
Equally, social and socially equal- once historically emergent and normatively resonant.
- The first (equally social’) as specified by the theorist and art historian Malcolm Bull is
measured by convergence between vectors (of the social and political primarily).
- The second by distribution effected by them (reservation policy etc).
Is the distributive justice idea to be pitted against being equal in a moral sense-

3rd august:
The idea of equal opportunity brings with it the question of representation. Equal opportunity needs
to mean substantive justice. While disability is not directly mentioned it comes in, and the same
extent of confusion that comes with caste based discrimination comes in in the context of gender
and disability. Just like in the argument for a casteless society, the question for a removal of disability
also comes up. The disability rights movement is demanding that disability not be viewed as
disabling in that sense, with the connotation of a lack of something. The disability rights
movements is conflicted between erasing an identity and having disability as a marker. The
disability rights movement distances itself from specially-abled and divyang terminology. It just
states that disability should not be the only identifying marker for the group.

In the context of disability, we largely rely on statute for the foregrounding of rights and why a
rights based understanding of disability is more important comes from the statute. (persons with
disabilities, act) When the question of disability based reservation arises, the statute is looked at for
principles.

Non-discrimination does not mean you will not have special provisions. ‘Reasonable
accommodation’ is still relevant.
Vikas kumar case (mentioned in passing, but check out)
State of Kerala vs Leesamma Joseph(2021) 9 SCC 208
• Whether a person appointed on compassionate grounds can claim the benefit of disability based
reservation in promotions
• Whether reservation in promotion is mandated by the RPD Act 2016
• Acquiring a disability and being recruited as one
• Non-discrimination in employment and reasonable accommodation
• Vertical (different category in itself) and horizontal reservations (quota of women to be filled must
be filled across the categories)
• (h) "discrimination" in relation to disability, means any distinction, exclusion, restriction on the
basis of disability which is the purpose or effect of impairing or nullifying the recognition,
enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms
in the political, economic, social, cultural, civil or any other field and includes all forms of
discrimination and denial of reasonable accommodation;
❖ In this case, the person wasnt appointed through the disability quota.
The idea is that discrimination gets solved through particular single mechanisms. For instance, once
you've entered employment the issue has been resolved. However, the question of adequacy of
representation through service becomes essential. These things have been held in previous cases,
applied here in this context. Thus even if one is not hireed under that category the principle of
nom-discrimimation still applies.
The fact that you are not making provisions is itself an act of discrimination. Reasonable
accommodation of persons with disabilities is essential.
The distinction made between persons with benchmark disabilities and w/o benchmark disabilities
leads to a question of who is entitled to a reasonable accommodation. Or does the question of
reasonable accommodation spread across the scope of anyone who might need this.
In the maratha case, there was a whole range of possibilities that the court was talking about. Same,
the disability case also, there are several options wo make the environment (both physical and social
and cultural) to be more accommodative.
There is an argument that the removal of classification of the degree of disability should be removed
and be replaxed by a hernaral prohibition of discrimination against disabled. However, this is
protested against eve by the disabilities movement.
The reasonable accommodation term in itsef is borrowed from religious discrimination. So the
theory of discrimination/non-discrimination should be st that can be borrowed from one category
to another. How does one arrive at one core understanding of discrimination that allows us to look
at this question at a form that is much more wider perspective than we have looked already.
How do you use a principle like reasonable accommodation that allows you to move beyond specific
categories and address difficulties faced by an individual without losing sight of the fact that it is the
culture that is leading to a group facing such difficulty.

Reservation in Promotions
Chronology of case law:
Jarnail Singh v. Lachmi Narain Gupta (28 January, 2022)
Jarnail Singh (1) 2018
Nagaraj v. UoI 2006
UoI v. Virpal Chouhan 1995
Indira Sawhney 1992
General Manager Southern Railways v. Rangachari 1962

Jarnail Singh v. Lachmi Narain Gupta (28 January, 2022), reflects the Supreme Court’s attempt to
continue to rely on formal equality, instead of substantive equality (regardless of the fact that it is
embodied in the Constitution). Equality is not just a question of being social equals, one must walk
those additional steps to ensure that people are in fact equal. That walking is where the SC seems to
be having a difficulty- a problem which the SC itself has created- due to the perceived gap between
the formal and substantive equality in the Indian Constitution. The question of reservation of EWS
or demonstrating the need for substantive equality (Nagaraj) comes from the earlier decisions of the
HC.
Indira Sawhney lays down that 15(4) is not an exception. It also lays down that as far as SC/STs are
concerned, there is no need for evidence to show backwardness or claim for reservation. The central
argument of Sasheej Hegde’s article is the difference between normative equality and distributive
equality- and the terminology of backwardness is a problem because it shifts focus towards empirical
legitimacy. The question of efficiency in administration was never raised in the question of absence
of reservation, in the 40s-50s. In Balaji, the court said that it does not believe that there is no loss of
efficiency in administration through reservation. Despite Indira Sawhney, the judgements since also
follow this line of reasoning- and look at reservation as illegitimate.
Sasheej Hegde in his article looks at the principle of legality and legitimacy- where the court
looks at the question of legality far more easily than legitimacy. When the court looks at a
classification, it looks at whether there is an intelligible differentia instead of why the classification
exists in the first place- the intelligible becomes the legitimacy question, instead of the purpose
behind the classification. In Air India v. Nargesh Mirzah, there existed an intelligible differentia
(clear and discernible), but not why the classification exists and whether it is legitimate. The SC is
not looking at evidence of discrimination, but for evidence of backwardness. The terms of
integration are problematic (asking for integration on the terms of the majority). The idea of
‘minority’ that was present at the time of the drafting of the Constitution translated into the term
‘backwardness’- and this term to a certain extent includes religious minorities if they could prove
‘social and educational backwardness’, but discrimination on the basis of identity is overlooked.
The legality question is simply a ‘competence’ question of whether the court is empowered to take
the decision, and not the nature or quality of the decision.
The discussion at the central level starts at Indira Sawhney is because the court is introducing a new
class (SEBC), that is not a constitutional category. -The question of excluding people on the basis of
religion is still not addressed Dalit Christians being discriminated. Should we include other persons,
and the changing nature of discrimination the groups suffer? At one time, untouchability was a
glaring form of social practice, and today it is hidden. Does the merit argument continue to be a
changed form of caste-based discrimination- not by talking about caste, but by attributing certain
characterestics to certain castes? The nature of discrimination has changed, it is not endemic.
Therefore, the question is of investigating whether one belongs to SC/ST//SEBC but the form or
nature of discrimination suffered.
The fact that the court reads the Atrocities Act, art. 15, 16 etc, in a disaggregated manner is the
problem- must be read together. By reading Article 15, Article 16 together, Balaji talks about
demonstrable backwardness or demonstrable adequacy. However, in art. 15- there is no provision
for evidence based reservation. Art. 16 talks about since there is an assurance of equality- there is a
need for adequate reservation, but there is no such requirement in art. 15. So how valid is to read in
the requirement of adequacy in art. 15- This poses the question of whether the reason for
reservation is inadequacy? This is one way of looking at reservation, but when we are reading it by
asking for empirical evidence of inadequacy it is straying from the point of reservation.
Indira Sawhney overrules Rangachari, it held that when we are talking about inadequacy of
reservation, we don't just look at the entry point, but look at the entire structure and not just the
entry point, even points subsequent to entry. Prospective overruling of the Rangachari decision,
which was already in place for 30 years- where Sawhney held that for the next 5 years it will continue
but after that, it would not. Art. 16 (4) is nothing but a reiteration of the existing interpretation of
the SC- “(4A) Nothing in this article shall prevent the State from making any provision for
reservation in matters of promotion, with consequential seniority, to any class or classes of posts in
the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in
the opinion of the State, are not adequately represented in the services under the State.”. This
restoration is only happening with reference to the SC/STs. Art. 16 (4B)- (4B) “Nothing in this
article shall prevent the State from considering any unfilled vacancies of a year which are reserved
for being filled up in that year in accordance with any provision for reservation made under clause
(4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and
such class of vacancies shall not be considered together with the vacancies of the year in which they
are being filled up for determining the ceiling of fifty per cent. reservation on total number of
vacancies of that year.”
Reservation in Promotions- Jarnail Singh v. Lachhmi Narain Gupta 2022 SCC OnLine SC 96
It is yet another court where we find the SC reiterating the legal position on reservation of the past
30 years. It concerns the difficulty in understanding reservations in promotions. The whole question
of reservation in promotions is not across the board- with regards to persons with disabilities, the
court has accepted reservation in promotion, but not in terms of bakcward classes. Why should
reservation be across the board or across the cadre instead of just appointment? The language of art.
16 talks about ‘appointment’, and does this extend to promotion as well?
Indira Sawhney- overruled Rangachari. “It was argued that an appointment to a post is made either
by direct recruitment or by promotion or by transfer. In all these cases it is but an appointment. If
so, Article 16(4) does undoubtedly take in and warrant making a provision for reservation in the
matter of promotion as well. Learned counsel commended to us the further reasoning in Rangachari
that adequate representation means not merely quantitative representation but also qualitative
representation. He says further that adequacy in representation does not mean representation at the
lowest level alone but at all levels in the administration.”
Although the question was not before the court- as the court was dealing with Backward Class
reservation the court decides to answer it, and not SC/ST.
“Reservation of appointments or posts may theoretically and conceivably mean impairment of
efficiency (Balaji); but the risk involved in sacrificing efficiency in administration must always be
borne in mind when any state sets about making a provision for reservation of appointment of
posts.” (Problematic statements put forward by the bench in Indira Sawhney)- are we arguing that
representation in public level is enough or at every level the representation must be examined.
Indira Sawhney upheld the notion of creamy layer applying to OBCs only, but subsequent decisions
extended it to mean that it applies to OBCs, SCs and STs- not just the matter Indira Sawhney was
dealing with.
Till this point, Indira Sawhney is only confining its judgement to OBCs and requries evidence for
lack of representation, but not for SCs and STs. However, while it was not before the court, the
court attempted to restate the law pertaining to reservation and exxtend it to SCs and STs.
“We see no Justification to multiply 'the risk', which would be the consequence of holding that
reservation can be provided even in the matter of promotion (merit argument). While it is certainly
just to say that a handicap should be given to backward class of citizens at the stage of initial
appointment, it would be a serious and unacceptable inroad into the rule of equality of opportunity
to say that such a handicap should be provided at every stage of promotion throughout their
career.”
“That would mean creation of a permanent separate category apart from the mainstream - a vertical
division of the administrative apparatus. The members of reserved categories need not have to
compete with others but only among themselves. There would be no will to work, compete and
excel among them. Whether they work or not, they tend to think, their promotion is assured.”
“This in turn is bound to generate a feeling of despondence and 'heart-burning' among open
competition members. All this is bound to affect the efficiency of administration. Putting the
members of backward classes on a fast-track would necessarily result in leap-fogging and the
deleterious effects of "leap-fogging" need no illustration at our hands. At the initial stage of
recruitment reservation can be made in favour of backward class of citizens but once they enter the
service, efficiency of administration demands that these members too compete with others and earn
promotion like all others; no further distinction can be made thereafter with reference to their
"birth-mark", as one of the learned Judges of this Court has said in another connection.”
^The fact that it would affect the efficiency of the entire service is an assumption the court is
making- with efficiency of administration being seen as a constitutional value. In a way, the court’s
understanding is confused as it assumes that caste stops existing and is erased after their
appointment- this belief is in turn why the demand for creamy layer is raised- as they are assumed to
be uplifted, and the notion of caste does not impact one’s life since.
“ They are expected to operate on equal footing with others. Crutches cannot be provided
throughout one's career. That would not be in the interest of efficiency of administration nor in the
larger interest of the nation. It is wrong to think that by holding so, we are confining the backward
class of citizens to the lowest cadres.”
“A purist or a legal theoretician may find this direction a little illogical.”
“No doubt the Law Lords will continue to be the targets for those academic lawyers who will seek
intellectual perfection rather than imperfect pragmatism. But much of the common law and virtually
all criminal law, distasteful as it may be to some to have to acknowledge it, is a blunt instrument by
means of which human beings, whether they like it or not, are governed and subject to which they
are required to live, and blunt instruments are rarely perfect intellectually or otherwise. By definition
they operate bluntly and not sharply.”
Nagaraj v. UoI
The amendments were held to be enabling proivisons. This court observed that the State is not
bound to make reservation for SCs and STs in matters of promotion. However, if it wishes to
exorcise its discretion, the State has to collect quantifiable data showing the backwardness of teh
class and inadequacy of representation of that class in public employment, in addition to compliance
with Artcle 335 of the CoI.
While the court upheld the amendment, it demanded evidence regarding adequacy of representation
(representing it as a constitutional canon). It also denied directing the State to conduct state survey
to show such quantifiable data, when the petitioners asked for it. The data should not always be for
inadequacy of representation in the public employment, it also has to show backwardness of the
class.
Jarnail Singh (1)
Refused to refer Nagraj to a larger bench
However, the conclusion arrived at in M. Nagaraj (supra) relating to collection of quantifiable data
showing backwardness of the SCs and the STS was held to be invalid as the same was contrary to a
larger bench judgment of this Court in Indra Sawhney (supra), wherein it had been held by the
Court that conditions of social and educational backwardness are presumed to be satisfied in case of
SCS and STS as they are identified and grouped as such because of prior discrimination and its
continuing ill effects.
The Court rejected the remaining grounds of challenge to the decision in M Nagaraj (supra) and
reiterated that the State has to collect quantifiable data regarding inadequate representation of SCS
and STS in the services of the State, if reservation is sought to be provided in promotions.

Issues framed in Jarnail Singh II

1) What is the yardstick by which, according to M. Nagaraj (supra), one would arrive at quantifiable
data showing inadequacy of representation of SCs and STS in public employment?
2) What is the unit with respect to which quantifiable data showing inadequacy of representation is
required to be collected?
3) Whether proportion of the population of SCs and STs to the population of India should be taken
to be the test for determining adequacy of representation in promotional posts for the purposes of
Article 16(4-A)?
4) Should there be a time period for reviewing inadequacy of representation?
5) Whether the judgment in M. Nagaraj (supra) can be said to operate prospectively?
6) Whether quantifiable data showing inadequacy of representation can be collected on the basis of
sampling methods, as held by this Court in 8.K. Pavitra v. Union of India (B.K. Pavitra II)?
Jarnail Singh II
1. YARDSTICK FOR ARRIVING AT QUANTIFIABLE DATA

11. Articles 16(4) and 16(4-A) are enabling provisions. It was held in M. Nagaraj (supra) that the
discretion of the State to provide reservation is subject to the existence of backwardness and
inadequacy of representation in public employment. It was further held that backwardness has to be
based on objective factors whereas inadequacy has to factually exist.

• Court leaves it to the State

2) What is the unit with respect to which quantifiable data showing inadequacy of representation is
required to be collected?

M. Nagaral (supra) further held that the roster has to be post-specific and not vacancy based.
Collection of quantifiable data regarding inadequacy of representation asstipulated by M. Nagaraj
(supra) is relatable to the cadre concerned,

Union of India submitted that there are 3800 cadres In 44 Ministries/Departments. Fundamental
Rule 9(4) defines "cadre to mean the strength of a service or part of a service sanctioned as a
separate unit, it is the choice of a State to constitute cadres The entire service cannot be considered
to be a cadre for the purpose of promotion from one post to a higher post in a different grade.
Promotion is made from one grade to the next higher grade, in relation to which cadres are
constituted. This Court in Dr. Chakradhar Paswan (supra) has categorically stated that the post of
Director and Deputy Director cannot form one cadre. A cadre is constituted by the Government by
taking into account several factors within its sole discretión.
The manner in which we have understood 14, 15 is in a disaggregate manner- when we look at art.
14, we have adopted a wider view. However, in the reservation debate, we have adopted a narrow
approach- failed to elevate the principles to fundamental aspects of the basic structure of the
Constitution. The reservation debate has meant very little for understanding the equality
jurisprudence in India.
BK Pavitra case is a good example of understanding how judicial interpretation plays around with
concepts of public employment and its significance. Since 1978, when reservation was first adopted
in Karnataka to 1995- there were no challenges but only in Indira Sawhney was it challenged. Are we
looking at any principles such as discrimination, intersetionality or evidence of the same thereof,
purpose objectives of the provisions, if they have changed anything in the ground or not? When we
are asking for data is it quantitative or qualitative (based on higher positions)? Are we relating the
data to the purpose and objectives of art. 16, and how far they have been served? The question that
comes up is do petitioners claiming FRs have the burden of proof that the rights have in fact been
violated?
When we are claiming efficiency of administration as violation of FR by elevating it to a
constitutional value, then who has the burden of proof? When we say discrimination has evolved
since earlier times, and look at it in the context of disability jurisprudence- it still exists in the form
that absence of persons with disability is still discrimination- the focus is on the results, and if the
result in some manner has left behind groups of people, that itself is discriminatory.
The particular understanding that the reservation provisions based on substantive equality are not
FRs is unfounded. They are FRs, and we cannot say they strive for substantive equality without
considering them as FRs. They are not simply enabling provisions as the scope of the rights would
be curtailed. We have to interpret these provisions in a manner that we interpret FRs- broad, can
operate at the level of principles, not simply enabling provisions.
Post Indira Sawhney, the ‘service jurisprudence’ has evolved. On the one hand, everybody knows
that promotion is not a fundamental right and a guarantee- then how does the concept of
promotion or seniority impact FRs? While interpreting these provisions, would it matter if we
needed to look at the objective of the provision, and would the objective be served if we have
promoted a person but don't consider the person to be a senior? The whole objective of reservation
is to change the status quo, and this status quo would inevitably change through this, and it is often
perceived that this change in status quo is a violation of FR.
We had cases that went and challenged the promotions that were granted in the older rule that the
State has not shown enough data, and hence the provisions were struck down. All the provisions in
Karnataka since 1978 were being challenged in BK Pavitra, and in BK Pavitra II the argument was
that the State Govt instead of implementing the SC’s order has in turn collected more data to show
the need for reservation in promotions through the sampling method. BK Pavitra II case was trying
to restore the promotions that were struck down by the SC. BK Pavitra II overruled BK Pavitra I,
and upheld the actions of the State Government. Then, Jarnail Singh II in 2022- the manner in
which the data collected in BK Pavitra II was invalid (focussed on it being an enabling provision)
and therefore, the jurisprudence took a step back.
The Court is looking at an empirical based understanding than a principle based understanding. The
Court has repeatedly held that on a principle-basis these are anti-discriminatory measures, giving the
state the leeway to make these provisions then why do the consequential actions fall out of tune with
the principle based understanding? Then, one seems to wonder whether the principle of effective
representation and not simply token participation is settled at all. Any mechanism of substantive
equality is bound to create some level of difficulty. One cannot talk about extending equality rights
without disturbing status quo. This is where all of these cases are pushing back against the broader
principle of accepting reservation as a part of substantive equality.
How relevant are the facts and specific contexts of these cases, and how are they weighed against
thep principles in question?
Scope and interpretation of rights:Proportionality:Constitutional Rights and their Limitations:
Aharon Barak
• Scope and extent of realization
• Purposive interpretation
• Subjective and objective purposes which is the intention and function of the text
• Constitutional rights as principles-majestic generalizations
• Significance of an ideological framework and shared values in comparative constitutional law
• Generous interpretation to give effect to underlying -full scope of the ideals and moral
considerations-should not be limited on consideration of rights of others
While purposive interpretation is a well-accepted principle in Indian Constitutional law, in none of
these cases are the court adopting purposive interpretation. Barak argues that when we are looking
at a constitutional text, it is different from purposive interpretation of a statute, as statutes are meant
to deal with specific questions, but constitutions are not meant to cater to simply that specific
situation but caters to many other cases, involving that principle. For example, the scope and
objectives of Art. 16 (4)- whose right are we supposed to consider here? The persons who have
challenged these actions are not beneficiaries of Art. 16 (4)- when we say these are enabling
provisions then the questions that come up is who is the petitioner, what is the claim of the
petitioner and how are his FRs implemented? The petitioners are usually claiming rights under Art.
16(1)- equality of opportunity in public employment is being defeated. If that is the petitioners claim,
it should automatically include the rights of those persons who are beneficiaries under Art. 16 (4),
and not just the claim of the petitioner under Art. 16 (1). It is peculiar that the evidence of under
representation is not being asked from the petitioner (the meaning of purposive interpretation)- the
court goes back to raise the question to the State. In terms of constitutional interpretation, it seems
to be more about how the courts are exercising review over the state’s power to legislate on it, rather
than an investigation of the extent of the right violated, and the measure the violation of the right.
Here, the burden is shifting from the petitioner completely onto the state, to make the state
demonstrate how and why the rights are being violated. The discourse that is particularly absent is
the extent of the violation of Art. 16 (1) and violation of equality of opportunity. This is the contrast
in the way the court approaches rights under Art. 14 and Art. 15, 16. Art. 14 takes us to a discourse
on constitutional principles but when we come to Art. 15 and 16, the constitutional principles are no
longer the center of the discourse. Again, when we move to Art. 19, we see a generous interpretation
of the constitution and we start with setting out the right in its full context and not its limitations or
exceptions to this right, but this is again in contrast to Art. 15 and 16. Since we have not read Art.
15, 16 as FRs, and as enabling provisions we have prevented any jurisprudence on equality of
opportunity to emerge. The court has not set out when an equality of opportunity is infringed. The
matter of caste-based, religion-based discrimination in the private sector has not reached the court at
all, as the court has stayed within a very narrow area of simply examining state action and its
justification for reservation.

Extending reservations for backward classes- Neil Nunes V UOI (2022)

Why is the SC/ST context distinct from the OBC context?
First, one is a constitutional category.
Second, in Chinnaiah v. State of Andhra Pradesh which concerned the sub-categorisation of SC/STs
to ensure greater representation of the weaker section within the SC, the court held that there can be
no sub-categorisation.
We are looking at graded inequalities and not just absolute inequality. The distinctiveness of the
caste system is that it isn't just an upper caste and lower caste distinction like is the case with racial
discrimination. Graded inequality exists in the caste system context.

1. Understand the distinctiveness of each of the categories – SC, ST, backward, domicile
2. SC decisions - Art. 15 and 16 – reading rights vs. conflating them – what ought, ought not to be
borrowed
3. Reservation – in education and employment – gap between operationalisation and the principle –
Stating 15(4) and 16(5) are not exceptions but not recognising it as an independent right in its
entirety – operationalisation in education and employment also needs to be distinct | NEET
objection to an all-India entrance exam – Rajan Committee | education as an opportunity vs.
employment – opportunity to be in positions of power and decision-making – how do you
operationalise the principle? Ways to operationalize better | Term "provisions" in Art. 15 –
connotes not only reservations but lends it a wider understanding, which is much needed.
Dimension of federalism – Maratha judgment – can different state governments prescribe different
qualifying marks; Preeti Srivastava case: no minimum qualifying mark
4. Reservations as enabling provision – SC: merit as a social construct, cannot be understood in a
non-contextual manner - Does right = empirical facts? – who has to show that there has been an
impairment of efficiency, which the SC has assumed.

1) Understand the distinctness of each category- EWS, SC/ST, OBC, Domicile

2) SC decisions have conflated 15 and 16. Balaji says that 15 and 16 are the same thing in this
context.
While the idea of reservation is in principle good for substantive equality, its
operationalisation needs to be in tune with the principle.
When the principle of reservation is correctly states, the need for operationalisation of the
same in education and in employment needs to be distinct.
4. When we talk about interpreting a right, we talk about purposive, generous interpretation,
but when we are talking about a right, do we need to ask for empirical facts? Who is being
asked to show that there is no impairment of efficiency of administration by reservation. In
these cases, we have assumed that not having a minimum qualifying marks in the
examinations show that they are not eligible or capable to study the course.

NEET examination controversy:

The same questions were much harder in Tamil. The Rajan committee report recommended that
NEET be done away with. The concept of Centralised tests was questioned. Further, if you are
taking a test how much weightage do the results of the marks hold in the admission process?
Discussion over the entrance test and its approach.So education and a different approach from
reservations in employment.
In the case of postgraduation, can state governments prescribe different eligibility and cut-off
marks?
In the Priti Shrivasta Case, the state of UP said that those from the reserved categories dont need a
minimum threshold.

“The constitutional protection of equality before the law under Article 14 of the Constitution is one of the basic tenets
of the Constitution. It is a cardinal value which will govern our policies and actions, particularly policies for
employment and education. Article 15(1) prohibits State discrimination on the ground (among others) of religion, race
or caste. Article 16(1) prescribes equality of opportunity for all in matters relating to employment or appointment to
any office under the State. Article 16(2)prohibits discrimination on the ground (among others) of religion, race, caste
or descent. At the same time, the Constitution permits preferential treatment for historically disadvantaged groups in
the context of entrenched and clearly perceived social inequalities. That is why Article 16(4) permits reservation of
appointments or posts in favour of any backward class which is not adequately represented in the services under the
State. Reservation is linked with adequate representation in the services. Reservation is thus a dynamic and flexible
concept. The departure from the principle of equality of opportunity has to be constantly watched. So long as the
backward group is not adequately represented in the services under the State, reservations should be made. Clearly,
reservations have been considered as a transitory measure that will enable the backward to enter and be adequately
represented in the State services against the backdrop of prejudice and social discrimination. But finally, as the social
backdrop changes ? and a change in the social backdrop is one of the constitutional imperatives, as the backward are
able to secure adequate representation in the services, the reservations will not be required. Article 335 enters a further
caveat. While considering the claims of Scheduled Castes and Scheduled Tribes for appointments, the maintenance of
efficiency of administration shall be kept in sight.”

When you read 15(4) it only says socially-educationally backward, and ot historically disadvantaged.
When the words historical disadvantage has been used then you vant look at their status today and
the empirical data regarding the same.
When we talk about the extent of a constitutional right, we further discuss the need of calibrating
the extent of equality that the reserved classes need to enjoy but in context of others. It doesnt need
to be measured in terms of another person’s right.

Gallanter’s compensatory discrimination:

“These compensatory discrimination policies entail systematic First, departures from norms of
equality (such as merit, evenhandedness, and indifference of ascriptive characteristics) These
departures are justified in several ways as needed as needed persistence of such presumes are of
preferential treatment may be viewed subtle and Indirect forms the of beneficial results that will
integration use of neglected talent, more etc. these two-the anti-discrimination theme and the general
welfare theme - is entwined a notion of historical restitution or reparation to offset the systematic
and cumulative deprivations suffered by lower castes the past. These multiple justifications point to
the complexities of pursuing such a policy and of assessing its performance.”

In Priti Srivastava, the court ruled that we cannot have a quota for minimum marks but can have
differential minimum marks. While the study showed that people from the medical college, 1-3rd
year people performed differently but at par in the 4-5th year. When we are admitting people to an
educational course, theme the burden is shifted to the education as to whether it has taken cafre to
ensure that those who require more support and attention to perform. When the education puts the
burden on the students to perform, then its evading its own responsibilities.

Ashwini Deshpande has done a study on caste-based discrimination argues that the examination
system itself is to promote privilege. The more rigorous, the difficulty of the examination is to leave
out people and the object is to separate out classes of people. It is not to test students as to what
they have learnt but set out a hierarchical system. In this context, should we think of education
differently from employment. Here, Priti Srivastava says that since there is such a reservation for
employment there would be education as well.

In the present case, the disparity of qualifying marks being 20% for the reserved category and 45%
for the general category is too great a disparity to sustain public interest at the level of post-graduate
medical training and education. Even for the M.B.B.S. course, the difference in the qualifying marks
between the reserved category and the general category is smaller, 35% for the reserved category and
45% for the general category. We see no logic or rationale for the difference to be larger at the post-
graduate level.

At the level of admission to the super speciality courses, no special provisions are permissible, they
being contrary to national interest. Merit alone can be the basis of selection.

Indira Sawhney v. UoI has also observed that in certain positions at the highest level merit alone
counts. In specialities and super-specialities in medicine, merit alone must prevail and there should
not be any reservation of posts. The observations in Indra Sawhney & Ors. v. Union of India &
Ors.(supra) were in respect of posts in the specialities and super-specialities in medicine.
Chandrachud distinguishes the reservation in post-graduation in medicines case from the present
case. The question before the court is only on the cutoff. Another case the court referred to is
Pradeep Jain Vs UOI case, which pertains to the domicile quota.
The Neil Nunes case is about the domicile reservation.
The specific context of these cases is reservation in UG/PG medical streams. Why are reservations
considered problematic? It stems back to our understanding of Indira Sawhney, where while the
court held ti was not anti-merit, but there is a gap between the way in which the principle is stated
and the way it is operationalised. There were many ways in which the principles were operationalised
that meant something very different- it modifies the principle of being anti-merit by holding that you
need it only at the initial stage of entry and not subsequently. This implies that there are limits to
which we are accepting the equality argument.
When we look at limits to the equality argument, we can understand the domicile reservation
argument. Therefore, stemming from the Indira Sawhney logic that there are limitations to the
whole Indira Sawhney concept that reservations are not anti-merit and there are places where
reservations wont apply (promotions etc, post-entry), and there are certain places where reservations
cannot apply (single position in universities where we cannot have reservations, super-specialisation
where we cannot have reservations, matters of reservation etc). The medical seats was a particular
context in light of this. A common entrance test is expected to correct or offset the imperfectness in
the present schooling system and creates its own imperfectness. When we have state governments
that have set up for purposes of that particular state- to what extent are they authorized to cater to
that state? This whole business of education being in the concurrent list and this whole
determination of backwardness is something the state government can do differently. Through the
NEET, the central governments override the mechanisms in which admission occurs (existing
systems of admission through state).
To what extent can we ask state institutions to cater to the national requirement? The question of
whether state governments can cater to their own requirements of domicile-based reservation is
constitutional or unconstitutional? In that context, the court sets out certain rules that on occasion
1) only merit should be taken into account, and 2) we cannot have reservations on the basis of
domicile. In this sense we have two emerging principles.
In Pradeep Jain the question was whether a domicile based reservation is anti-merit and violative of
the principle of equality. The SC made certain observations which seemed to indicate that when we
have a domicile and an open category (all india quota), and since an open category is an exception to
the rule of reservation- it is a purely merit quota and cannot have reservation. It was pre-Indira
Sawhney so the question of OBC reservation does not arise. The open category has to only be on
the basis of merit. Whether domicile goes against merit became the question in the Neil Nunes case.
Since the institution is a state institution, all reservations that the institution follow must be state
reservations not national reservations- the state institutions must follow reservations applicable to
the state (for central level- OBC quota was not implemented but was used at state level for years).
Excerpts from Pradeep Jain:
13. We may now proceed to consider what are the circumstances in which departure may justifiably
be made from the principle of selection based on merit. Obviously, such departure can be justified
only on equality-oriented grounds, for whatever be the principle of selection followed for making
admissions to medical colleges, it must satisfy the test of equality. "One law for the Lion and the Ox
is oppression,"
The scheme of admission to medical colleges may, therefore, depart from the principle of selection
based on merit, where it is necessary to do so for the purpose of bringing about real equality of
opportunity between those who are unequals.

When we talk about minority based institutions, why are reservations not applicable to them? Isn't it
contrary to the idea of substantive equality? But it is to cater to the under-served and this is
analogous to domicile reservation- it is not simply based on geographical territory but they are
underserved and therefore, there is a need for special provisions on the basis of geographical
territory as well. It was later argued that since Pradeep Jain has directed that it would only be on the
basis of merit, it cannot be on the basis of domicile based reservations, but we have to examine what
it actually meant- it is being read wrongly.
“22. We are therefore of the view that so far as admissions to postgraduate courses, such as M.S.,
M.D. and the like are concerned, it would be eminently desirable not to provide for any reservation
based on residence requirement within the State or on institutional preference.
at least 30 per cent of the open seats shall be available for admission of students on all India basis
irrespective of the State or university from which they come and such admissions shall be granted
purely on merit on the basis of either all India Entrance Exam or entrance examination to be held by
the State.”
While Pradeep Jain des say that it cannot solely be on the basis of merit, the departure can be
justified if it is furthering substantive equality. In very generic terms, the court is setting out that one
can have different forms of equality over different sets of people. Its interpretations looks at the
evolution of the concept of merit over decisions as the efforts one puts.
Interpreting the ratio in Pradeep Jain

• The observation of this Court that AIQ seats must be filled purely on the basis of merit, cannot be
interpreted to mean that there shall be no reservations in the AIQ seats. As noted in Section D-1 of
this judgment (paras 26 to 42), merit must be socially contextualized and reconceptualised according
to its distributive consequences where it furthers substantive equality in terms of Articles 15(4) and
15(5) of the Constitution. The reference to merit in para 21 of the judgment must be read with the
previous observations made in the judgment.
Pradeep Jain is in no way interfering with the reservation in the domicile quota, it only looks at the
AIQ. It used this justification to argue that reservations in the AIQ can no longer be valid.
Priti Srivastava’s obiter that we cannot read merit into the super-specialisational level was not
applied as it was on cutoffs and eligibility, while this case was not. This is how the court navigates
through previous precedents and its interpretations allows it to say that the reservations are valid.
Conclusion in Neil Nunes:
the reservation for OBC candidates in the AIQ seats for UG and PG medical and dental courses is
constitutionally valid for the following reasons:

• Articles 15(4) and 15(5) employ group identification as a method through which substantive
equality can be achieved. This may lead to an incongruity where certain individual members of an
identified group that is being given reservation may not be backward or individuals belonging to the
non-identified group may share certain characteristics of backwardness with members of an
identified group. The individual difference may be a result of privilege, fortune, or circumstances but
it cannot be used to negate the role of reservation in remedying the structural disadvantage that
certain groups suffer.

We need to look at what is it that article 14 and article 15 are trying to achieve. Its different types of
equality but they are not necessarily competing with each other.
This is where standards of judicial review becomes relevant, for do we need different standards for
14 & 15 or is it fine to have a single standard.
When everyone knows that the right to education is not a FR, it is a basic capacity that must be
given- it is a fundamental foundational capacity that we seek to build- when we talk about R2
Education, we do not attempt to locate it in 21, 14 etc., although we have located it in 21 as a
positive obligation of a state. It just cant stay confined to 21, as it is as important to equality, non-
discrimination, personal liberty and expression.
Where have we located the debate around reservation in education, and how is it different from
employment?
There is no right to public employment but it is different for education. While borrowing from 15 to
16- equal opportunity in education, cannot have overrepresentation of the elite. If we are borrowing
the idea of adequate representation- there are institutions that are tribal residential colleges, women
residential colleges, as there is a need for giving opportunities to certain people and we do not claim
it to be violative of 15, as we require adequate representation.

Is 100 percent reservation for tribals and women in these institutions justified? The problem with
the reading together of rights is that it must be done very carefully. In the entire debate on
reservation, we did not see a reading together of 14, 15, 19, 21. In terms of understanding the
current jurisprudence of the SC, it is useful for us to see how we may apply different standards for
different exercises does not make it arbitrary, it becomes arbitrary when we are unable to justify
which standard to use over the other in a particular situation.
The central argument of the paper- The central argument of the paper
It is the author's opinion that a violation of the fundamental rights guaranteed by article 15(1), article
19(1)(a) and the negative rights under article 21, in the very least, deserve an intense review because
these are very special rights

• Applying a single standard (usually low, deferential) as against higher standards-typically strict
scrutiny or proportionality review

The precise content of 'strict scrutiny' and 'proportionality review' is deeply controversial in their
respective jurisdictions.

It comes up with a new standard of review- RSR (Rigorous Standard of Review)

How is RSR different from the classification test?

In the United States, strict scrutiny or suspect legislation applies only in particular types of
classification. The ‘equal protection of law’ idea is not necessarily based on suspect legislation or
strict strutiny. The diff bw the US, and India, is that in India there is an explicit provision prohibiting
classification on the basis of caste- so are all types of classification on terms of caste prohibited? The
reason why we are separating 14 and 15 cases, is that 14 is a more generic provision on equal
protection but 15 is narrowly tailored to a particular purpose.

If we read 14 very narrowly, then the grounds mentioned in 15 cannot be applied to any other
article. Is 15 capable of being used in analogous ground?- is disability which is not mentioned also
implicitly included in 15? One level it becomes important to read 14 and 15 together (in the context
of disability as it is not mentioned in 15, and should we read 15 as a general non-discrimination
provision)

We need to move beyond the strict scrutiny standard as the test comes from a jurisdiction where
some laws were inherently suspect. India on the other hand, is a system where laws have been made
with classification for social welfare. Strict scrutiny comes from a context that the State has actively
tried to discriminate against races- but in India the state has actively protected against caste-based
dsicrimination. The idea of purposive interpretation is not to discard the text, but to read the text in
a particular way- we cannot move away from 15 entirely, but read it in a particular way. We need to
move away from strict scrutiny and this is similar to due process- where not the entirety, but certain
components get invoked. While strict scrutiny does not apply per se in India, certain components of
it may in particular contexts.

Are certain rights capable or intended to be given a very different effect from other rights? There is
a theory that all provisions must be read harmoniously read, so does it meean every article needs to
be given the same effect? No, inevitably some articles are given a particular interpretation and some
other are highlighted- not equated. When we look at 15, 19, and negative rights under 21, in the very
least, deserve an intense review because these are very special right.
Even in administrative law, we have what is known as ‘heightened scrutiny’ and ‘anxious scrutiny’.
Why would administrative authorities be expected to carry out an anxious scrutiny? In cases of
deportation and immigration laws, judges are expected to not follow a strict interpretation of rules
but the consequences on the person. All cases on administrative state decisions are not to be taken
alike- all do not have the same impact. When we are willing to acknowledge that there are particular
impacts that are more significant than the other- it deserves a closer look than the other. Similarly,
there is a need to move beyond strict scrutiny to a new standard as proposed by Khaitan- Rigorous
Standard of Review.

Difference between RSR and Strict Scrutiny

Strict Scrutiny- In Art. 14, we have seen that any rationale or basis would hold for intelligible
differentia, but for strict scrutiny there cannot be any basis but there has to be compelling state
interest. This is being found in recent reservations for SC/STs as there is a need to produce
evidence for backwardness or under-representation to show the need for reservation- elements of
strict scrutiny has begun creeping in. There is a further element as to whether the particular method
being used is the best possible way in which you could have addressed the situation- now referred to
as the proportionality test.
Strict scrutiny was seen in Anuj Garg, where there was classification and a restriction of women
from employment. Using a different standard completely changes the outcome, as it is not enougg
to say men and women are different but what is compelling state interest in prohibiting women from
working. If widespread violence against women is the competent state interest, but then hte next
component if it is the best possible way becomes relevant.
The legislation in the first place becomes suspect as it is giving away a right in itself- right to
employment for women.
If we use strict scrutiny as analogous for reservation, where we are taking away seats for X for giving
to Y. By conferring an advantage on one, are we necessarily conferring a disadvantage of the other.
No one is seeing the previous legislation in Anuj Garg as a competing right but in the reservation
cases, it is a competent right as when we are reserving for one group- the other group claims
violation of their rights. An analogous situation would only be if 30 percent of positions in bars were
reserved for women. Therefore, Khaitan argues that we cannot use strict scrutiny for caste-based
reservations. The question of reservation is not about taking away a right, but focusses on conferring
benefits to a particular group. The presumption is that there is an ‘elite capture’ and attempts to
reduce the elite capture- as it is trying to address an imbalance which is created in the first place.
Proportionality is a different standard of review, while it is a component of strict scrutiny, as it is
bringing conflicting principles. It should be confined to Art. 19 as we have clearly set out two
distinct principles, which are equally imporntant- freedom of speech and rights of a community are
equally important- where the right of freedom of speech may be curtailed in certain instances- as
there is a question of balancing two principles. The exercise of proportionality in strict scrutiny is
combining it to some other value or test, which has to be done before proportionality thereby
making it a second stage review, after the first limb which focusses on establishing the right and why
it is being infringed. If we start off with proportionality and balancing then the scope of the right
becomes very limited. Even if we cross the first stage of compelling state interest in the context of
women in Anuj Garg, is prohibiting employment the best way of going about it. In cases where
proportionality is used as a standalone test for 19, it is important to set out the scope of the right
before applying the proportionality standard.
The argument we are making here is not that strict scrutiny is a bad test, but where do we use it-
what are circumstances that demand it and what are circumstances that do not demand it. The idea
of proportionality is that after meeting the initial requirement of legitimate classification, do we need
to ask something after that as well.
Before jumping into classification, if we looked at what equal protection of law meant- we would
have perhaps had a different understanding of constitutional rights- the problem is the emphasis on
the standard over the right itself. The scope and limitations of constitutional rights is overlooked by
the standard itself.
Constitutional Adjudication
We should not start with limitations or balancing, but set out the scope of the right in the widest
manner possible. This is what Barak is trying to explain when we are talking of the extent of the
realisation, of the right.
Scope of the right-widest manner possible. Art. 19 is relevant as the constitutional right itself talks
about the right and its limitations.
Limitation on the right or as Barak puts it the extent of its realisation or the justification for its
infringement-for example reasonable restrictions on rights under a.19-necessity of state interest-
legitimacy importance of the state interest.
Nexus-necessity of the particular measure, suitability for the particular action-balancing (these three
together constitute the proportionality review).

When we are reading rights together- art. 19 and 14- 19 explicitly talk about restrictions but not 14-
so does this mean 14 is subject to restrictions or is it not? Is the right to equality which is a limited
right subject to certain restrictions? The classification test comes in to tell you that there is no
absolute equality, there would be limitations and the question is how does one understand when the
limitation comesi nto effect and what the limitation is. A. 19 tells us what the limitations are and the
better way of understanding 19 is that only these limitations are possible and nothing else is. For
example, hate speech is not mentioned in 19 (1) (a) or 19 (2)- then we still have to cosnider whether
hate speech is a part of 19, and whether a legislation made on hate speech is violative of 19? Is hate
speech the same as public order or distiurbing frinedly relations with States- we have to extend hate
speech in this narrow approach. Another understanding would be that there is no way of restricting
hate speech unless in these specific contexts and grounds mentioned in 19. Can A. 14 be subject to
limitations on unspecified grounds? Therefore, the question of whether 14 is infringed or not
becomes moot. The scope of constitutional adjudication as Barak puts it- the difficulty with the
Rajbala case is that the right to equality is infringed or not in terms of deprivation of right to vote is
not set out in sufficient detail before jumping to classification. Therefore, a better way of
adjudication is setting out the scope of the right before jumping into the limitations. Even the
classification test can be properly used if we are involving ourselves in setting out the scope of the
right first, for anyone involved in constitutional adjudication. This helps in understanding the extent
of its realisation. ‘Extent of its relatiosation’- is a qualitative assessment of the nature of the right
rather than a justificatio for its limitation. For example, in the Nargesh Mirzah case- instead of
questioning the arbitrariness first, we must look at whether the right to equality of men and women
extend to claiming the same conditions of employment. We are not necessarily talking about the
limitations on the rights, but the extent of its realisation. In the Rajbala case, the justification or the
stage of compelling state interest should only come after the extent of whether the right to vote is a
FR is set out. The problem with Rajbala is that the court has not understood the right itself in the
first instance. In constitutional adjudication, if we try to engage with the scope of the right before
looking at when it is limited is a very different exercise from seeing it as a part of the same test, than
moving one against the other. The problem with the proportionality test is that it starts with the
balancing before looking at the scope of the right itself, and it can be answered on these grounds
before looking at the limitations on the right. In Champakam Dorairajan, she did not even set out
which right is being infringed and how she is affected through reservation- the onus automatically
shifted to the court- the question of whether the extent of the realisation of the right in the first
place, should have been raised. In Zee Telefilms, the court did not even address what the right is
being violated, it only looked at whether the BCCI is a state or not. In Sukhdev v. Bhagatram- the
reason why we wanted to expand the scope of art. 12 is to give a wider interpretation of the term
‘state’, but not the question of the right in itself.
The other idea is the idea of nexus- or the necessity of the particular measure, the suitabiilty of the
particular action and balancing. These together constitute the proportionality review. It should not
be a first stage question. Barak is not talking about only proportionality but about purposive review-
and the first question is the ‘purpose’ question which is the rights question. Barak elaborates further
by looking at the difference between the nexus question and the interest analysis.
Only interest analysis can stop with the need for hte restrictions- legal or legitimate but not
compelling or important- this could be the low standard of review.
Similarly, the nexus analysis asks only the suitability question and not the necessity question.
RSR- interest analysis is legitimate and compelling and the nexus analysis is that the nexus between
the interest and the means are proportionate.
The reason why we are talking about it in terms of the RSR- is that the RSR asks us to look at both
nexus and interest- the interest must be legitimate and compelling (importing from strict scrutiny)
and nexus analysis is from the proportionality review. RSR combines strict scrutiny with
proportionality.
Scope of the rights (from Barak)
Full scope of the ideals that the right is intended to achieve in a given society. Art. 19 (1) (a) rights
talks about citizen and talks about engagement with the State and is not an exercise of privacy, and
here when we are talking about what the right is, its content and where it is well suited sets out its
scope. A particular speech must be protected till it is proved that it violates the grounds laid out in
art. 19.
It should reflect the moral considerations underlying the right. If we are saying particular forms of
speech can be protected under 19 (1) (a), then we must look at what kinds of speeches are protected
under it.
It does not include tenuously related issues (for example does the right to free speech include
perjury or a threat or hate speech). No one can claim to be protected when one is sending death
threats or rape threats to people.
The abuse of the right still contemplates that a right exists but enters into the picture only after
setting out the scope of the right. Firstly, the right must be established and only then can we look at
its abuse. It is a qualititative decision making that must be used in such cases. The right must be set
out before we can talk about its abuse.
Similarly the right of others cannot enter the picture at this stage.
What is the ‘compelling state interest’ in the question of abortion- what is the state’s intertest in
ensuring the child is born- in cases of abortion, the strict scrutiny test would entail asking questions
as to who are the others that are intervening- conflicting of rights and competing rights. If we use
the rights just the FRs and scope of the FRs, many questions can be answered before moving into
the other aspects.
Scope of the Limitations-
Not narrow or generous but purposive. The nexus analysis involves why and how the right is
infringed.
Balancing conflicting constitutional principles.
Two-stage model of judicial review. The rights stage and limitations stages are distinct stages which
cannot be mixed. It is unfortunate if we use the limitations along with the rights. In the terminancy
of pregnancy question- whether the woman has the right to terminate her pregnancy and whether it
is limited is convoluted the two stages.
For example, public interest is relevant in the second stage of JR as part of the justification of the
limitation of the right.
It would be unfortunate for the right to be affected twice.
- Once at the stage of its scope and
- Again when limitations are imposed on an already restricted right.
Significance of art. 15
- The exact same test as an unspecified ground under art. 14- in fact may actually be weaker as
it also mentions suspect grounds of classification.
- J. Ramaswamy in Madhu Kishwar held that the test under art. 15 is essentially the same as
that under art. 14- ‘when women are discriminated only on the ground of sex.. The basic
question is whetehr it is founded on intelligible differentia and bears reasonable or rational
relation on whether the discrimination is just and fair’
- The Madhu Kishwar case is a PIL that was filed on behalf of a tribal woman whose husband
was working in the government service. The question was whether the property would be
inherited by the tribal woman as self-acquired property, or the personal laws applicable to
them. The two cases on Art. 15 being referred to- Zoorashtrian Housing Society and this
case, when we state the ground of discrimination, it is held that it cannot be caste. However,
in cases such as Champakam, caste is looked at as any caste and the court has looked at
reverse discrimination against upper caste. The significance of making an argument under
art. 15 and not art. 14, is a way to connect these words in the terms of caste, race or sex. In
Madhu Kishwar, we are talking about a minority community and how we interpret the law
applicable to it. In Zoorashtrian Housing Society case we looked at how a minority
community is perpetuating discrimination by excluding people from other communities- it is
to create a state that allows for the practice and culture in a particular way. There was an
argument made in ZHS case that it is a minority religious group that is protected under art.
29 and art. 30. The court did not decide on this. Madhu Kishwar is an interesting case, which
looks at art. 29 and art. 30 about what it means to protect culture. There were two opinions-
J Ramaswamy while upholding the right under art 21, holds that the test in 14 and 15 is
essentially the same. When the court is looking at 15 distinctly, it is equally true that there is
no significant jurisprudence arising out of 14 that asks the court to make the test for 15
 different from 14. He holds that it is founded on intelligible differentia and bears reasonable
rational relation or whether the discrimination is just and fair.
- The result cannot determine what to do or the approach. Do we use art. 14, or use anythign
in 15 that helps us arrive at the decision? The questions of discrimination are not given
enough attention under 14- if we simply use arbitrariness and classification.
- A cynical explanation for the judicial nondevelopment of article 15 is the complex existence
of religion-based and gender-unjust personal laws in India
- This has ensured that article 15 has not been given any meaningful content of its own, for a
powerful article 15 cannot co-exist with religion-based and gender-unjust personal laws
- Githa Hariharan (1999) falls to resolve the claim of non-discrimination Whether the interest
analysis in this case I need to uphold father as guardian) and the nexn analysis perpetuating
sex discrimination. This is a case of gender based discrimination, and an explanation as to
why we do nto have a robust jurisprudence on art. 14 - on the question of whether personal
law is law or not (which is still not considered as law by the SC). This is relevant as there was
a statute- Hindu Minority Religious practices, and was a codified statutory law made by
Parliament, and the question whether art. 13 was relevant or not- the provision of
guardianship (father guardian, in the absence of which it is the mother- prima facie
discriminatory but it is influenced by personal law) was challenged- here we see the court’s
performing the role of reforming the religion, where J Banerjee holds that even this
provision of mother after father is not discriminatory, and in turn justifies it. If we started
with the idea that discrimination exists, then the provision should have been struck down
adn the legislature should have reformed the law in a way in which fathers and mothers are
considered equal. However, the court read in its own version of Hindu law into the legal
sphere talking about Hinduism respected women and did not discriminate.
- Such provisions are either termed arbitrary for lack of reason but not considered
discriminatory. Both in Sabrimala and in Triple Talaq, the court does not use discrimination-
which shows how the court struggles with discrimination and does not deal with it. This has
ensured that article 15 has not been given any meaningful content of its own, for a powerful
art. 1 cannot co-exist with religion-based and gender-unjust personal laws.
- To get back to the RSR test, Khaitan talks about two aspects of it:
a) Scope of the Right (Interest analysis)- We consider whether there is a ‘compelling
state interest’ for the court to uphold the father as a natural guardian. There is
somewhere a need to uphold the primacy of the father as a natural guardian and
whether the interest is a legitimate state interest (whetehr constitution would require
one to do). In this case, it would be whether the interest could be justified.
b) Nexus analysis- The relationship between how one is trying to uphold the interest
and whether the legislative tool has been exercised.

Breaking Down Anuj Garg

• The arbitrariness test could have been used to arrive at the same result in Anuj Garg- but it
would not have considered the question of discrimination. Such standards are used to not
arrive at particular decisions, but the process behind arriving at the decision and the
understanding or basis behind the decision. The narrower test could have been reached to
arrive at the same conclusion as it is important that the court does not do so, and gives a
comprehensive and complex understanding of its decision.
- The business of trying to understand what the court did in terms of the RSR, can we say that
the court in Anuj Garg actually used this doctrine?
To understand Personal autonomy-right to self determination and individual choice, the
court held:
- "The bottom-line in this behalf would a functioning modern democratic society which
ensures freedom to pursue varied opportunities and options without discriminating on the
basis of sex, race, caste or any other like basis."
- Does this raise the question of individual choice and is this what the court is trying to do
here? While 15 talks about a community status or a group status, while answering the
question of discrimination- how much does the belonging to a group impact personal
autonomy? Does the right of particular people get affected and should this be phrased as
questions of choice, or is it problematic? The choice paradigm might not necessarily be the
best way to understand the statement, but T Khaitan seems to be understanding the
statement as personal autonomy, right to self-determination and individual choice. It
addresses the freedom to take decisions which should not be hindered by other
considerations.
- • Immutable status and fundamental choice
- • What the grounds listed in art. 15 have in common is that they often serve as the basis for
stereotypical decisions made not on the basis of merit but on the basis of a personal
characteristic. Are we attempting to make an argument that any other ground that resembles
the grounds are being listed as the question of immutable statements?
- The equality bill is being proposed by TK to address discrimination on a broader lens- which
includes more grounds on which discrimination may occur, and must be prohibited.
- This brings the question of group vulnerability.
- [T]he issue of biological difference between sexes gathers an overtone of societal conditions
so much so that the real differences are pronounced by the oppressive cultural norms of the
time.
- • Constitutional provisions define grounds in a way that speak to both the powerful and the
vulnerable (men and women). One of the first cases on discriminaitno was raised by an
upper-caste woman in Champakam claiming reverse discrimination.
- • Interest and nexus analysis in Anuj Garg-qualified reasonableness and proportionality.
Qualified reasonableness- it is not simply the existence of reason but it is a reason that must
be legitimate. The nexus question is whether the compelling state interest was met with in
the best way possible.
- Difference between RSR and Strict Scrutiny
- Analogous grounds? Extension to all deserving grounds and groups.
- • Strict scrutiny confined to specific groups. Can we extend the non-discrimination principle
under RSR to other groups as well. There is a way in which RSR standard allows to extend
the non-discrimination principles to other groups- to gorups which suffer comparable
discrimination. If we subject all of those to the same scrutiny, then we can give a wider effect
to non-discrimination.
- • What constitutes affirmative action-one that enhances personal autonomy-
- Thus, the first limb of strict scrutiny test that elucidates the 'compelling institutional interest'
is focussed on the objectives that affirmative action programmes are designed to achieve.
- The second limb, that of 'narrow tailoring' focuses on the details of specific affirmative
action programmes and on the specific people it aims to benefit (Ashok Kumar Thakur
case).
 - Ashok Kumar Thakur case rejects strict scrutiny only in those cases where constitutional
provisions are explicit. There is a way in which we read the opinion, where we have Anuj
Garg saying we can use the elements of strict scrutiny while AK Thakur (larger bench) says it
cannot be used.
New and old doctrines of equality:
Anuj Garg, Naz, Suresh Koushal and Rajbala
Anuj garg:
Debate on individual rights of women vs practical import of enforcement and security
self-determination and an individual's best interests
itself may not be a fundamental right but in terms of both Articles 14 and 16 of the Constitution of
India,
each person similarly situated has a fundamental right to be considered therefor. When a
discrimination
is sought to be made on the purported ground of classification, such classification must be founded
on a
rational criteria. The criteria which in absence of any constitutional provision and, it will bear
repetition
to state, having regard to the societal conditions as they prevailed in early 20th century, may not be a
rational criteria in the 21 st century. In the early 20th century, the hospitality sector was not open to
women in general. In the last 60 years, women in India have gained entry in all spheres of public life.
They have also been representing people at grass root democracy. They are now employed as drivers
of
heavy transport vehicles, conductors of service carriage, pilots et. al. Women can be seen to be
occupying Class IV posts to the post of a Chief Executive Officer of a Multinational Company.
They are
now widely accepted both in police as also army services.
Right to employment vis-a-viz Security: Competing Values
32. The instant matter involves a fundamental tension between right to employment and security.
33. The fundamental tension between autonomy and security is difficult to resolve. It is also a tricky
jurisprudential issue. Right to Self Determination is an important offshoot of Gender Justice
discourse.
At the same time, security and protection to carry out such choice or option specifically, and state of
violence-free being generally is another tenet of the same movement. In fact, the latter is apparently
a
more basic value in comparison to right to options in the feminist matrix.
34. Privacy rights prescribe autonomy to choose profession whereas security concerns texture
methodology of delivery of this assurance. But it is a reasonable proposition that that the measures
to
safeguard such a guarantee of autonomy should not be so strong that the essence of the guarantee is
lost. State protection must not translate into censorship.
35. At the same time we do not intend to further the rhetoric of empty rights. Women would be as
vulnerable without state protection as by the loss of freedom because of impugned Act. The present
law ends up victimizing its subject in the name of protection. In that regard the interference
prescribed by state for pursuing the ends of protection should be proportionate to the legitimate
aims. The standard for judging the proportionality should be a standard capable of being called
reasonable in a modern democratic society.
Stereotype Roles and Right to Options

39. Professor Williams in "The Equality Crisis: Some Reflections on Culture, Courts, and
Feminism"
published in 7 WOMEN'S RTS. L. REP. 175 (1982) notes issues arising where biological
distinction between sexes is assessed in the backdrop of cultural norms and stereotypes. She
characterizes them as "hard cases". In hard cases, the issue of biological difference
between sexes gathers an overtone of societal conditions so much so that the real differences are
pronounced by the oppressive cultural norms of the time. This combination of biological and
social determinants may find expression in popular legislative mandate. Such legislations
definitely deserve deeper judicial scrutiny. It is for the court to review that the majoritarian
impulses rooted in moralistic tradition do not impinge upon individual autonomy. This is the
backdrop of deeper judicial scrutiny of such legislations world over.
40. Therefore, one issue of immediate relevance in such cases is the effect of the traditional
cultural norms as also the state of general ambience in the society which women have to face
while opting for an employment which is otherwise completely innocuous for the male
counterpart. In such circumstances the question revolves around the approach of state.

36. Instead of putting curbs on women's freedom, empowerment would be a more tenable
and socially wise approach. This empowerment should reflect in the law enforcement strategies of
the state as well as law modeling done in this behalf.
Romantic paternalism and the use of strict scrutiny standard of review and the rejection of
administrative convenience Protective discrimination aims: Standard of strict scrutiny: legislations
must not be examined only on objectives but implications and effects, should be justified and
proportionate
Equality as acceptance
Sex classifications may be used to compensate women "for particular economic disabilities
[they have] suffered," to "promote equal employment opportunity," to advance
full development of the talent and capacities of our Nation's people. But such classifications
may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority
of women."

NAZ Foundation:
Dignity:
WHETHER SECTION 377 IPC VIOLATES CONSTITUTIONAL GUARANTEE OF
EQUALITY
UNDER ARTICLE 14 OF THE CONSTITUTION
88. The scope, content and meaning of Article 14 of the Constitution has been the subject matter of
intensive examination by the Supreme Court in a catena of decisions. The decisions lay down that
though Article 14 forbids class legislation, it does not forbid reasonable classification for the
purpose 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 those that are left
out of the [WP(C)7455/2001] Page 73 of 105 group; and (ii) that the differentia must have a rational
relation to the objective sought to be achieved by the statute in question. The classification may be
founded on differential basis according to objects sought to be achieved but what is implicit in it is
that there ought to be a nexus, i.e., causal connection between the basis of classification and object
of the statute under consideration. [Budhan Choudhry v. State of Bihar, AIR 1955 SC 191].
THE RIGHT TO EQUALITY
The right to equality is the right of all human beings to be equal in dignity, to be treated with respect
and consideration and to participate on an equal basis with others in any area of economic, social,
political, cultural or civil life.
Discrimination based on any other ground must be prohibited where such discrimination (i) causes
or perpetuates systemic disadvantage; (ii) undermines human dignity; or (iii) adversely affects the
equal enjoyment of a person's rights and freedoms in a serious manner that is comparable to
discrimination on the prohibited grounds stated above.
Targets homosexuals as a class
We hold that sexual orientation is a ground analogous to sex and that discrimination on the basis of
sexual orientation is not permitted by Article 15. Further, Article 15(2) incorporates the notion of
horizontal application of rights. In other words, it even prohibits discrimination of one citizen by
another in matters of access to public spaces. In our view, discrimination on the ground of sexual
orientation is impermissible even on the horizontal application of the right enshrined under Article
15.
If there is one constitutional tenet that can be said to be underlying theme of the Indian
Constitution, it is that of 'inclusiveness'. This Court believes that Indian Constitution
reflects this value deeply ingrained
in Indian society, nurtured over several generations. The inclusiveness that Indian society
traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for
everyone. Those perceived by the majority as "deviants' or 'different' are not
on that score excluded or ostracised.
131. Where society can display inclusiveness and understanding, such persons can be assured of a
life of dignity and non- discrimination. This was the 'spirit behind the Resolution' of
which Nehru spoke so passionately. In our view, Indian Constitutional law does not permit the
statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It
cannot be forgotten that discrimination is anti- thesis of equality and that it is the recognition of
equality which will foster the dignity of every individual.
Rajbala:
The petitioners challenge the IMPUGNED ACT principally on the ground that the enactment is
violative of Article 14 of the Constitution.
It is argued on behalf of the petitioners that (i) the impugned provisions are wholly unreasonable
and arbitrary and therefore violative of Article 14 of the Constitution. They create unreasonable
restrictions on the constitutional right of voters to contest elections under the ACT8; (ii) they create
an artificial classification among voters(by demanding the existence of certain criteria which have no
reasonable nexus to the object sought to be achieved by the ACT), an otherwise homogenous group
of people who are entitled to participate in the democratic process under the Constitution at the
grass-roots level; and
(iii) the classification sought to be made has no legitimate purpose which can be achieved".
HELD: it is clear that courts in this country do not undertake the task of declaring a piece of
legislation unconstitutional on the ground that the legislation is “arbitrary” since such an exercise
implies a value judgment and courts do not examine the wisdom of legislative choices unless the
legislation is otherwise violative of some specific provision of the Constitution
The classification in our view cannot be said either based on no intelligible differentia unreasonable
or without a reasonable nexus with the object sought to be achieved.
Suresh Kumar Koushal:
Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal
intercourse against the order of nature constitute different classes and the people falling in the later
category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational
classification
Notes on Maratha reservation-
This extract is taken from Jaishri Laxmanrao Patil v. State of Maharashtra,
(2021) 8 SCC 1 : 2021 SCC OnLine SC 362 at page 80
44. Overemphasis on merit therefore, ignores the burdens of the past, assumes that everything is
perfectly fair now and asks the question of how the candidate fares in examinations that test only a
narrow range of skills, mainly of linear-type thought. This decontextualised, neutrality-based
thinking glosses over historical and centuries old inequalities, the burdens of which continue to
plague those who labour under disadvantage, and through the so called “level playing field” of a
common exam, or evaluation, privileges those who had, and continue to have, access to wealth,
power, premium education and other privileges, thus consolidating these advantages. Merit is a
resource attractor. Those with it, accumulate more of it, more wealth and acquire more power. They
use that money and power to purchase more increments of merit for themselves and their children.
This extract is taken from Jaishri Laxmanrao Patil v. State of Maharashtra,
(2021) 8 SCC 1 : 2021 SCC OnLine SC 362 at page 88
67. There is empirical evidence, in India, in different sectors that access to productive
employment is confined to a few sections of the workforce, among the most backward of
classes, while the rest eke out a living in the informal economy. The faultlines of division
between those who are employed in good jobs and those who are “excluded” run deep, and
are based on caste, religion, region, and other sectarian divisions all of which overlap with
class and gender, such that even within the small section of the workforce which is
productively employed in decent jobs, some groups are better represented than others,
placed higher than others, while some castes and communities are practically absent in the
top echelons of the private corporate sector. While private employers firmly believe that
jobs should be allocated on the basis of individual merit, their views about how merit is
distributed overlaps strongly with existing stereotypes around caste, religion, gender and
regional differences.
This extract is taken from Jaishri Laxmanrao Patil v. State of Maharashtra,
(2021) 8 SCC 1 : 2021 SCC OnLine SC 362 at page 88
69. In addition to being sensitised to the problem of under representation at the time of
employment (by actively pursuing policies to promote and/or by equal opportunity
employment policies), private companies can also pay attention to supplier diversity in
matters of procurement. By encouraging supplies from firms owned by SCs, STs, or those
from backward class or deprived classes, the large organised private sector in India could
give a huge boost to the micro, medium and small enterprises owned by entrepreneurs
from such marginalised groups. Indeed, this is also one of the planks used in USA, for
instance, where minority-owned businesses are not only given active financial incentives by
the Government, but larger firms are expected to source a part of their supplies from
minority-owned businesses. Given that typically, SC, ST and backward class individuals
owned micro-enterprises are likely to employ greater proportion of persons from these
communities (as compared to enterprises owned by upper-caste groups), an active supplier
diversity programme would also boost employment.
This extract is taken from Jaishri Laxmanrao Patil v. State of Maharashtra,
(2021) 8 SCC 1 : 2021 SCC OnLine SC 362 at page 121
125. The interpretation of Articles 341 and 342 of the Constitution, read with Articles
366(24) and 366(25), have to, in our opinion, be the guiding factors in interpreting Article
366(26-C), which follows a similar pattern i.e. of defining, for the purpose of the entire
Constitution, with reference to the determination of those communities who are notified as
SEBCs, under Article 342-A (which again uses the expression “for the purpose of this
Constitution”).
This extract is taken from Jaishri Laxmanrao Patil v. State of Maharashtra,
(2021) 8 SCC 1 : 2021 SCC OnLine SC 362 at page 125
133. It is therefore, apparent that whenever the definition clause i.e. Article 366 has
arisen for interpretation, this Court has consistently given effect to the express terms, and in
the broadest manner. Whenever new definitions were introduced, full effect was given, to
the plain and grammatical terms, often, limiting existing legislative powers conferred upon
the States.
This extract is taken from Jaishri Laxmanrao Patil v. State of Maharashtra,
(2021) 8 SCC 1 : 2021 SCC OnLine SC 362 at page 139
156.2. The use of the term “means” which has been interpreted to imply an exhaustive
definitional expression, in several decisions of this Court [Punjab Land Development &
Reclamation Corpn. Ltd. v. Labour Court, (1990) 3 SCC 682 : 1991 SCC (L&S) 71 where a
Constitution Bench stated : (SCC p. 717, para 72)“72. The definition has used the word
“means”. When a statute says that a word or phrase shall “mean”— not merely that it shall
“include” — certain things or acts, ‘the definition is a hard-and-fast definition, and no other
meaning can be assigned to the expression than is put down in definition’
[per Gough v. Gough, (1891) 2 QB 665 (CA)]. A definition is an explicit statement of the full
connotation of a term.”Also P. Kasilingam v. P.S.G. College of Technology, 1995 Supp (2) SCC
348; Black Diamond Beverages v. CTO, (1998) 1 SCC 458 and Godrej & Boyce Mfg. Co.
Ltd. v. State of Maharashtra, (2014) 3 SCC 430.] , as a device to place the matter beyond the
pale of interpretation, to ensure that the only meaning attributable is the one directed by
the provision. Thus, SEBCs are, by reason of Article 366(26-C) only those deemed to be so
under Article 342-A.
This extract is taken from Jaishri Laxmanrao Patil v. State of Maharashtra,
(2021) 8 SCC 1 : 2021 SCC OnLine SC 362 at page 139
156.4. The logical corollary is that such inclusion is for the purposes of the Constitution,
to enable State and Central Government benefits i.e. welfare measures, special provisions
under Articles 15(4) and 15(5), as well as employment, under Article 16(4). The enactment of
this provision excludes all other methods of identification, by any other body—either the
State, or any State Commission or authority.
This extract is taken from Jaishri Laxmanrao Patil v. State of Maharashtra,
(2021) 8 SCC 1 : 2021 SCC OnLine SC 362 at page 139
156.5. The use of the expression for the purposes of this Constitution,—in Article 342-A(1),
also emphasises the idea that for all purposes i.e. under Articles 15(4), 15(5), and 16(4), only
the communities or classes deemed to be SEBCs under Article 342-A would be treated as
such, in relation to the State or Union Territory concerned.
This extract is taken from Jaishri Laxmanrao Patil v. State of Maharashtra,
(2021) 8 SCC 1 : 2021 SCC OnLine SC 362 at page 140
158. This sequitur is the only reason why change was envisioned in the first place by
Parliament, sitting in its constituent capacity, no less, which is to alter the entire regime by
ensuring that the final say in the matter of identification of SEBCs would follow the same
pattern as exists, in relation to the most backward classes among all citizens (i.e. the SCs
and STs, through Articles 338, 338-A, 341 and 342). Too much cannot be read into the use of

the expression the Central List for the simple reason that it is a list, prepared and published
by the President, on the aid and advice of the Union Council of Ministers. The term Central is
no doubt, unusual, but it occurs in the Constitution in several places. At the same time, the
Council of Ministers headed by the Prime Minister advises the President and provides
information relating to the administration of the affairs of the Union and proposals for
legislation (Article 78). Similarly, Article 77 uses the term “the Government of India”. Given that
these terms are used interchangeably, and mean the same, “the Central List” carries no other
signification than the list notified under Article 342-A(1), by the President at the behest of
the Central Government.

Ashok Bhushan
This extract is taken from Jaishri Laxmanrao Patil v. State of Maharashtra,
(2021) 8 SCC 1 : 2021 SCC OnLine SC 362 at page 224
407. We have no doubt that all Governments take measures to improve the welfare of
weaker sections of the society but looking to the increased requirement of providing
education including higher education to more and more sections of society other means
and measures have to be forged. In view of the privatisation and liberalisation of the
economy public employment is not sufficient to cater to the needs of all. More avenues for
providing opportunities to members of the weaker sections of the society and backward
class to develop skills for employment not necessarily the public service. The objectives
engrafted in our Constitution and ideals set by the Constitution for the society and the
Governments are still not achieved and have to be pursued. There can be no quarrel that
society changes, law changes, people change but that does not mean that something which
is good and proven to be beneficial in maintaining equality in the society should also be
changed in the name of change alone.
This extract is taken from Jaishri Laxmanrao Patil v. State of Maharashtra,
(2021) 8 SCC 1 : 2021 SCC OnLine SC 362 at page 249
480. From the above, it is clear that both the Commission and the High Court treated the
extraordinary situations with regard to exceeding 50% for granting separate reservation to
Marathas, the fact that population of backward class is 85% and reservation limit is only
50%. The above extraordinary circumstances as opined by the Commission and approved
by the High Court is not extraordinary situation as referred to in para 810 of Indra
Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1]
judgment. The Marathas are dominant forward class and are in the mainstream of national
life. The above situation is not an extraordinary situation contemplated by Indra
Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1]
judgment and both the Commission and the High Court fell in error in accepting the above
circumstances as extraordinary circumstance for exceeding the 50% limit. At this stage, we
may notice that what was said by Dr Ambedkar in the Constituent Assembly Debates dated 30-
11-1948 while debating draft Article 10(3) [Article 16(4) of the Constitution]. Dr Ambedkar by
giving an illustration said : (CAD Vol. VII)
“… Supposing, for instance, we were to concede in full the demand of those
communities who have not been so far employed in the public services to the fullest
extent, what would really happen is, we shall be completely destroying the first
proposition upon which we are all agreed, namely, that there shall be an equality of
opportunity. Let me give an illustration. Supposing, for instance, reservations were made
for a community or a collection of communities, the total of which came to something

like 70% of the total posts under the State and only 30% are retained as the unreserved.
Could anybody say that the reservation of 30% as open to general competition would be
satisfactory from the point of view of giving effect to the first principle, namely, that
there shall be equality of opportunity? It cannot be in my judgment. Therefore the seats
to be reserved, if the reservation is to be consistent with clause (1) of Article 10, must be
confined to a minority of seats. It is then only that the first principle could find its place
in the Constitution and effective in operation.”

Rajeev Dhavan again makes the argument that the reservations be subjected to strict scrutiny-the
court however says we will not doubt the manner and procedure of collecting data
This extract is taken from Jaishri Laxmanrao Patil v. State of Maharashtra,
(2021) 8 SCC 1 : 2021 SCC OnLine SC 362 at page 262
520. The word “adequate” is a relative term used in relation to representation of
different caste and communities in public employment. The objective of Article 16(4) is that
backward class should also be put in mainstream and they are to be enabled to share
power of the State by affirmative action. To be part of public service, as accepted by the
society of today, is to attain social status and play a role in governance. The governance of
the State is through service personnel who play a key role in implementing government
policies, its obligation and duties. The State for exercising its enabling power to grant
reservation under Article 16(4) has to identify inadequacy in representation of backward
class who is not adequately represented. For finding out adequate representation, the
representation of backward class has to be contrasted with representation of other classes
including forward classes. It is a relative term made in reference to representation of
backward class, other caste and communities in public services.
This extract is taken from Jaishri Laxmanrao Patil v. State of Maharashtra,
(2021) 8 SCC 1 : 2021 SCC OnLine SC 362 at page 266
533. The above representation of Marathas in public services in Grades A, B, C and D is
adequate and satisfactory. One community bagging such number of posts in public services
is a matter of pride for the community and its representation in no manner can be said to
be not adequate in public services. the Constitutional precondition that backward class is
not adequately represented is not fulfilled. The State Government has formed opinion on
the basis of the above figures submitted by the Gaikwad Commission. The opinion of the
State Government being based on the report, not fulfilling the Constitutional requirement
for granting reservation to Maratha community becomes unsustainable.
This extract is taken from Jaishri Laxmanrao Patil v. State of Maharashtra,
(2021) 8 SCC 1 : 2021 SCC OnLine SC 362 at page 269
541. There is one more fundamental error which has been committed by the
Commission. the Constitutional precondition for providing reservation as mandated by
Article 16(4) is that the backward class is not adequately represented in the public services.
The Commission laboured under misconception that unless Maratha community is not
represented equivalent to its proportion, it is not adequately represented. We may notice
what has been said by the Commission in Para 219 while recording its conclusion emerging
from the analysis of information contained in Tables A, B, C and D. In Para 219(C), the
Commission states:
“219(C). … The obvious conclusion that emerges from the above information is that
in none of the four grades the strength of Maratha class employees is touching the
proportion to their population in the State which is based on various sources is
estimated at an average 30%. So also, their presence in administration is more at the
lower grades of “C” and “D” and have a comparatively lesser existence and role in
decision-making levels of State administration in “A” and “B” grades.…”
This extract is taken from Jaishri Laxmanrao Patil v. State of Maharashtra,
(2021) 8 SCC 1 : 2021 SCC OnLine SC 362 at page 273
551. When in earlier period of about 60 years, right from 1955 to 2008, repeatedly it was
held that Maratha community is not backward class, the Gaikwad Commission ought to
have applied the test that “what happened thereafter that now the Maratha community is to be
included in OBC”. The Commission has not adverted to this aspect of the matter. The
Commission ought to have also focused on comparative analysis as to what happened in
the recent years that Marathas have become backward from forward class. In this context,
we may also refer to the judgment of this Court in Ram Singh [Ram Singh v. Union of India,
(2015) 4 SCC 697] where National Backward Classes Commission has rejected the claim of
Jat to be included in Other Backward Communities with regard to several States. The
National Commission recommended that Jat is politically dominant class and need not to be
included in OBC. The Union disregarding the said report had issued a notification including
Jat as OBC in the different States in the Central List. It was challenged in this Court by way of
writ petition. This Court held that the report of National Backward Classes Commission
could not have been disregarded and ought to have been given due weight. This Court held
that Jat community is politically organised class which was rightly not included in the
category of Other Backward Classes. In para 55 the following was laid down : (Ram Singh
case [Ram Singh v. Union of India, (2015) 4 SCC 697] , SCC p. 730)
“55. The perception of a self-proclaimed socially backward class of citizens or even
the perception of the “advanced classes” as to the social status of the “less fortunates”
cannot continue to be a constitutionally permissible yardstick for determination of
backwardness, both in the context of Articles 15(4) and 16(4) of the Constitution. Neither
can backwardness any longer be a matter of determination on the basis of
mathematical formulae evolved by taking into account social, economic and educational
indicators. Determination of backwardness must also cease to be relative : possible
wrong inclusions cannot be the basis for further inclusions but the gates would be
opened only to permit entry of the most distressed. Any other inclusion would be a
serious abdication of the Constitutional duty of the State. Judged by the aforesaid
standards we must hold that inclusion of the politically organised classes (such as Jats) in
the List of Backward Classes mainly, if not solely, on the basis that on same parameters
other groups who have fared better have been so included cannot be affirmed.”
This extract is taken from Jaishri Laxmanrao Patil v. State of Maharashtra,
(2021) 8 SCC 1 : 2021 SCC OnLine SC 362 at page 275
555. We have already found that Maratha community has adequate and sufficient
representation in the public services. We have also noted that representation of Marathas in
public services is present in all categories i.e. Group A, Group B, Group C and Group D posts,
and the Marathas have occupied the posts by competing with open categories. The
representation of Marathas as noticed above has in many grades about 30% against all filled
posts of open category. When a community is able to compete with open category
candidates and obtain substantial number of seats (about 30%), this was relevant fact to be
noticed while considering the social and educational backwardness of the community. Even
if grant and non-grant of reservation to backward under Article 16(4) may not be considered
as decisive for socially and educationally backward class for grant under Article 15(4) but
grant or non-grant under Article 16(4) certainly is relevant for consideration which reflects

on backward class or classes both in favour and against such backward class. We have
noticed that the Commission has taken erroneous view that the representation of Maratha
community in public services is not proportionate to their population and has
recommended for grant of reservation under Article 16(4). We having disapproved the grant
of reservation under Article 16(4) to Maratha community, the said decision becomes
relevant and shall have certainly effect on the decision of the Commission holding Marathas
to be socially and educationally backward. Sufficient and adequate representation of
Maratha community in public services is indicator that they are not socially and
educationally backward.

MODULE 5
Article 19 is one of the most contested provisions of the Constitution, when it comes to hate
speech, press, freedom of expression etc.

Can we look at the FRs in a distinct manner? The Constitution should be read as a holistic
document, and it should not be read in any manner that any single provision is irrelevant. Inevitably,
in the context of art. 19, we find that provisions do conflict with one another. Then the question
that arises is what ideas are more important than the other? Freedom of speech over national
security or vice versa? In the context of art. 19- the cases look at both, the content of the rights- the
doctrine that is relevant for interpretation, Art 14 (reasonableness standard) casting a shadow on
Art. 19, or whether Art. 19 has to be read with Art. 21 and art. 22. One idea that we must engage
with is what is the content of Art. 19.
One can argue that post the Puttaswamy privacy decision, the idea of reading rights together has
been so common, why dont we simply say FRs instead of isolating it to art. 19, or 21. However, this
comes with its own set of problems in the context of standard of reviews that are to be used. In the
process of adjudication, how does one determine the scope and extent of the rights, and the
restrictions that can be imposed on it? The scope must be looked at independently of the restrictions
that are to be imposed on it. Art. 19 contains both the content of the right and the grounds on
which it may be restricted.
Why are the grounds for restrictions of art. 19 explicitly mentioned, instead of simply laying out the
content of the right like other provisions? Why do we delineate art. 19 and art. 21? In the same way,
we are talking about specific rights in the anticipation that it would be easier to entrench particular
rights and restrictions are laid down to make it certain that only these restrictions are contemplated,
and the citizens are aware of the same. Through the restrictions, the state may be legitimately
affected to use its powers therein. Art. 19 represents 1) a particular delineation of fundamental
rights, 2) the state is allowing itself the freedom to make laws only on these grounds and not on any
other.
Module 5
Scheme of the module
Social and Historical context of the drafting of the provisions and their amendment- the concerns of
conflicting art. 19 and preventive detection is not new with UAPA, but is age old with the right in
itself. The social history gives out the complexities of drafting and the dilemmas of the framers of
the constitution.
Evolution of doctrine: The significance of the tests of proportionality etc, that is focussed on
currently.
Determination of the scope of the right and its realization- The question of the standard to be used,
how one determines if a right has in fact been infringed, which rights are fundamental. The right
must be laid out in its fullest magnitude before we look at restrictions (Barak). Several cases could
only be answered by looking at the scope of the right, before looking at restrictions.
In the Bennett Coleman decision- there was a govt order regulating news print- one approach is the
doctrine of pith and substance which looks at its primary intention, how it intends to carry out the
intention and the competency behind it- a government order controlling news print is to ensure
news print is effectively distributed- however, if circulation of certain newspapers get effected-
should it be seen only as an incidental impact of a legislation meant for a very different primary
purpose- it can be argued in this manner using doctrine of pith and substance. In this case, one
could argue whether the right to free speech and expression extends to any regulation over news
print- this could be answered by only looking at the scope of the right of art. 19- the possible
grounds of restriction need not be looked. However, the court jumped into the restrictions as to
whether it is allowed by the constitution or not (typological approach).
When both the right and the restrictions are a part of the same article, are they supposed to be read
separately? The balancing test is crucial to art. 19 as it talks about the rights of an individual as well
as the rights of a group- right of an individual should not be exercised to the extent that it affects the
rights of a group- idea of hate speech- right should not be exercised to put the group in a vulnerable
position. However, the individual or group right must not be placed antagonistically to each other,
and the rights and restrictions are facets to each other- not antagonistic. It helps determine the
boundaries of the extent of the realization of the right, by examining the contours of the claim.
Therefore, the scope of rights is saying that instead of presenting the right and realization as
antagonistic to each other, they must be presented as facets that must be read harmoniously with
each other.
The interrelationship between Art. 19 and 21- privacy and its contours
The interrelationship between Art. 14 and 19 (Maneka Gandhi)- reasonableness of the restriction
(the context of RC Cooper must also be considered where art. 19 was interacting with art. 31, right
to property)
The interrelationship between Art. 19 and 22- how framers of a democratic constitution
contemplate a right against preventive detention, and how are PDs read with FRs holistically.

Austin Reading
Social and Historical context of art. 19
Clauses a, b and c adapted from the Irish Constitution Section 40(6) i, and iii
Irish Constitution: Education of public opinion by radio, press, cinema shall not be used to
undermine public order or morality or authority of the state, nor protect publication or utterance of
blasphemy, sedition or indecent matter. (Public order was not borrowed in the original text of the
Constitution- only libel, slander, defamation- civil remedies)
• Originally the restrictions were not contemplated-
Is a provision a FR largely because one cannot be restrained from exercising the right or being
protected from any consequences of the exercise of the right- this question becomes important in
the context of censorship. The only way the restrictions can operate is post-facto not before the
right is conferred in itself. One of the fundamental ideas of free speech is that there should not be
any prior restraint- the idea of an internet shutdowns violates one of the core ideas of free speech
that there cannot be prior restraint.
• Originally, the Constitution only included-
- Libel, slander, defamation
- Contempt of court
- Decency and morality
- Undermines security of or overthrow the state
The choice of opting only some of the provisions reflect a choice of the drafters of the Constitution,
but certain elements such as ‘public order’ creeped in.
• Annexure to the Draft Report of the Sub Committee on FR's

Seamless Web
• National integrity, social revolution, democratic rights of freedom of expression and personal
liberty
• Several provisions of the rights contradicted themselves
• Romesh Thapar-undermining the security of the state or its overthrow- targeted communists
• In re Bharati Press (51) Patna HC-inciting murder was part of free speech- Shaila Bala Devi ( 52)
SC CB
• Brij Bhushan and Romesh Thapar- Led to the first amendment introducing public order,
incitement of an offense and defamation
• 16th amendment introducing sovereignty and integrity of India- DMK and Sikh- State link to
UAPA which makes punishable words which intend or support secession ( was the problem over
centralisation, unfair(uneven?) distribution of resources and govt policy breeding regionalism. The
context was separatist movements in Punjab, South etc., which threatened the sovereignty of India.
By controlling elements which are anti-national. You must also realize that it was at a time when
there was a need for it, there was a need for police power. What is the stated objective and what was
its actual purpose. The intention should determine the validity of the law or the way in which the
law has been used, should determine the validity of the law. UAPA and its various avatars.
Evolution of Doctrine from ‘a typology’ to proportionality
There is a great deal of unpredictability with regards to the standards used under Art. 19. The
questions under art. 19 are very diverse so it is difficult to find a single, coherent stream to
understand art. 19. The ‘seamless web’ as discussed show what the right has to do with property
rights, what free media means to the institution of democracy, what freedom of speech mean to
collective group rights.
Rajeev Dhawan talks about the freedom of press, and engages with the decision of the SC in these
cases.
• Rajeev Dhavan characterises the decision of the SC in Thapar as a ‘typological approach’ (JILI
1986)- With the freedom of press, Rajeev Dhawan makes very important connections of art. 19 with
other rights. Romesh Thapar gives us an interpretation where we haven't set out the scope of the
right and instead looked at the restriction- assuming the right is boundless and subject to
restrictions.
Rajeev Dhawan starts off with what he calls the ‘typological’ approach, and what he considers the
reasonable approach, and the idea of the moral desert. Typology approach- whether the restriction
imposed by the state falls within the ‘reasonable’ restrictions under art. 19. The court sometimes
understands the scope of the right before looking at its validity. However, there is a flip side to this
as seen in cases involving censorship, obscenity etc- is the court getting into this question of what is
deserving of protection, as was seen in Ranjit M Udeshi case (obscenity). We also see specifically in
the context of parliamentary privileges, all parliamentarians are free from the consequences-
therefore, there are qualifications in the type of speech, where we allow for dissent from the
dominant narrative.
- The typological approach is also seen in cases of contempt of court
- Defamation
- Sovereignty and integrity of India and friendly relations
- The exception is public order and security of state where the court has examined nexus
• Social and ideological terrain in which the rights are set hardly figures in this
• Moral Desert-whether the rights deserve protection (Ranjit Udeshi) and extended to Gambling,
Liquor selling, trading in rural debts and commercial speech
Through the term, ‘moral desert’- he argues that the minute we say there are rights that deserve
protection, he asks how we come to that conclusion. Is sex work, work deserving of protection? If
we say, for political dissent- there is a caveat since it is of a ‘quality’ with regards to the speech being
made that warrants protection, then what about the fact that selling of liquor, gambling, etc- not
deserving of protection since they do not have the same instrumental values. When we say there are
some speech that deserve protection, we imply that there are other speech that does not. For
obscenity- only artistic content, informational content are allowed and protected. This is much
more than mere ‘typology’ as it enters the question of what is socially relevant speech, and only if it
is socially and morally relevant it gets protected under art. 19 (1)(a).

AK Gopalan- direct effect test (unless it directly affect the right, the right would not be
invoked)
When we are doing Gopalan, one of the ways in which the court decides the case is that a legislation
on preventive detention-that a case that was invoked under 19 gets shifted to 21- if a person is
preventively detained, is only his freedom of speech impacted, or does it extend to his right to life.
They made a claim under art. 19 (1) (a)_ that they were detained without being informed of the
grounds, no opportunity to challenge the grounds etc. The court held that unless the legislation is
directly affecting the right affected- the court would only invoke art. 19- the present legislation,
PD Act does not deal with freedom of speech, and instead, art. 21 should be invoked. While
Gopalan is supposedly overruled, in Anuradha Bhasin, the court used the same rationale. This
approach is the ‘direct effect’ test- unless it directly affects the right, the legislation would not
concern the right (Vasanthi disses on this test).
• Reasonableness (VG Row) procedural due process, arbitrariness and involving a.14
RC Cooper- Reading rights together- Art. 19 and 31
RC Cooper- bank nationalization case, which talks about the state taking over private property. The
‘due process’ clause in art. 21, has in the sense, a mirror in art. 31- where both clauses stemmed from
the American Constitution- where right to life and property cannot be taken away except for due
process of law. For India to meet its social revolution goals, the drafters considered the need to have
a much more controlled right to property- protecting the right to property of large groups under art.
31- a property cannot be taken away except for law made by legislature. Therefore, there is a
restricted right to property and the right to life. So should we apply the same standard for both? The
SC brought the doctrine of eminent domain to art. 31- in RC Cooper the question was can we take
away property without providing compensation that is equivalent to market value. The court held
that the law that provided for nationalization did not take into account any such compensation. The
court however, equated the corporation with the citizen- by equating the rights of shareholders with
the right of the corporation (even though, it is against the basics of corporate law). In essence, RC
Cooper establishes the relationship between art. 19 and 21, by equating the same rights of the
individual shareholder, it moves away from other cases, which involved the press, where the court
was required to do so. The press is meant to be a watchdog on state power- where it has a
very important role in the democracy, and it should enjoy rights separate from the
individuals behind it. However, the court refused to treat it separately.
The other context in which the court refused to separate the right is trade unions- when we apply
the same logic, and say the trade union does not have any right which is greater or more important
than the individual. The collective is the trade union which has the power to negotiate with the
employer- and when collective bargaining is a core value for labour- we should say the trade union
just like corporations must have the same case.
In the National Industrial Tribunals case (peripheral or concomitant rights are not a part of the
right), the court said that unions do not have any rights that the individual worker does not have-
the peripheral rights are not intended to fulfil the exercise of the rights- right to collective bargaining
cannot be held to a part of right to form the union (concomitant or peripheral rights). This is
because the corporate does not enjoy a right that is distinct from its members as held in RC Cooper.
This theory of concomitant rights was criticized in Maneka as well.
Under due process, under art. 31-the right is protected by the right of the state to take away
property. The court invokes the doctrine of eminent domain- where such a power can be exercised
only for a public purpose. The minute we test it on demonstrating public purpose, the interpretation
of art. 31 by using the scope of the right under art. 19 (subject to reasonable restrictions)- by
invoking the doctrine of eminent domain reads the rights under art. 31 and 19 together. While we
have AK Gopalan, where a person’s freedom of expression is being curtailed through PD, the court
refuses to read 19 with 21. RC Cooper, on the other hand, opens up the reading of rights together
with art. 19 and art. 31- The right to property is subject to a public purpose that is demonstrated,
and the compensation must be adequate. In Art. 19 and art. 31, should we invoke the broad
restrictions or the narrowly tailored restrictions under art. 19.
Romesh Thapar- Typological approach- ‘public order’ not a part of security of state
Romesh Thapar continues to be a case that is relied upon multiple times, but it is based on a very
narrow interpretation of whether public order is a part of the original art. 19. The First Amendment
subsequently brings in public order as a restriction. Thapar is widely referred to since it looks at the
scope of the restrictions, instead of setting out the rights to be protected under art. 19 (typological
approach). Through the typological approach, the attention is shifted to the law that is being
challenged but not the right in question. As an approach, this has a great utility, and ‘reasonable
restrictions’ were introduced in art. 19 (2) after the Thapar decision- therefore, it does not refer to
reasonableness as a test, which was introduced after the decision.
Brij Bhushan- Prior Restraint- Examines prior restraint in the context of the content of the
freedom of press
In Brij Bhushan, dealing with prior restraint, the court looks at the content of the right, and takes a
different approach. Here, the court uses Blackstone to say the liberty of the press consists in laying
no previous restraint upon publications, and not in freedom from censure for criminal matters when
published.” There can be little doubt that the imposition of pre-censorship on a journal is a
restriction on the liberty of the press which is an essential part of the right to freedom of speech and
expression declared by art. 19(1)(a).
Side Note- In the Shreya Singhal case, the court uses both methods- setting out the contents of
free speech and delves into the role of free speech in the market place of ideas etc., and also quotes
Romesh Thapar looks at restrictions and whether the law challenged falls within the restrictions.
The third case is Shailabala Devi- looked at what constitutes seditious speech and the extent
of art. 19
• compelled to observe that from the above discussions of the Supreme Court judgments, (Thapar
and Brij Bhushan) it follows logically that if a person were to go on inciting murder or other
cognisable offences either through the press or by word of mouth, he would be free to do so with
impunity inasmuch as he would claim the privilege of exercising his fundamental right of freedom of
speech and expression. Any legislation which seeks or would seek to curb this right of the person
concerned would not be saved under article 19 (2) of the Constitution and would have to be
declared void.
• SC held that These observations--I speak with great respect-disclose a complete lack of
understanding of the precise scope of the two decisions of this Court referred to above. The
Shailabala Devi is used to understand the scope of material that is considered seditious. The
reasoning as to why the court finds the poem in question- unproblematic is: In order to determine
whether a particular document falls within the ambit section 4(1), the writing has to be considered as
a whole and in a fair and free and liberal spirit, not dwelling too much upon isolated passages or
upon a strong word here and there, and an endeavor should be made to gather the general
effect which the whole composition would have on the mind of the public. Expressions which
are the stock-in-trade of political demagogues and have no tendency to excite anybody, and
exaggerations in language cannot lead to that result. A general culture of dissent and disagreement
should not be criminalized.
In spite of Shailabala Devi, the court continues to follow the Romesh Thapar approach of looking at
the restrictions, instead of the extent of the right. The court says that this line of interpretation is
wrong as there is no need for the modified text, and the minute we talk about integrity, sovereignty
of the country- all speech gets prohibited without looking at the impact of the speech on the
integrity and sovereignty of the country. This is known as the ‘proximity’ test- the possibility of the
speech having the impact on the restriction. If we do not look at the proximity test, we need
something more- this is where the reasonableness test attempts to establish a nexus between the
intended objective of the legislation and the action being subject to scrutiny. In ‘proportionality’
test, we would look at the right being engaged and the restriction imposed, and raise questions as to
the least alternative/best possible way to achieve the objective. This shows the evolution of the
doctrine from typology to proportionality. Proportionality is the preferred doctrine in the context of
art. 19- as it is able to bring together these aspects.
Ramji Lal Modi v. UP (1957)
Validity of section 153A and 295A IPC challenged.
• The petitioner is the editor, printer and publisher of a monthly magazine called Gaurakshak. The
magazine is devoted to cow protection. In July or August, 1954, a Hindi Daily newspaper named
'Amrit Patrika* of Allahabad printed and published an article or a cartoon about a donkey on which
an agitation was started by the muslims of Uttar Pradesh. The editor and printer and publisher of
"Amrit Patrika' were prosecuted by the State, but they were eventually acquitted by the High Court
of Allahabad. In the meantime, in its issue for the month of Kartik Samvat 2009, corresponding to
November, 1952, an article was published in the petitioner's magazine 'Gaurakshak.' On December
12, 1952, the State Government ordered the prosecution of the petitioner on the basis of the said
article. The provisions in IPC that allow the criminalisation of speech should be declared
unconstitutional were pleaded, but the court held it to be valid. the court validated a section of the
Indian Penal Code which forbade insults to the religions or religious beliefs of a class of citizens,
even where this may not have led to a disturbance of public order. Taking a wide view of the
government’s brief to maintain public order at the expense of the rights of the press, the court took
refuge on the fact that:

reasonable restrictions on the exercise of the right to freedom of speech and expression “in the
interests of public order” ... is much wider than “for the maintenance of” public order. If, therefore,
certain activities have a tendency to cause public disorder, a law penalising such activities as an
offence cannot but be held to be a law imposing reasonable restrictions “ in the interests of public
order" although in some cases those activities may not actually lead to a breach of public order.

19(2) protects a law imposing reasonable restriction on the exercise of the right to freedom of
speech and expression in the interests of public order, which is much wider than the maintenance of
public order. If, therefore, certain activities have a tendency to cause public disorder, a law
penalizing such activities as an offense cannot be held to be a law imposing reasonable
restriction “in the interests of public order” although in some cases those activities may not
actually lead to a breach of public order.
By not holding these powers as unconstitutional, it results in a vast reservoir of preventive, punitive
and other powers.
Kedarnath v. Bihar (1962)
S. 124A and 505 IPC was challenged.
Facts: The Constitutionality of Section 124A and 505 of the IPC were questioned. The offence
covered by Section 124A was claimed to be delinked to the idea of public order. Overbroad laws
could be used to target critics and thereby subject to misuse.

Four different matters were clubbed: First involved Kedar Nath and he belonged to the Forward
Communist Party. Statements such as “Dogs of CID are loitering around Barauni”, “Congress
Gundas” were made. He faced a sedition case in 1953 and was subsequently convicted and jailed.

It is the offence of sedition that is being questioned and not the correctness of the decision in the
HC.
Second involved a leader called Ram Anand who talked about the Bolshevik party. Third involved a
speech at Aligarh (All India Muslim Convention). Fourth involved a speech that criticised Vinobha
Bhave. None of the speeches even lead to any violence.

Court upheld the constitutionality and held that the offence at present was not to protect public
order but rather under incitement to offences under Article 19(2). But we see that this precedent is
not paid heed to since even paintings are subject to sedition proceedings, etc. The court justified its
decision by arguing that the law of 'sedition.’ had been validated only if it were interpreted on the
basis of an earlier decision that the act complained of “must either incite to disorder or must be
such as to satisfy reasonable men that that is their intention or tendency”.

Superintendent v. Ram Manohar Lohia (1960)- Remoteness test (positive move)

RM Lohia, a socialist criticised the the dominant ideology, and was imprisoned several times for it.
Through such criticisms, was the govt punishing people such as Lohia for their views or for a threat
to public order. SC: It is well settled by decision of the SC that in a restriction in order to be
reasonable must have a reasonable relation to the object the legislation has in view and must not go
beyond it. Restrictions, therefore, meant to be in the interest of public order which have no
proximate relationship or nexus with it but can be only remotely or hypothetically connected with it,
cannot be reasonable within the meaning of art. 19(2). Reasonableness as well as proximity was
looked at in this case.

The court tried to tackle this question by narrowing the sweep of the “public order” restrictions so
as to exclude normal “law and order” and ‘‘security of state” situations and include only such
situations where there were threats to “public peace, safety and tranquility”. A new “remoteness”
test was introduced.

Remoteness test- The limitations introduced in the interests of public order to be a reasonable
restriction, should be one which has a proximate connection or nexus with public order, but not one
far fetched, hypothetical or problematical or remote in the chain of its relation with public order.

RM Lohia case II (1968)

Whether DIA Rules related to Preventive detention can be examined under 19, during an
Emergency? When the rights are suspended, how can we still make a claim wrt particular orders of
the state as violative of a right? The court held that even if we are invoking the DIA Rules, and is the
detention in accordance with the DIA, if not, it is invalid. The detention order stated that the DM
was satisfied, that with a view to prevent the petitioner from acting in any manner prejudicial to
public safety and maintenance of law and order”, while Rule 30 (1)(b) mentioned public order and
not law and order. To understand whether hte power has been exercised properly or not, does not
involve the right in question- it only involves the Rule of Law (British concept). In this case, a
political leader was preemptively barred from making speeches likely to undermine the public order.
The court talks about the distinction between law and order and public order’- “One has to
imagine three concentric circles. Law and order represents the largest circle within which is the next
circle representing public order and the smallest circle represents security of State. It is then easy to
see that an act may affect law and order but not public order just as an act may affect public order
but not security of the State by using the expression 'maintenance of law and order' the District
Magistrate was widening his own field of action and was adding a clause to the Defence of India
Rules."
Indian courts have tried to reconcile PDs with FRs through a very balanced position- by examining
the exercise of PD, and through this, it takes a calibrated position and does not hold art. 22 per se,
unconstitutional.
Enumerated Freedoms
Evolution of doctrine
Whether there was the Hindu Mahasabha or the CPI- both were disputed about what constituted
‘public order’. It was uncertain whether there was an intention to allow free speech, and whether the
restrictions were meant to disallow certain speeches made by certain people or for everyone. These
provisions have a very checkered past- and by looking at the evolution of the doctrine, it is one way
to come to grips with what we are trying to protect by looking at freedom of speech and expression.
Right to form associations- as we talk about the freedom of speech and expression of an individual,
what is its impact on the right to form association- when we talk about this being a citizen’s right
and then talk about right to form associations, how does art. 19 impact the same. The test of
reasonableness has been used to understand the scope of the freedom, and while it seems to
be the most obvious one, along with it we use the other tests. Revisiting Maneka in the context of
art. 19 is also important. Right to equality (reasonableness standard) read with art. 19. What has
Maneka done wrt Art. 19- the test used is the VG Row test (art 19 (1) (c) test)- Maneka was similar
to the AK Gopalan case, so we should use the AK Gopalan logic of only applying art. 22 and not
art. 19.
(V IMP) VG Row is important in trying to establish the scope of art. 19, and distinguishes Gopalan
by saying that while the action might be similar in threatening public order, there is a difference
between individuals being preventively detained under art. 22, and saying that the entire organization
is an unlawful organization- how do we distinguish between the association and individual rights. In
this context, the court in Maneka comes out with the reasonableness test. Proportionality is an
evolution from reasonableness. When we impose ‘reasonable’ restrictions into art. 19- and the
meaning of reasonableness under Art. 19 is not the same as art. 14 (it is very different). The test of
reasonableness under VG Row talks about 5 distinct stages-
1) The nature of the right
2) Purpose (Underlying purpose)
3) Extent and urgency of evil
4) Is that response disproportionate- Proportionality creeping in- VG Row was way ahead of
its time.
5) What are the prevailing conditions? Not law for future, but what is the prevailing reality that
needs that law. Eg. Internet shut down- we understand the volatility of the situation but an
indefinite ban where you wont even make the text of the order public, how can that be
comprehended?
First, examine the nature of the right- the right needs to be interpreted before the restrictions or the
intention of the law etc., unlike several cases such as the Shailabala case where the court directly
moved to the restrictions. To understand the scope of the right, it is useful to look at what the right
is actually trying to provide for.
Second, the underlying purpose.
Third, the extent and urgency of the evil that is sought to be remedied- the problem the state sees-
the implicit power of the state is recognised which need not be explicitly stated.
Fourth, the disproportionality of the imposition- is the response of the state more than what was
needed- proportionality in terms of calibrating the measures in terms of the right.
Fifth, the prevailing conditions at the time should enter into the judicial verdict.
When we look at the internet shutdown in Anuradha Bhasin- while there was an uncertain situation,
a blanket shutdown without an end in sight- if we apply the VG Row standard- the nature of the
right in question is the petitioner trying to run a newspaper in a state that is volatile, is the person
supposed to be treated differently than the ordinary citizen, is there a time frame within which all of
it is to operate? Does the controversy even raise an art. 19 situations since the statute does not
directly impact art. 19, and could the question simply be answered by ‘Rule of Law’ or ‘Due
Process’? To understand the scope of the right, it is useful to look at what the right is actually trying
to provide for.
The test of reasonableness was implicit in these standards. This was contrary to several cases, where
the court looked at only one of the three stages. This includes the nexus- demonstrating a nexus
between what is stated and the means sought to be used, and balancing.
Express Newspapers (1958)- ‘direct and inevitable consequences’ test
When we are talking about the freedom of press, are they not subjected to any restrictions
whatsoever? The Working journalists (conditions of service) Act allowed the press to organize its
business in any manner it chooses- if the press is not allowed to run the newspaper in any manner it
wants, it would be a direct infringement of their free speech. There is no relation of labour law to
art. 19. If we use the typology approach, the state cannot make any restriction that is infringing upon
press freedom- and imposing a burden on the press to work properly would be disallowed. With
reference to the other tests- if we apply VG Row- the nature of the right must be examined first- by
asking how a legislation to look after the employees infringe upon the free speech of the press. If we
use the AK Gopalan case, Art. 19 would not be invoked at all since it would not be directly
impacted.
In Express Newspapers, finally the court held that the Act was valid as the direct and inevitable
consequences of the measures did not impact freedom of speech. The ‘directness’ test was already
laid down in AK Gopalan, where art. 19 has to be impacted directly. The court added ‘inevitable
consequences’ drawing from the doctrine of pith and substance- minority opinion in Bennett
Coleman. In a way, Express Newspapers is moving in the AK Gopalan way by using the ‘directness’
test by demonstrating how free speech is not even engaged here, there may be an incidental effect
but it is not directly affected
This test is moving away from the decision in Sakal Newspapers, where the court followed the RC
Cooper decision (to separate out the directness from the inevitable where in RC Cooper there was a
direct effect on right to property), and the court focussed on the directness of the action rather than
the inevitable nature (was the engagement of right to property the only goal of the bank
nationalization project- evidently not).
Sakal Newspapers (1961)- essential part of the direct effect
In Sakal Newspapers, the court borrowed the test on the right of property to free speech. Through
this, it also moved away from the object/form of the legislature (doctrine of pith and substance).
The court took a broader view of the directness test. The Supreme Court held that the Act
regulating size and area of advertisement etc., directly interfered with freedom of the press as it
affected not only the right of a citizen to circulate news and views but also its volume of circulation.
The court took the view that there was a link between price, size, advertisements, prices and
circulation. According to the court, the upshot of all the restrictions in the order would affect the
circulation of newspapers and violate the constitutional guarantee of free speech. In order to
determine which freedoms of the press were constitutionally protected, the court talked of
the ‘‘essential part” of the freedom of speech and expression (and presumably the press ).
But how this "essential part” was determined was not disclosed. It was assumed that the circulation
of newspapers was an "essential part”. But, so many things affect the circulation of newspapers.
Although the court remained trapped in the language of “direct and inevitable effects” , it seemed to
want to prevent “excessive and prohibitive” burdens on the press. According to it:

The correct approach in such cases should be to enquire as to what in substance is the loss or injury
caused to the citizen and not merely what manner or method has been adopted by the State in
placing the restriction."’

This takes a broader approach of the variety; What will the effect of these burdens be on an
“essential part” of this freedom? And if it does have such an effect, is the restraint imposed
reasonable?

Bennett Coleman (1973)- broad effect theory- enquiring into the substance of the loss or
injury caused to the citizen and not merely the manner and method adopted by the State
This case was about newsprint policy. The minority opinion is useful since it is looking at the police
power emanating from the US Constitution- no prior restraint. The doctrine of ‘power of the state
to regulate’ was argued in Bennett Coleman, where we cannot claim FRs as the objective of the state
is to regulate not just free speech but other regulatory concerns and in the context of the US, the
right itself is not articulated and the regulation per se cannot be challenged. Only the extent to which
restriction comes in conflict with FR can be challenged, and here we examine the objective of the
legislation. In this case, the objective of the legislation was to check monopolistic tendencies and
unfair competition. The Supreme Court (by a majority of four to one) declared the impugned
measures as violative of the Constitution. Ray J., (as he then was) for the majority relied on the Sakai
Paper case to reiterate that the Constitution in protecting freedom of the press entitled a citizen to
propagate and publish his ideas, disseminate and circulate them. He stressed that any restraints on
the number of pages, circulation or advertisements which would detri mentally affect the freedom of
the press to control the circulation and content of newspapers was not constitutional. Following a
broad ‘effect’ theory, Ray J. observed :

The correct approach should be to inquire what in substance is the loss or injury caused to the
citizen and not merely what manner and method has been adopted by the State in placing
the restrictions.

What in substance is the loss or injury caused was asked and not what manner or method, the state
has used? The "Effects" test to the extent that there were essential parts which were not subject to
any restriction.
The Dissent relied on reasonableness of the restriction showing the purpose of the restriction to be
checking monopolistic tendencies and unfair competition. The minority opinion held that there may
be abridgment of speech but not the freedom of speech- this distinction is very useful as every
restriction or regulation cannot be claimed as part of free speech and this is where the Bennett
Coleman decision changes the test. It is not the guardian of unlimited talkativeness. Only an indirect
effect-valid classification.
Direct and inevitable-Direct and remoteness and back to direct and inevitable
• Express newspapers (58)-direct and inevitable effect-working journalists conditions of work act
• Remoteness test-Lohia
• Menaka-theory of concomitant rights or peripheral rights which facilitate the exercise of a
named right or give it meaning and substance and make the right effective was not accepted. The
direct and inevitable effect was not on speech but on right to travel abroad

Maneka Gandhi- Non-acceptance of the theory of concomitant rights drawing from direct
and inevitable test
When we come to Maneka, we again come back to the direct and inevitable test. The doctrine
changes as it moves between cases. While VG Rao establishes reasonableness, it is not applied in the
same way in Maneka. Through the arbitrariness test, there is a nuanced understanding of
reasonableness. Instead of looking at nature and purpose etc., arbitrariness reduces the standard to
the basics. Why was Maneka not answered on the basis of art. 19, and instead, it was pushed to art.
21? This was because the direct effect was not on speech, but it was the right to travel abroad and
the problematic interpretation in Maneka is the theory of concomitant or peripheral rights. The
theory of concomitant rights or peripheral rights which facilitate the exercise of a named right or
give it meaning and substance and make the right effective was not accepted. Bhagwati J, seems to
support this approach on the basis of the ''direct and inevitable” effect theory by showing that the
“direct and inevitable” effect is on the right to go abroad and not on “freedom of speech and
expression”.
Vasanthi criticizes this approach by saying that going by this logic, press rights should not be a part
of free speech as free speech is for citizens and not corporations. In order to facilitate an individual's
free speech we require the press to disseminate the information, and press freedom facilitates the
primary right as a concomitant right.

Hijab Ban case- How was art. 19 articulated? Is this case easier to answer under 25 than 19 in the
Hijab? Is the claim stronger or weaker
19 (5)- ‘in the interest of general public’- scope is extremely wide. Even if we use the narrow
typology approach we would ask the court the source of its jurisdiction. What is the scope of the
freedom of expression? When we are using art. 19 and art. 25, one of the aspects of 2 that has not
been given full effect- is the notwithstanding clause it begins with- ‘public order, morality and health
and to the provisions of the other FRs’. The scope of this provision has not been given its full
effect, and the only case in which it ruled against it. The CB decision of the SC held that one cannot
curtail the power of the head of the Dawoodi Bohra community to excommunicate the members u/
article 25- irrespective of art. 19. During the debates of the CA, there were several groups that were
hesitant about the inclusion of religious freedom- the compromise reached was to have a controlled
and truncated right, so that the right to religion does not trump other rights. However, it has
emerged that it has been given a very expansive interpretation and is a stronger claim than 19. One
cannot discount the fact that in the Hijab case, there are several rights involved- there is a minority
group inovlved, there is a discrimination- there is an impact under 21A- denial of entry to
educational institution. We need to get into the question of what is the purpose of the uniform- why
do we have a uniform in schools? It is to leave behind the markers to prevent distinction between
children, by creating an egalitarian space where they are entitled to be treated alike. This is the
justification offered for a uniform. When we were talking about Anuj Garg, we discussed the idea of
protective discrimination- women were likely to be targets of violence more than other gender-
however, this protective role cannot be used to impact other rights. The ban on hijab should be
examined in the context of other rights- to see if it is in line with their objective. By wearing
uniforms, if equal treatment is desired and a ban on hijab in fact, violates equal treatment- violative
of the rationale for uniforms as well. Uniforms are meant to further the child’s entitlements, not to
take it away.
Tandav Procession case
One of the cases decided under 19- was known as the Tandav Procession case, which manifests
Essential Religious Practices by taking out a public procession- public celebration caused disturbing
public order but nobody questions Ganesh Chaturthi processions etc- only minority processions
such as Muharram processions are questioned.
In the Tandav Procession case, the minority opinion was not decided on ERP but the fundamental
freedom of expression- whether respect to religious practices should be decided under art. 19? Just
because one is carrying out a particular way of praying to the God, it does not mean one does not
become Hindu. There are a whole range of practices that are extremely dissimilar. It was decided
under 19, where the minority held that there is a right to express your freedom of speech and
expression as well. One can restrict the application of 25, to state law that directly impacts religion.
Is the Hijab directly based on religion? One could argue it is about the fundamental right to free
speech and expression. Expression could include all expressions including religious expression- the
direct impact of this could also be 21A- right to education. The first test that comes about is the
directness test- which is useful in the sense that it gives you the sharpness of the right being affected.
In terms of the various approaches- directness test (Gopalan and Maneka in a way), typology test-
we have the question of the nexus test- within the nexus test, we have the proximity test, then we
have the reasonableness test in VG Row- 5 components/sequence in VG Row- establishing the
nature of the right involved and how it is affected, then we move to the other stages or components.
In the Hijab case, if we articulate that there is no need to wear a Hijab as it is not ERP, then we do
not move to the other questions. State power only comes in afterwards. When we talk about the
direct and inevitable effect on a particular right, it is a sub-part of directness test.
Art. 19 (2) to (6) reserves state power exclusively through restrictions, and the rights aren't merely
subject to a general regulatory power of the state in the interest of the general public. The Indian
Constitution is trying to calibrate the power for particular rights. The scope of the right was set out
by the Parliament, so that one cannot infringe into the grounds of restrictions.
Scope of the Right under article 19
HJ Kania in AK Gopalan:
“ Reading article 19 in that way as a whole the only concept appears to be that the specified rights of
a free citizen arc thus controlled by what the framers of the Constitution thought were necessary
restric- tions in the interest of the rest of the citizens. Reading article 19 in that way it appears to me
that the concept of the right to move freely throughout the territo- ry of India is an entirely different
concept from the right to "personal liberty" contemplated by article 21. "Personal liberty" covers
many more rights in one sense and has a restricted meaning in another sense. For instance, while the
right to move or reside may be covered by the expression ,'personal liberty" the right to freedom of
speech (men- tioned in article 19 (1) (a)) or the right to acquire, hold or dispose of property
(mentioned in 19 (1) (f)) cannot be considered a part of the personal liberty of a citizen. They form
part of the liberty of a citizen but the limita- tion imposed by the word "personal"leads me to believe
that those rights are not covered by the expression personal liberty. So read there is no conflict
between articles 19 and 21. The contents and subject matters of articles 19 and 21 are thus not the
same and they proceed to deal with the rights covered by their respective words from totally
different angles. As already mentioned in respect of each of the rights specified in sub-clauses of
article 19 (1) specific limitations in respect of each is provided, while the expression "personal
liberty" in article 21 is generally controlled by the gener- al expression "procedure established by
law."-
HJ Kania in Gopalan- Distinguishing between some rights under 19, where some include personal
liberty. Examining 19 under the context of 21- what would be personal liberty under 21, and what
would be personal liberty under 19? After recognising the interrelationship between rights under
Maneka, are we laying out the scope of the right and its realization? What are the components of
free speech? The right to form unions and form associations are interrelated with personal liberty.
How does one pay close attention to laying out the scope of the right?
In Gopalan, the court laid out a line of thinking as to where is the power of the state articulated and
how is it articulated- through this, it moved directly to art. 22. The Gopalan logic is usually
exemplified through one line of the decision where the court says that- law is not justice, but
settlement. This line exemplifies the attitude of the court on this question.
Whether Art 19 rights conflict with art. 21? Does PD law per se, violate FRs under art. 19? We are
setting up a conflict between art 19 and 21. While a law can be made under PD u/art. 22, can it
come in conflict with art. 19. The idea of interrelationship is that the rights should not conflict with
each other, they are meant to be read harmoniously to expand each other’s scope.
Moral desert (can be used to lay out nature of the right among the tests)- There is speech that is
deserving of protection, this can be seen in the obscenity line of cases, where you are saying that
something even though obscene can be considered protected under Article 19(1)(a) because it is
socially relevant, an artistic expression.
“Deprivation (total loss) of personal liberty, which inter alia includes the right to eat or sleep when
one likes or to work or not to work as and when one pleases and several such rights sought to be
protected by the expression "personal liberty" in article 21, is quite different from restriction (which
is only a partial control) of the right to move freely (which is relatively a minor right of a citizen) as
safeguarded by article 19 (1) (d). Deprivation of personal liberty has not the same meaning as
restriction of free movement in the territory of India”- HJ Kania, AK Gopalan
Kharak Singh
Facts: The petitioner Kharak Singh was challenged in a case of dacoity in 1941 was released u/s. 169
of the CrPC as there was no evidence against him. On the basis of the accusation made against him
he states that the police have opened a “history-sheet’ in regard to him. Regulation 228 which occurs
in Chapter 22 or the Police Regulation defines “history-sheets” as "the personal records of criminals
under surveillance That regulation further directs that "history-sheets" should be opened o for
persons who are or are likely to become habitual criminals or the aide or abettors of such criminals.
These history-sheets are of two classes: Cla A for dacoits, burglars, cattie-thieves, and railway-goods-
wagon thieves, and Class 8 for those who are confirmed and professional criminals who commit
crimes other than dacoity, burglary, etc. like professional cheats. is admitted that a history-sheet in
Class A has been opened for the petitioner and he is therefore "under surveillance."
Frequently the chaukidar of the village and sometimes police constables enter his house, knock and
shout at his door, wake him up during the night and thereby disturb his sleep. On a number of
occasions they have compelled him to get up from his sleep and accompany them to the police
station to report his presence there. When the petitioner leaves his village for another village or
town, he has to report to the chaukidar of the village or at the police station about his departure. He
has to give them information regarding his destination and the period within which he would return.
Immediately the police station of his destination is contacted by the police station of his departure
and the former puts him under surveillance in the same way as the latter
It is said that the freedom to move freely is carved out of personal liberty and, therefore, the
expression "personal liberty" in Article 21 excludes that attribute. In our view, this is not a correct
approach. Both are independent fundamental rights, though there is overlapping. There is no
question of one being carved out of another. The fundamental right of life and personal liberty have
many attributes and some of them are found in Article 19.
So the petitioner can legitimately plead that his fundamental rights both under Article 19(1)(d) and
Article 21 are infringed by the State.
While holding the regulation unconstitutional under art. 21, the Court rejected the petitioner’s claim
that the shadowing of habitual criminals infringed his right to privacy because this right was not
recognized as a fundamental right under India’s Constitution.

Justice Shah joined in with Justice Subba Rao’s opinion. They agreed with the majority in so far as
the provision for domiciliary visits was unconstitutional. However, Justice Subba Rao considered
that the Regulations in their entirety violated the right to freedom of movement and the right to life
and were therefore unconstitutional. Justice Subba Rao held that the right to life and personal
liberties under Article 21 provided protection against any encroachments on personal liberties,
whether direct or indirect. He considered that the right to privacy was to be considered a
fundamental right under Article 21, even though the Constitution did not expressly provide for it
(unenumerated right- link Dworkin). He argued further that the supervision of one’s private life as
provided in the regulations clearly violated this right. Since the regulations could not be considered
to be “law”, it followed that they violated Article 21.

Furthermore, Justice Subba Rao considered that the infringement of the right to privacy
prevented a person from expressing his or her innermost thoughts. He found, therefore, that
the regulations also violated the right to freedom of expression, as protected under Article 19(1)(a)
of the Constitution. Furthermore, Justice Subba Rao held that the right to freedom of movement,
protected under Article 19(1)(d), had been violated as this right included not just freedom from
physical obstructions to movement but also the right to move freely, without undue restrictions. He
considered that shadowing by the police constituted a restriction on this freedom of movement.
Justice Subba Rao therefore considered that the regulations in their entirety violated fundamental
rights and were unconstitutional.

- Justice Subbarao in Kharak Singh (64)

VASANTHI PPT EXTRACT: R.C. Cooper case ((1970) 2 SCC 298 Shah, J., speaking on behalf of
the majority pointed out that "Part Ill of the Constitution weaves a pattern of guarantees on the
texture of basic human rights. The guarantees delimit the protection of those rights in their allotted
fieIds they do not attempt to enunciate distinct rights'
Rejecting the water tight compartment rule and the carving out rule Hardhan Saha following this
ratio tested MISA under 19 although it found that none of the rights stood infringed
There is a universality about rights which is important to acknowledge. But in addition to
universality, there is a general idea of freedom. Irrespective of whether the indian consti gave free
speech or not, it would be there as a general principle of democratic countries as most democratic
countries provide it. Thus, in addition to general principles, what is relevant is the adaptation of the
right to the general context of the nation. This is where 19(2) comes into the picture. While
democratic principles were acknowledged, we wanted the state to have some power to curtail some
of these freedoms. One cannot claim an absolute free speech. Thus there is a very negotiated and
complex understanding of the right.
Thus, while it must be acknowledged that we referred to a lot of foreign constitutions while we were
drafting our own consti. But, how much weightage should that hold while we interpret the Indian
constitution.
We havent used the same terminology as the UK, for instance, the tests employed there are adapted
to the specific context of India. In the Indian context particularly, the conflict arises with the fact
that the courts that interpret the constitution were not involved in the drafting process at all. So the
interpretation may be such that the drafters did not envision at all.
India did not exist as a nation before the state came into existence.
Through all the cases- Lohia, Brij Bhushan, Ramji Lal, Thapar etc- the ground of ‘public order’ is
common between them. These provisions are law which are criminalizing speech- should we
criminalize speech that leads to a public order situation? If the speech incites public order then it is
valid. However, the problem comes when it is preventive action- prior restraint based on a
likelihood of public disruption or threat to public order.
‘Public order’ is a very vague term. It becomes all the more problematic if it is exercised based on
prior restraint- very subjective exercise of power. RC Cooper and Menaka use 19, but for very
different purposes- they do not open up 19 in a way we are dealing with it in cases of free speech.
Do these cases in that sense, help us in evaluating the acts of an administrative authority? RC
Cooper and Menaka do not lay out the scope of the restrictions under 19- the cases relevant
continue to be Shailabala Devi and Lohia- which are still referred to lay out the scope of the right.
Where does comparative constitutional law allow us to place the Indian experience, in comparison
to other jurisdictions? The US experience for example, did not see the amount of violence related to
partition- never saw free speech as something that can lead to riots. In India, we continue to witness
disruption at a serious level. Pilate’s Paramount Duty places free speech in India and blasphemy laws
in the context of other countries in South Asia.
In India till date, we do not have a law against blasphemy. Even before the Constitution came into
effect, IPC was criminalizing free speech- not incitement to offense. Why did the IPC, pre-
constitutional laws automatically be void for coming into conflict w. Art. 19? This was the question
in Ramji Lal Modi- shouldn't Art. 295 IPC (hurting religious sentiments) be unconstitutional? Pilate
frames this question through comparative constitutionalism- by presenting two models. One- US
Model and Second- Indian Model. The context of Pilate’s Paramount duty- “Was Pilate right in
crucifying Christ? I reply, Pilate’s Paramount duty was to preserve the peace in Palestine, to form the
best judgement he could as to the means required for that purpose and to act upon it when it was
formed. Therefore, if and in so far as he believed in good faith and in reasonable grounds, that what
he did was necessary for the preservation fo the peace of Palestine, he was right”. If there is any
attempt to disturb public order- does the state have such a paramount duty to maintain
public order. The seamless web- in India we cannot talk about only one value that is paramount.
Free speech is not the only factor that's considered- how does one not privilege either free speech or
public order? Stephen argued that there is a need for such a provision in the Indian context as the
need to maintain public order is a paramount duty of the State. If this is the basis for criminal law
and the restrictions under 19, how do we break the impasse? Is it going to be based on the individual
decisions of the SC, HCs? He uses comparative constitutional law to argue that one does not have to
use the American test of ‘real danger’, IPC allows perceived danger- therefore, US model cannot be
applied. Through comparative constitutional law, we find an alternative. In the specific content of
religion- how does one measure free speech?
Criticizing a religion is not simply to denigrate, but to open it up to criticism. The purpose of the
speech must be considered. Criticisms of Sabrimala and Triple Talaq would not be blasphemous?
How do we deal with such cases? Can we evaluate speech on the basis of this? In Bennett Coleman,
the minority opinion- held that there is a general regulatory power of the state in the interests of the
general public. How do we make the distinctions between free speech facilitating criticism and free
speech inciting violence? We are still in a country where religion is a heated topic- so we cannot
blindly adopt the view of the European courts. Freedom of speech does not necessarily have to be
socially relevant. What part of speech is a part of personal liberty? In Kharak Singh, we have seen
rights overlap. This is where the author is giving an idea that one can discuss these rights, without
causing injustice to any other provision of the Constitution- can be read harmoniously. The
argument for hate speech is also coming from the experience of religious minorities (particularly
Jews at the receiving end of the Holocaust led to such strict laws in Germany), this is where broad
lines can be drawn to distinguish.
We know that there have been two approaches that courts parallely use. Brijbhhushan and Thapar.
Art. 14, 19 and 21 are supposed to be the key to the FR. Why do we even need an art. 19
when personal liberty is protected under art. 21? Art. 21 is in fact, wider as it applies to
persons- both citizens and non-citizens, so why do we need art. 19? When we start looking at
the debates on art. 19, and the kind of debates under art. 21- we must focus on some
commonalities. An important case in this regard is AK Gopalan- where the attempt was to
hold them as distinct rights that must be separated. However, later in Maneka we see the need
to read them together, and not to be isolated. The reason we must read them together is not
to try and narrow down the scope of the right, but to enhance the scope of the right. The
need for art. 19 goes back to the fundamental question of the need for a written constitution.
It goes back to the question of Enumerated Right- without limiting rights to just those that
are enumerated rights (Dworkin’s argument). The value motivating the rights are important,
irrespective of whether it is enumerated or not. Therefore, the reason for enumerating is not
to make it more important, but to make very clear that there are some central elements that
ought to be binding on the State. The State in turn, is conceding that it would not interfere
with the rights- a commitment from the State. When we talk about the restrictions, it might
seem as contradictory as why would you limit an enumerated right? This is the question that
must be asked wrt art. 19. While we acknowledge in no uncertain terms that there are
fundamental values, promises and guarantee laid out in art. 19- it is significant and the State
must not ordinarily interfere with the rights. With free speech, we do not need to start as to
why freedom of speech and expression is important- it is deemed to be important.
While the State has guaranteed art. 19- the question of what free speech entails must be asked.
This is where Pilate’s Paramount Duty is relevant- as it poses the question of the two broad
approaches one must take wrt free speech. The proposition that is coming out of the reading
is that-
1) Restriction analysis- classical approach to freedom of speech. JS Mill searched for a
categorical principle that would limit the restriction on freedom of thought and discussion to
cases in which some immediate and serious harm would result from its untrammelled
exercise, without allowing the state the power to pass general judgment on the content of the
expression under consideration. (The doctrine of no prior restraint- is a restriction analysis
and not a content analysis). Romesh Thapar takes the classical approach to freedom of speech
and expression, where the court only looks at the State Power and the entire focus shifts on
the State and whether the regulation is within its ordinary power, instead of examining what
would free speech entail- the harm principle- (trying to prevent some harm) underlies the
restrictions laid out in art. 19, where the court looks at the seriousness of the harm, and in this
regard- ‘proximate and direct nexus, spark in a powder keg etc., becomes relevant,
2) Content analysis- In contrast, Stephen argued that public authorities could not properly
ignore the content of what was being communicated and its general tendency and that the
substantial limits on the powers of the state to restrict expression, which he readily admitted
were necessary, arose not from a fastidious, universal neutrality as to the value of what was
being communicated, but from more pragmatic, though still abstract, considerations of the
costs and benefits of censorship. This is the other contrasting position to understand the
specific penal offences like sedition, hurting religious sentiments is how Stephen said that
content could not be ignored, and if a speech has a particular tendency (‘bad tendency test’
from Ramji Lal Modi), then we look at the costs and benefits of censorship (when we look at
what is worth protecting and what is not worth protecting, we inevitably attempt to
understand free speech in terms of its content). The proposition here
S. Rangarajan v. P. Jagjivan Ram (1989)- spark in a powder keg
The problem of defining the area of freedom of expression when it appears to conflict
with the various social interests enumerated under Article 19(2) may briefly be touched
upon here (Begins with the harm principle). There does indeed have to be a
compromise between the interest of freedom of expression and social interests. But we
cannot simply balance the two interests as if they are of equal weight. Our commitment
to freedom of expression demands that it cannot be suppressed unless the situations
created by allowing the freedom are pressing and the community interest is endangered.
The anticipated danger should not be remote, conjectural or far fetched. It should have
a proximate and direct nexus with the expression. The expression of thought should be
intrinsically dangerous to the public interest (how do we analyse this dangerousness?-
the separation of the content and the harm principle becomes blurred- even after
starting with the harm principle, we inevitably slip into a content analysis). In other
words, the expression should be inseparably locked up with the action contemplated
like the equivalent of a "spark in a powder keg".
Minimalist approach- stick only to the question in front of you
Maximalist approach- Dealing with all related questions also.
The proportionality analysis allows us to look at the compelling interests, balancing etc., at
different stages, so the question is where do we start? As we read case law, we see cases using
everything together, and an approach that allows us to separate the issues and the idea of a 4-
stage analysis in proportionality becomes important.
When we are trying to talk about a right, it is useful to set out the extent of the right in its
entirety. The criticism of Aadhar II is that the way the court goes about this leads to a
truncated understanding of the right in itself. The purposive analysis allows you to lay out
what is the right in question.
R. Rajagopal v. State of TN (1994)- considered a precursor to the privacy judgment. A
convicted criminal was publicising his memoir putting names of public officials as his
accomplice. Public officials thought it to be defamatory. The question was whether the public
officials have a power to enforce prior restraint or state has to protect individual rights. There
was a question of privacy of public officials v. individual rights.
“We may now consider whether the State or its officials have the authority in law to
impose a prior restraint upon publication of material defamatory of the State or of
the officials, as the case may be? We think not. No law empowering them to do so is
brought to our notice. As observed in New York Times v. United States, popularly
known as the Pentagon papers case, "any system of prior restraints of (freedom of)
expression comes to this Court bearing a heavy presumption against its constitutional
validity" and that in such cases, the Government "carries a heavy burden of showing
justification for the imposition of such a restraint". We must accordingly hold that no
such prior restraint or prohibition of publication can be imposed by the respondents
upon the proposed publication of the alleged autobiography of "Auto Shankar" by the
petitioners. This cannot be done either by the State or by its officials. In other words,
neither the Government nor the officials who apprehend that they may be defamed,
have the right to impose a prior restraint upon the publication of the alleged
autobiography of Auto Shankar. The remedy of public officials/public figures, if any,
will arise only after the publication and will be governed by the principles indicated
herein.”
Whether public officials carrying on their duty can prevent a criminal from expressing their
right in the manner they choose- raises a question concerning the freedom of press vis-à-vis
the right to privacy of the citizens of this country. It also raises the question as to the
parameters of the right of the press to criticize and comment on the acts and conduct of
public officials. The court refers to the idea that any system of prior restraint carries a heavy
burden of showing justification for the imposition of such a restraint. While on the one hand,
the court says that there is no prior restraint, on the other, we have internet shutdowns in
Anuradha Bhasin.
Court also made a remark that when a public official is following their public duty, they are
opening themselves to criticism. State officials cannot make claims of privacy (a
provision meant for citizens against the State) against the free speech right of citizens.
The question is who can rights be claimed against?
A citizen’s right to free speech v. another citizen’s right to privacy need not necessarily be
competing- it is possible when you cull out the scope of the right.
Courts have upheld the freedom of speech, and also recognised the state’s FR esp. Privacy
( Official Secrets Act is one example)

The court goes on to say that the right to privacy is already an established right (irrespective of
Kharak Singh which said right to privacy does not exist). The idea of what constitutes privacy is
important.

“(3)There is yet another exception to the rule in (1) above- indeed, this is not an exception
but an independent rule. In the case of public officials, it is obvious, right to privacy, or for
that matter, the remedy of action for damages is simply not available with respect to their
acts and conduct relevant to the discharge of their official duties (Opens themselves up to
censure and criticism- not the same way we see an ordinary citizen’s right). This is so even
where the publication is based upon facts and statements which are not true, unless the
official establishes that the publication was made (by the defendant) with reckless disregard
for truth. In such a case, it would be enough for the defendant (member of the press or
media) to prove that he acted after a reasonable verification of the facts; it is not necessary
for him to prove that what he has written is true. Of course, where the publication is proved
to be false and actuated by malice or personal animosity, the defendant would have no
defence and would be liable for damages. It is equally obvious that in matters not relevant to
the discharge of his duties, the public official enjoys the same protection as any other citizen,
as explained in (1) and (2) above. It needs no reiteration that the judiciary, which is protected
by the power to punish for contempt of court and Parliament and legislatures protected as
their privileges are by Articles 105 and 104 respectively of the Constitution of India,
represent exceptions to this rule.”

Privacy cannot be claimed by the State to impose a restriction on the citizen’s freedom of
expression. The origin of the right to privacy (Kharak Singh) was to see the freedom of an individual
from state surveillance, and this is very different from its use by the State in the present case. The
business of talking about a conflict of rights and why it should be avoided- it is ideal to find a way to
give effect to both rights, instead of trumping one over the other unless it is absolutely necessary.
The right to privacy of one individual and the right to free speech of the other should not be viewed
as conflicting rights. The scope of the public official’s claim to privacy as against the individual’s
claim to free speech was looked at, and since the former does not exist at all as it must be opened to
criticism, the latter was given effect.

Understanding the Scope of Fundamental Rights is important- Barak

This is especially dealing with 19 and 21 and it also involves 14 to some extent. 14 cases talk more
about whether a certain measure violates equality while 19 and 21 cases talk about the inclusion of
more specific rights under the broader ambit. This happens more in the cases of 19 because it is
written in a stricter and more rigid manner. How does one talk about purposive interpretation and
how does one understand it? Vasanthi says that the Barak reading can help with that.
Purposive Interpretation distinguishes between the scope of the constitutional right and the extent
of the right’s realization. Scope is determined through an interpretation of the text in which the right
resides. When the right is within a constitutional text, there are several theories of constitutional
interpretation. Constitutional interpretation is like the interpretation of any other text, but there is a
fundamental difference between the constitution and any other statute. A statute defines present
rights and obligations, is easily enacted and repealed and a constitution can be contrasted on these
points. If we are saying that a constitution is meant to define present and future rights, it will
necessarily have to be interpreted in a broader manner. While statutes may talk about future rights, it
is not necessary. These are the fundamental differences.
When we are talking about constitutional interpretation, we have to consider the question of
whether a right should be treated as a rule or a principle arises. Barak says that if you look at rights
as principles, you can find majestic generalities. It is not meant to give you a narrow understanding.
For example, when you say speech, there is a particular meaning of speech that needs to be
addressed. We need to move away from this and say that rights are intended to be vague, open
textured and understood as principles rather than very specific rules.

Purposive Rights- (Barak)- what is purpose of freedom of movement? Is dignity a right or a value?

Value- A far wider and more nebulous concept which gets diff shapes at diff times.

Free speech is a right but underlying value is life v. liberty. Being un-free is being undignified. Most
rights have their values implicit in them. Sometimes, dignity is a right as well in cases such as
discrimination.

Question- Do prisoners have article 19 rights (Rajagopalan case)?

Kharak and Rajgopalan- Privacy rights start getting enumerated. Even a minority opinion was picked
up. Here, the distinction between implicit text v. explicit text becomes relevant as would be
discussed below.

Enumerated Rights v. Unenumerated Rights

When we are talking about principles, it does not mean that the text loses importance. The principle
needs to be developed on the basis of the context. There is an explicit and implicit constitutional
text. This is what is meant by the enumerated and unenumerated distinction. There are rights which
are explicitly provided for and those which are not explicitly provided for, but so close to the explicit
and both are a part of the right. Despite the lack of explicit provisions, one may persuasively argue
that the constitution includes separation of powers, rule of law and judicial independence. When we
are talking about implicit, all implicit is not necessary of a lower status than the core. An example is
Subramanium Swamy where right to reputation was given an equal status as free speech, despite
reputation being implicit and free speech being explicit. The scope of both these rights is different
however and in these cases, you need to do a second stage analysis. Implicit rights are as important
as explicit rights. However, there are rights which are not core rights. With respect to reputation and
dignity, they are different ideas and dignity is a core right that is available to all. If you make dignity
arguments against free speech, dignity will prevail. But the same cannot be said for reputation. This
is why it becomes important to understand the scope of a constitutional right when performing the
exercise of constitutional interpretation.
There can be rights like reputation which are a part of 21 but we need to ask if they are so important
that they can trump free speech. This is why it was argued that reputation cannot trump free speech
but the court allowed it. This is why the decision in Subramanium Swamy is wrong despite the court
not making the enumerated and unenumerated decision. There is a lot of implicit text that is more
important than explicit text. Rule of law, secularism, separation of powers, collegium system, judicial
independence are all examples of very important implicit rights.
The distinction between explicit and implicit texts should not be confused with the distinction
between the core of the constitutional right and its penumbra. Both the right's core and its
penumbra constitute part of the constitutional right, regardless of whether this has been established
by the explicit text or deduced from the implicit part. An example is the right to carry out trade and
business. There is a right to be free from arbitrary taxation but there is no right to be free from taxes
altogether. Right to carry on trade is an absolute right, but the right to freedom from taxation is not
an absolute right. If there is something that directly affects the right to carry on business, it will
definitely be unconstitutional. However, if there is a restriction against operation of a liquor store
near a school, then that is just an infringement of penumbral right. We need to understand the
difference between penumbral rights and implicit rights.
The difference between core and penumbra rights is not related to the content or scope of the right
but the extent of the right’s protection and legal protection. In Maneka, Justice Bhagwati said that
free speech is an aspect of travel but the right to travel cannot be protected. He spoke of
concomitant rights, which can in turn be understood as penumbral rights. The stage at which it
needs to be applied is very important. Justice Nariman said there are three types of free speech;
expression of opinion, activism and incitement. Reasonable restriction should not even come in the
first two areas but can be enforced in the third area. The distinction between core and penumbra is
where the proportionality approach comes into play.
The distinction between explicit and implicit texts should not be confused with the distinction
between the core of the constitutional right and its penumbra. Both the right's core and its
penumbra constitute part of the constitutional right, regardless of whether this has been established
by the explicit text or deduced from the implicit part.
PUCL v. UOI in 1997 related to telephone tapping. While there was a privacy argument, the
question was whether the court could come up with a procedure in this context. When we are
referring to procedural due process, the question is not whether phone tapping is principally good or
bad or is an unreasonable restriction or casts a chilling effect on free speech. PUCL is a good case to
tell us about procedural due process and how the court set up an appropriate procedure to allow for
some surveillance. The term restricted does not mean a complete yes or no situation when it comes
to a right, rather it talks about infringing a right to a certain extent as long as it can be related to the
grounds under 19(2). So again, it is an argument that is looking at the grounds under 19(2). The
argument of privacy is made in PUCL and it is said that privacy is guaranteed under 19 and 21. The
only way this can be done since there is no adequate machinery to protect privacy is a prior judicial
sanction against the state. PUCL is a combination of substantive and procedural due process in the
sense that the process set out must be just, fair and reasonable and the restrictions can only be on
the grounds specified under 19(2). PUCL relies on the minority opinion of Kharak Singh which
upheld a right to privacy. We can see this as an act of balancing (generally seen in article 19)- balance
between the need to permit the State to use certain strategies and privacy.
Here, privacy rights were discussed. It is a better understanding- with a purposive interpretation
rather than a wider textual interpretation (too wide or too narrow are both problematic).
Reasonableness- we say just the existence of nexus is important.
Even in Puttaswamy, the court delves into when privacy can be breached. It is not an absolute right.
In Rajagopalan, court said Public Officials can claim privacy while performing public duty. When we
say rights arent absolute, it means we have set out specific contours of a right.
This is a case where we are doing proportionality- balancing state interest v. individual’s interest
in a certain way.
Even if national interest is entailed, the court does not automatically defer to that. Court did not
strike down the legislation either on freedom of speech or balancing.

Shreya Singhal v. Union of India (2015)

By 2015, reading of articles together (14, 19, 21) are prevalent. But here, court only upholds article
19 challenge and not article 14 challenge.

Provision challenged- Section 66A introduced by an amendment in 2009 of the IT Act 2000. 66-A.
Punishment for sending offensive messages through communication service, etc.-Any person who
sends, by means of a computer resource or a communication device,-

(a) any information that is grossly offensive or has menacing character; or

(b) any information which he knows to be false, but for the purpose of causing annoyance,
inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will,
persistently by making use of such computer resource or a communication device ; or

(c) any electronic mail or electronic mail message for the purpose of causing annoyance or
inconvenience or to deceive or to mislead the addressee or recipient about the origin of such
messages, shall be punishable with imprisonment for a term which may extend to three years and
with fine.

Explanation.- For the purposes of this section, terms "electronic mail" and "electronic mail
message“ means a message or information created or transmitted or received on a computer,
computer system, computer resource or communication device including attachments in text, image,
audio, video and any other electronic record, which may be transmitted with the message."

This case is an example of the interpretive method and will help us understand the other cases we
have read so far. The question of interpretive method is closely related to the question of doctrine.
SS looks at the restrictions contemplated by the constitution and said that the restriction which was
imposed was not a part of the reasonable restrictions which were contemplated. The amendment
introduced a whole lot of amendments and what we see in 19(2) is almost similar in terms of 19(6)
in terms of public interest. Can we really find a law that does not fit into these categories? This is not
enough and we have to look further. The courts looked at the direct and inevitable test for this
reason. After these cases and especially with Maneka coming in, there was an expansion in the
freedoms in terms of them not being restricted to 19 but also capable of being found under 21. As a
result, a narrow reading of 19 continued. Maneka also introduced due process and how is this
important for SS. SS takes us back to the first principles by not doing a 14, 19 and 21 reading at all.
Since it came after Maneka, it reflected the idea of looking at rights as a part of a spectrum. This is a
case where the court discusses 19(1)(a) through direct and inevitable test, without invoking 14 and
21. This shows us that despite an evolution, the old narrow methods are still relevant.
Court invoked doctrines of reasonableness and significance of free speech to decide this case. How
does one appreciate the contours of the rights under 19(1)(a). The American Due Process Clause
clubs what we have in India as 14 and 21. In India, we have separated equality and life & liberty. By
reading these two together, Maneka introduced the idea of due process. The question that we need
to ask here is related to the Gopalan argument of invoking 19 rights against 22. Maneka is rejecting
the idea of reading rights against each other and promoting the idea of reading rights harmoniously.
Similarly, we cannot read the rights under 19 in a manner against each other. Balancing becomes
important in the case of individual vs. group rights.
SS looks at many cases and talks about what they actually mean. In SS, the directness principle was
attracted because the impact of the legislation was directly on speech and the object was also to
curtail speech. So it can be argued that there was no need to look at any other doctrine. The problem
with 66A in light of the Romesh Thapar grounds of interpretation, is regarding finding out which
restriction applies. This is why the Romesh Thapar line of typological interpretation of looking
directly at the restriction becomes useful here. Even in Bennett Coleman, we can argue that the
import order does not relate to any of the grounds mentioned. But the Court took a different
approach and looked at the direct and inevitable effect instead. The problem is how one measure
effects because any state measure can have some effect on a right.
SS says that 66A is unconstitutional because it does not relate to anything under 19(2). SS
then goes on to say that when you want to criminalize conduct, you have to define terms that have
already been defined under penal laws because the pith and substance of the IT Act was not penal in
nature. The terms were left vague and this vagueness is what caused an issue. Which FR says that
vagueness is a ground to strike down a law? Reasonable in the sense of 19 indicates that there needs
to be reasonableness and that it must be mentioned under 19(2). Effect Test and Direct Test come
under reasonableness. Bennett Coleman uses 19 against 31 but says that 19 cannot be read against
21. An element of procedural due process has been incorporated in 21 and 31 by explicitly saying
that a law needs to be made and that law will provide for a procedure. We cannot say that due
process is absent from the Indian Constitution. The purpose of 31 was to ensure that the amounts
determined by the states would not be justiciable. 19 rights were used to say that laws can’t be made
in pursuance of 31 but the same did not happen for PD laws. Reading rights in this manner was
something that happened in Bennett Coleman and this led to the removal of the right to property.
SC and legislative actions need to be examined in a larger political context as well.
There are very hard questions to answer. We can only look at the doctrinal tools and the interpretive
methods that the courts have used. What we have seen is the use of the Romesh Thapar line of
thinking- typological approach. One of the ideas the court looks at is the significance of free speech
and how it includes individual and group rights. We look at two broad ideas. One is free speech in
terms of democratic speech and how it furthers democracy. This is why it becomes interesting to
contrast these cases with the free speech of press cases. The free press cases involve the idea of
dissent and opening the avenues of government critique while SS refers to the individual and
individual right to free speech against the collective. The court refers to the marketplace of ideas
concept, taken from American jurisprudence. This concept says that but when men have realized
that time has upset many fighting faiths, they may come to believe even more than they believe that
the very foundations of their own conduct that the ultimate good desired is better reached by free
trade in ideas-that the best truth is the power of thought to get itself accepted in the competition of
the market and that truth is the only ground upon which their wishes can safely be carried out.
This allows for all forms of speech. It has been used to justify the use of hate speech as well.
However, there are limitations to this concept and then the state steps in to regulate. The state
believes that some forms of speech do not deserve protection. Vasanthi says the idea of core of
free speech is quite useful.
Nariman says there are three concepts which are fundamental in understanding the reach of the
most basic human rights. The first is discussion, the second is advocacy and the third is incitement.
Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of 19(1)
(a). It is only when such discussion or advocacy reaches the level of incitement that 19(2) kicks in. It
is at this stage that a law may be made curtailing the speech or expression that leads to inexorably to
or tends to cause public disorder or tends to affect the sovereignty or integrity of India, the security
of the state, friendly relations with foreign states, etc. Content analysis can itself answer the
question of validity here, no need to go into restrictions (Vasanthi’s preferred approach).
Advocacy- he says even if it may be unpopular, is at the heart of art 19 (1)(a).
Incitement- adding a layer to ‘no prior restraint’. If something is inciting, it won't be part of
free speech itself.
Nariman even talks of a typological approach, but starts with a content analysis. He says free speech
here needs to be protected as it falls under only discussion and advocacy. He also went into ‘value’
of speech (which may be important in some examples of free speech but not always). Under article
19 (1)(a), you cannot simply only protect speech with values or which has some value. Even speech
with no value has to be protected.
Major Inspiration for this case (in terms of comparative Constitutional law)-
Reno v. ACCL

In Reno, Attorney General of the United States, et al. v. American Civil Liberties Union et al., 521
U.S. 844 (1997), two provisions of the Communications Decency Act of 1996 which sought to
protect minors from harmful material on the internet were adjudged unconstitutional. This
judgment is a little important for two basic Reasons - that it deals with a penal offence created for
persons who use the internet as also for the reason that the statute which was adjudged
unconstitutional uses the expression "patently offensive" which comes extremely close to the
expression "grossly offensive" used by the impugned Section 66A

61. The Supreme Court held that the impugned statute lacked the precision that the first amendment
required when a statute regulates the content of speech. In order to deny minors access to
potentially harmful speech, the impugned Act effectively suppresses a large amount of speech that
adults have a constitutional right to receive and to address to one another.

62. Such a burden on adult speech is unacceptable if less restrictive alternatives would be as effective
in achieving the legitimate purpose that the statute was enacted to serve. It was held that the general
undefined term "patently offensive" covers large amounts of non-pornographic material with serious
educational or other value and was both vague and over broad. It was, thus, held that the impugned
statute was not narrowly tailored and would fall foul of the first amendment.

Reno vs ACLU 1997- A legislation which sought to protect minors from harmful effects of the
internet (ordinarily it would have been an important factor for court to uphold the legislation). But
the court uses due process to strike down the law. Maneka smuggled due process in India- this
smuggling is the reason of reading article 14, 19 and 21 together. There, court used precision,
vagueness (all parts of due process). Even in India referring to them is referring to due process and
narrow tailoring.
The court said through the measure, the state is taking down a lot of speech in guise of protection.
There were also a question of alternatives (proportionality).
Shreya Singhal used this to bring in a whole new doctrine into article 19 (1)(a)- bring void for
vagueness, even though due process is officially not part of Indian Jurisprudence.

Even when speech is not at issue, the void for vagueness doctrine addresses at least two connected
but discrete due process concerns: first, that regulated parties should know what is required of them
so they may act accordingly; second, precision and guidance are necessary so that those enforcing
the law do not act in an arbitrary or discriminatory way.

The problem with being vague (especially in penal offenses) is that one does not know what you are
asking them to do. This vagueness is different from that of Anwar Ali, where it was connected to
classification. However, vagueness doctrine in SS is relevant because it talks of both- the citizen and
enforcement agencies.

The Indian SC uses the doctrine in KA Abbas without explicitly stating it as due process
(Compelling necessity to achieve an important governmental or societal law being a part of USSC)

The entire argument against using American doctrine in article 19 is that the entire structure of
article 19 is very different from that of the US. US law is general, but in India we have specific
power. These courts have recognised the state's general power to curtail any freedom using public
interest. However, In India, the State does not have such wide powers. The court also clarifies that a
law on public interest such as that in the US would be struck down in India as being out of the
scope of 19(2).

While Nariman accepts that we cannot directly use the US jurisprudence, it still uses the vagueness
doctrine. The SC first used typological approach, then content analysis, then void for
vagueness and “ultimately” Chintaman Rao and VG Row test.

So, is the reasonableness test of VG Row, the ratio of the test? At the end of the day, VG Row
seems to be the end that the test of Article 19 (1)(a) seems to have reached. In that sense, VG Row
brings together the various tests under article 19.

“None of the expressions used in Section 66A are defined. Even "criminal intimidation" is not
defined it is obvious that expressions such as "grossly offensive" or "menacing" are so vague that
there is no manageable standard by which a person can be said to have committed an offence or not
to have committed an offence

It is clear that Section 66A is unconstitutionally vague. Ultimately, applying the tests referred to in
Chintaman Rao and V.G. Row's case, referred to earlier in the judgment, it is clear that Section 66A
arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance
between such right and the reasonable restrictions that may be imposed on such right”.

Multiple strands of reasoning: Content analysis

There are three concepts which are fundamental in understanding the reach of this most basic of
human rights. The first is discussion, the second is advocacy, and the third is incitement. Mere
discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article
19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article
19(2) kicks in.

The definition does not refer to what the content of information can be.such information may have
scientific, literary or artistic value, it may refer to current events, it may be obscene or seditious.

That the information sent has to be annoying, inconvenient, grossly offensive etc., also shows that
no distinction is made between mere discussion or advocacy of a particular point of view which may
be annoying or inconvenient or grossly offensive to some and incitement by which such words lead
to an imminent causal connection with public disorder, security of State etc

Other grounds

State has claimed that the said Section can be supported under the heads of public order,
defamation, incitement to an offence and decency or morality.

Meaning of” in the interest of”

"We do not understand the observations of the Chief Justice to mean that any remote or fanciful
connection between the impugned Act and the public order would be sufficient to sustain its
validity.“

Also uses reasonableness of restriction in terms of VG Row

Mohd. Faruk v. State of Madhya Pradesh & Ors.,

"The Court must in considering the validity of the impugned law imposing a prohibition on the
carrying on of a business or profession, attempt an evaluation of its direct and immediate impact
upon the fundamental rights of the citizens affected thereby and the larger public interest sought to
be ensured in the light of the object sought to be achieved, the necessity to restrict the citizen's
freedom, the inherent pernicious nature of the act prohibited or its capacity or tendency to be
harmful to the general public, the possibility of achieving the object by imposing a less drastic
restraint, and in the absence of exceptional situations such as the prevalence of a state of emergency-
national or local-or the necessity to maintain essential supplies, or the necessity to stop activities
inherently dangerous, the existence of a machinery to satisfy the administrative authority that no
case for imposing the restriction is made out or that a less drastic restriction may ensure the object
intended to be achieved."

Vasanthi then digresses from the topic at hand and begins to talk about obscenity cases and the
censor board when it comes to films and books that are permissible to be circulated.
Court in SS also talks about due process in the sense of importing American judgments. The court
in Bennett Coleman already said that you could not incorporate American judgments because the
Constitution did not have the kind of restrictions that India has. This is really curious because the
free speech clauses from American Case Law had been incorporated in the part.
15. It is significant to notice first the differences between the US First Amendment and Article 19(1)
(a) read with Article 19(2). The first important difference is the absoluteness of the U.S. first
Amendment - Congress shall make no law which abridges the freedom of speech. Second, whereas
the U.S. First Amendment speaks of freedom of speech and of the press, without any reference to
"expression", Article 19(1)(a) speaks of freedom of speech and expression without any reference to
"the press". Third, under the US Constitution, speech may be abridged, whereas under our
Constitution, reasonable restrictions may be imposed. Fourth, under our Constitution such
restrictions have to be in the interest of eight designated subject matters - that is any law seeking to
impose a restriction on the freedom of speech can only pass muster if it is proximately related to any
of the eight subject matters set out in Article 19(2).
But the important thing to note here is that no right is absolute. There can be reasonable
restrictions.
16. Insofar as the first apparent difference is concerned, the U.S. Supreme Court has never given
literal effect to the declaration that Congress shall make no law abridging the freedom of speech.
The approach of the Court which is succinctly stated in one of the early U.S. Supreme Court
Judgments, continues even today. In Chaplinsky v. New Hampshire, 86 L. Ed. 1031, and Justice
Murphy who delivered the opinion of the Court put it thus:-
"Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well
understood that the right of free speech is not absolute at all times and under all circumstances.
There are certain well- defined and narrowly limited classes of speech, the prevention and
punishment of which has never been thought to raise any Constitutional problem. These include the
lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words-those which by
their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well
observed that such utterances are no essential part of any exposition of ideas, and are of such slight
social value as a step to truth that any benefit that may be derived from them is clearly outweighed
by the social interest in order and morality. 'Resort to epithets or personal abuse is not in any proper
sense communication of information or opinion safeguarded by the Constitution, and its
punishment as a criminal act would raise no question under that instrument.' Cantwell v.
Connecticut, 310 U.S. 296, 309, 310, 60 S.Ct. 900, 906, 84 L.Ed.1213, 128 A.L.R. 1352
We are basically saying that right to free speech does not even include some forms of speech. In the
controversy relating to TV Programs that took place in 2020, the court said that it was not even a
question that came under the rights to free speech. When SS refers to Indian Express Newspapers
case, the idea that comes out is that US judgments cannot be taken as they are because of differences
in the constitution. It is unclear as to what the judge’s exact position on the marketplace of ideas
concept is. What we must take away is that not all types of speech are protected.
21. Under our constitutional scheme, as stated earlier, it is not open to the State to curtail freedom
of speech to promote the general public interest. In Sakal Papers (P) Ltd. & Ors. v. Union of India,
[1962] 3 S.C.R. 842, this Court said:
"It may well be within the power of the State to place, in the interest of the general public,
restrictions upon the right of a citizen to carry on business but it is not open to the State to achieve
this object by directly and immediately curtailing any other freedom of that citizen guaranteed by the
Constitution and which is not susceptible of abridgment on the same grounds as are set out in clause
(6) of Article 19. Therefore, the right of freedom of speech cannot be taken away with the object of
placing restrictions on the business activities of a citizen. Freedom of speech can be restricted only
in the interests of the security of the State, friendly relations with foreign State, public order, decency
or morality or in relation to contempt of court, defamation or incitement to an offence. It cannot,
like the freedom to carry on business, be curtailed in the interest of the general public. If a law
directly affecting it is challenged, it is no answer that the restrictions enacted by it are justifiable
under clauses (3) to (6). For, the scheme of Article 19 is to enumerate different freedoms separately
and then to specify the extent of restrictions to which they may be subjected and the objects for
securing which this could be done. A citizen is entitled to enjoy each and every one of the freedoms
together and clause (1) does not prefer one freedom to another. That is the plain meaning of this
clause. It follows from this that the State cannot make a law which directly restricts one freedom
even for securing the better enjoyment of another freedom. All the greater reason, therefore, for
holding that the State cannot directly restrict one freedom by placing an otherwise permissible
restriction on another freedom." (at page 863)
So the right to free speech cannot be taken away as a part of an objective to impose business
restrictions. This shows us how from Gopalan to Maneka and Sakal Papers, rights under 19 are not
distinct from each other and are in fact inter-related. Restrictions on one right cannot result in a
justification of another. This becomes particularly important when looking at criminal defamation
case which reads free speech against the right to dignity. Even BNC does not do this kind of a direct
conflict.
22. Before we come to each of these expressions, we must understand what is meant by the
expression "in the interests of". In The Superintendent, Central Prison, Fatehgarh v. Ram Manohar
Lohia, [1960] 2 S.C.R. 821, this Court laid down:
"We do not understand the observations of the Chief Justice to mean that any remote or fanciful
connection between the impugned Act and the public order would be sufficient to sustain its
validity. The learned Chief Justice was only making a distinction between an Act which expressly and
directly purported to maintain public order and one which did not expressly state the said purpose
but left it to be implied there from; and between an Act that directly maintained public order and
that indirectly brought about the same result. The distinction does not ignore the necessity for
intimate connection between the Act and the public order sought to be maintained by the Act." (at
pages 834, 835) "The restriction made "in the interests of public order" must also have
reasonable relation to the object to be achieved, i.e., the public order. If the restriction has
no proximate relationship to the achievement of public order, it cannot be said that the
restriction is a reasonable restriction within the meaning of the said clause." (at page 835)
"The decision, in our view, lays down the correct test. The limitation imposed in the interests of
public order to be a reasonable restriction, should be one which has a proximate connection or
nexus with public order, but not one far-fetched, hypothetical or problematical or too remote in the
chain of its relation with the public order..........There is no proximate or even foreseeable connection
between such instigation and the public order sought to be protected under section. We cannot
accept the argument of the learned Advocate General that instigation of a single individual not to
pay tax or dues is a spark which may in the long run ignite a revolutionary movement destroying
public order" (at page 836).
In this case, the court distinguishes between law and order, public safety and public order. Lohia
clarifies the contours of public order. Public order necessarily requires direct and inevitable test.
Court in SS uses this test for the IT Act. The court only upholds the 19 challenge but says that the
14 challenge does not apply. We need to read this in light of Gopalan and Maneka and how they
read 14, 19 and 21 together.
Read this-
https://indconlawphil.wordpress.com/2015/03/26/the-striking-down-of-section-66a-how-indian-
free-speech-jurisprudence-found-its-soul-again/

Subrahmanian Swamy vs UOI

Almost the entire freedom struggle was seen as seditious. Should you necessarily read defamation as
criminal defamation, or can you tone it down- in the context of how criminal defamation is being
used to muzzle free speech. Gopalan technically stands overrun but the line of thought kind of
sustains-we haven't really moved from that position. This case tells us again why we haven't moved
from this understanding and why these spaces continue within the understanding of free speech
notwithstanding that shreya singhal took a very wide and liberal understanding of free speech.
Obviously shreya singhal also only looked at article 19(1).

Another dimension that must be brought in is that of positive rights and negative rights. Is this
distinction artificial?

Words like negative and positive are used based on whether the state is facilitating or prohibiting. In
terms of free speech are there rights that are distinctly negative rights?

Right against self-incrimination is a part of article 20. Now is this restricted to article 20, but can a
right to be silent is a part of article 19. The right to take a decision about your life,

All of the rights under article 19 are read to have that negative rights within them These negative
rights are distinct rights that are not part of the other rights. Thus, in article 19 there is a strong
distinction of positive and negative rights under article 19.

Criminal defamation w the understanding of positive and negative rights-

- All the rights under article 19(1)(a). Positive and negative rights in this context have a
different meaning as compared to the general use of positive and negative rights

SUBRAMANIUM SWAMY V. UOI

- There is a connection to the RAJGOPAL case- while one talks about the prevention of
publication of the memoirs in the rajgopal case, the question here is should a criminal
defamation angle be taken up? Now the court refused to engage with this issue; but the
arguments made in this case should be looked at
- Arguments made: Criminal defamation what is the interest of the state regarding matters
b/w individuals? What is the public interest? - Another dimension is that defamation deals
with an individual interest, while the other grounds under 19, pertain to community interests.
- How we read article 19(1) and article 19(2)- both need to be read purposely and no need to
discuss if it is a private interest or public interest. All rights falling here will affect society. It
is not worthwhile to have a right that is an individual right, which is not guaranteed to
everyone. Rights which are talking about personal liberty are not guaranteed.
- Preferred right, needs to prevail over other interests
- Purpose of criminal prosecution is not restitutive
- Concept of defamation is arbitrary and vague- void for vagueness.
 - An authority such as the press council or NSBA could hear cases against media professionals
rather than a criminal court.
- Civil political rights are based on the socio-economic rights have been established.
Therefore, this idea that rights conflict, is exactly what this case does- but has not been done
till now.
- Here the argument was made that what is the state interest in preventing the defamation of
an individual? What is the ‘public interest’, the community interest- why should the State
enter the domain here? How do we even justify civil defamation, if there exists a state
defamation in this case?
- Another argument that was made was that within this right, were there certain rights that
were more valuable than the other- is free speech of such importance that it would always be
given more preference over all other rights. Even if we are recognising other rights such as
an earlier case where right to reputation was read under 21- the argument was that even if
there is a threat to right to reputation, free speech must be privileged over it.
- By having criminal consequences, we are not really achieving a restitutive objective. After
Shreya Singhal where the court used the void for vagueness doctrine. That defamation is a
changing idea would qualify it to be struck down as vague.
- What is the way in which one talks about any kind of control or regulation? This idea that it
doesnt have to only be courts and legislatures that can decide on rights- but also duly
appointed authorities. The criminal court would not be the best suited authority to decide on
free speech.
- The distinction between vertical and horizontal has meant that one cannot make an art. 19
argument in a bail criminal court, but can be made in a high court. This distinction means
that when persons interpret civil and criminal law- the ordinary court does not engage with
the constitutional interpretation of it. The SC or HC does not refuse to engage-
Chandrachud J discussed intersectional discrimination in a case dealing with rape. These
artificial distinctions lay out an entire gamut of constitutional law from criminal/civil law.
- One argument is since defamation protects individual rights, it does not deserve
constitutional protection- and hence, does not feature within art 19. The only way one can
rebut this argument is if you are talking about defamation not as an individual right, but in a
way the society is involved.

Respondents arguments-

- Restrictions are a part of 19

- 19 (2) represents community interest
- Reputation as a right under 21- equation with dignity
- Balancing of rights is imperative- drawing from parliamentary privileges- the balancing of
rights with the restrictions. Here we are saying that the restriction is a part of the right. This
understanding of reputation as a right starts at the point a person is ensured a right to
dignity. The idea of dignity has in that sense been linked to the idea of moral equality-
everybody is entitled to be treated with dignity. To even link up this idea of reputation with
dignity is conceptually very problematic. By making reputation a part of dignity rights and
21- we recognise all rights and through this, the court justifies criminal defamation.
- The 10 exceptions provide sufficient guidelines
- Framers always intended to cover criminal defamation
- Defamation need not be read along with other grounds such as security of state
-
The Subramaniam Swamy Case (Challenging Defamation as a Violation of A.19)

Subramaniam Swamy is a case related to criminal defamation. The context is that journalists were
being sued for criminal defamation, had a sort of chilling effect. This case follows a trajectory of
cases which restrict the freedom of speech- If we look at Kedar Nath (framers very clear of not
adding sedition to freedom of speech restrictions, but they upheld criminal law provisions) or Ranji
Lal Modi, the Courts have not struck down any penal laws that supposedly violated Article 19. This
case comes after Shreya Singhal, where a section of the IT Act was held unconstitutional. So, people
thought that this SC might actually strike down legislation. All said and done, this case has a criminal
law context- criminal defamation. The question was can you read down the meaning of defamation
in context that criminal defamation is used to restrict the freedom of speech. Using a typological
approach, the court held that if it falls within the restrictions, it is essentially reasonable and that
includes defamation. We have not moved away from this approach. This case upholds criminal
provisions to not be violative of freedom of speech. It also provided a new doctrine, and it is
pertinent to look at how it gets around the more liberal decision of the Supreme Court to uphold
criminal defamation.

Positive rights- negative rights

- Neither consumes the other. Negative rights also says what the state cannot do. The
distinction between positive rights and negative rights is artificial and even in laying out the
negative right of ‘Dont Discriminate’- the State has to do something to achieve it.

Which negative right do we have in article 19? Do we have the right not to speak, not to form
association, not to vote? Are these also constitutionally protected? Yes, these rights are
constitutionally protected. They also deserve constitutional protection and this is why negative rights
are important.

There exists an artificial distinction between the two, as the right to life includes the right to have a
fulfilling life- it need not have a negative right. We have a right to remain silent, but again we have
criminal law regulating it. In Art. 19, every provision has a negative rights aspect, and there are
distinct rights.

Context of criminal defamation in positive negative rights:-

- Rajagopal case- held State does not have a right to privacy. The convicts have freedom of
expression. There, the court does not get into the consequences. Rajagopal does not tell us
that criminal defamation is violative of free speech.

- Argument is for the court to define defamation- the Constitution does not use the term
criminal defamation, while other terms such as ‘public policy’ are defined. The State has
been using it to restrict press.

- Defamation is probably the only ground under 19 (2) which is mostly based on private
individual interest. So, the argument stems from the question how to read 19 (1) and (2)- the
answer is to read it purposively. All the rights under article 19 (1) have a social significance.
It is necessarily a right which talks about a society, which ahs dialogue. The dimensions of
speech under article 19 and 21 have to be understood as well.
 - In the content of speech analysis, one individual’s right to speech cannot start with the end
of the other’s right. It is setting up a conflict of rights, which diminishes the right in itself.
Civil-political rights are based on the fact that socio-economic rights are already there, and it
exists.

- This case does exactly the opposite by holding that one’s rights start where other’s end.

- In this case, an argument was made that- What is the state interest in protecting an individual
from defamation? If we want to continue to read defamation in the Constitution, at least
read it down. Whether truth can be a defence?- the law still says it is not a defence, unless
there is a public interest involved. Are these restrictions individual rights or group rights?
How do we understand the nature of rights under 19(1) and 19(2)?

- The right under 19(1) is not just an individual right, it is a value of a democratic society. Are
rights guaranteed to protect everyone? Or by guaranteeing the right you are protecting
everyone? If we look at the latter, if you protect one individual, everybody else’s free speech
is also protected. It is through the individual that you are trying to protect the community.
Even in case of defamation, you say that unless that speech has a particular value, it
shouldn’t be protected. Even in case of defense of truth, the speaking of truth should be in
the general public interest. You are trying to qualify the speech with a ‘value’ to protect it.

What is the state interest in matters which are about the individual? One understanding of the
restrictions is that where you are able to show that there lies, say public interest, the right doesn’t
even arise over there. One of the arguments was that, as was held in Shreya Singhal, the concept of
defamation is vague and arbitrary, so should be void. The court says that restrictions are a part of the
fundamental rights. We need to find a way of looking at both of them together. Reputation is a right
under Article 21, your right to dignity. You are pitting 19 against 21, so it leads to the diminution of
both the rights. There is a difference between reading together, and reading against each other. The
former expands the scope, and the latter reduces it. We are reading the restriction of ‘dignity’ under
19(2). So here we are saying that 21 is a preferred right, so dignity will be greater than speech, so
defamation should be allowed. There needs to be a balancing of rights: do citizen rights to free
speech need to be separated from let's say the rights of parliamentarians to parl. privilege. Are 19
rights in conflict with parl. privileges, should they give way to the privileges? Using this analogy, they
say that even if there is the right to free press, the right can be restricted by grounds other than those
mentioned in 19(2). So twofold argument: 1) using dignity under 21 to restrict 19, 2) using the
parliamentary privilege example to justify using 21 to restrict 19.

Connection to the Rajgopal case

Arguments made:Crm defamation-what is the interest of state regarding matters between
individuals? What is the public interest?

Preferred right, needs to prevail over other interests. Can free speech be read more
importantly than other rights, should it be privileged over the right to reputation.
Purpose of crm prosecution is not restitutive- how can sending someone to jail resolve the
civil reputation at issue?

Concept of defamation is arbitrary and vague-void for vagueness. Used Shreya Singhal to
argue that defamation is vague. How can we talk about regulation in the context of media
trials? Criminal courts need not be the best place to decide on civil rights. Ordinary courts do
not even get into the Constitutional interpretation, whereas SC can do a Constitutional
interpretation even in criminal cases. An authority such as the Press Council or NBSA could
hear cases against media professionals rather than a criminal court.

Horizontal/ vertical rights: If we are talking of defamation as an individual and not a State
right, it should not figure into article 19 (2).

Respondents arguments

Restrictions are a part of 19- it is not to say rights are not absolute. Art. 19(2) represents
community interest
Reputation as a right under 21-equation with dignity
Balancing of rights is imperative-drawing from parliamentary privileges. In this case, we have
the doctrine of balancing rights (not done earlier).
The 10 exceptions provide sufficient guidelines
Framers always intended to cover crm defamation
Defamation need not be read along with other grounds such as security of state

Respondent arguments continued

Object of free speech to advance public debate and discourse, hence speech which has no
social value is not protected
Preamble has a significance in interpretation of a.19. Speech and expression under Article
19(1)(a) must take colour from the goals set out in the Preamble and must be read in the light
of the principles mentioned therein. The Preamble in that sense is a set of tightly written out
values of the Constitution, but it is interesting to see how the Respondents are using one right
to enhance its value against another right. To do so, they are invoking Fraternity to interpret
horizontal application of rights, to show why the law criminalizing defamation is valid. Using
fraternity to justify defamation.

19(2) does not only further state interest but individual interest also. It is not only about
individual free speech being respected, but through individual free speech, group rights are
being enhanced by open discussion-
Are there particular rights in the constitution that deserve greater rights than the other? Are
they ‘preferred rights’? The individual right to reputation must give way to a more foundation
right to free speech. However, the respondent argues, which the court accepts, that the
speech and expression under Article 19(1)(a) must take color from the goals set out in the
Preamble and must be read in the light of the principles mentioned therein- in particular,
fraternity. Here, we are talking about two individual rights and using fraternity to say that
rights have a horizontal application.
Journalists are in no better position than other citizens. Rajeev Dhavan talks about how group
rights have never been given significance beyond that of the individual, of having a meaning
larger than that of the individual. When we are talking about particular speech being of a
particular value, freedom of speech of journalists has a specific elevated value in a free society,
but the respondents here argue that in distinguishing between journalist and individual’s free
speech, there is no difference (against RD’s argument). This is a consistent trend in the SC’s
decisions from Maneka (concomitant or peripheral rights does not exist- relied on NIT).
There is no need for distinct rights for members of the press was argued.

Decision

Should defamation only include civil defamation?

“We are of the considered opinion that there is no warrant to apply the principle of noscitur a
sociis to give a restricted meaning to the term “defamation” that it only includes a criminal
action if it gives rise to incitement to constitute an offence. (para 71)” . There is no reason as
to why defamation must be a restricted offence.

The discussion of free speech comes after the discussion on right to reputation, common law
on defamation and how the restrictions in 19(2) need to be read.

Para 130 Balancing of rights

One fundamental right of a person may have to coexist in harmony with the exercise of
another fundamental right by others and also with reasonable and valid exercise of power by
the State in the light of the Directive Principles in the interests of social welfare as a whole.

Derives support from several decision including Menaka, where FRs have been measured
against DPSP. The court changed its position on this since DPSP- moved towards a
harmonious interpretation of FRs with DPSP. In proceeding to read it with harmony the
court holds that “One fundamental right of a person may have to co-exist in harmony with
the exercise of another fundamental right by others and also with reasonable and valid
exercise of power by the State in the light of the Directive Principles in the interests of social
welfare as a whole.” When we have specific social welfare legislation, whether in Bank
nationalisation in the context of property or education in Champakam- in those cases, the
exercise of state power is one thing, but there is a big leap when we equate the same with
defamation laws. It would apply in the context of labour laws, education laws- there is a
compelling need. However, it is another thing to apply the same in defamation laws and the
court fails to make a distinction between the nature of the legislations. The court goes on to
say that:

“There may be overlapping between different fundamental rights and therefore it is

not a valid argument to say that the expression ‘personal liberty’ in Article 21 must be
so interpreted as to avoid overlapping between that article and Article 19(1)’
This is a challenge of the business of overlapping laws. The argument of overlapping laws was
to enlarge both. However, here, the overlapping is used to narrow down one law in the
context of the other. The harmony cannot be to narrow down the purposes of the other. The
court rejects the argument that there cannot be no conflict between 19 (1)(a) rights and 21.
This decision is significant because it forms the basis of the Aadhar II judgment. One of the
ways in which the court justifies its decision in Aadhar II by talking about rights being in
conflict with each other- socio-economic rights and right to privacy- to access benefits of the
state, one must compromise on privacy- choosing one set of rights against the other. This part
of the decision is used in Aadhar II. This opens up a pandora's box of choosing one right
over the other, therefore, this emerges as a problem. The rights should not be antithetical to
each other. The court came around to say that the rights must be read “in light of '' the
DPSPs (obligations of the state). In cases such as Bank Nationalisation case, etc., the court
read FRs with DPSP without finding a conflict between them. A harmonious interpretation
would mean that the right to reputation and speech are both facets of personal liberty
(Keshavananda Bharati is the beginning of such an interpretation, which held that no Part of
the Constitution is more important than the other, overruling Golaknath which held Part III
supercedes other Parts). While the court in this case mentioned ‘harmonious interpretation’, it
did not follow through. Instead, it read one in conflict with the other.
This idea of holistic reading out the constitution essentially means that you are reading down rights.
You are reading down the right to free speech because free speech needs to be exercised in harmony
with other rights. This is a mode of constitutional interpretation. Vasanthi asks us to look at the
seamless web idea. In Gopalan, the court was correct is refusing to read 19 against 21 because you
should be using one right to restrict the scope of the other right. But this is what is happening in
Subramanium Swamy. Since reputation does not come under any of the reasonable restrictions, the
question that arises is whether reasonable restrictions are also rights. Do we use restrictions as a
collective right for regulation, social control or social order? If you read reasonable restrictions as
rights, then you have to read them widely. This is an example of reading a restriction widely.
Defamation as a reasonable restriction is being used to read or channel the right to reputation under
21 into 19. We have channelized 21 into defamation, which is a restriction under 19(2). This is where
Subramanium Swamy gives a complete flip to the idea of reading provisions together. The
court says, if you are asking us to read rights together, then we will read 21 into the 19
restrictions and curtail the scope of 19. The carving out logic of Gopalan said that 19 rights
are carved out of 21 and they are explicit statements of rights which are implicit in 21. In that
sense, 21 was understood as a residual right. Subramanium Swamy basically uses a residual
right to restrict free speech. It is basically using an unenumerated right to curtail an
enumerated right.
Going around Shreya Singhal

Shreya Singhal has held that the difference between Indian and US law, as the US law has a
general power of regulation and not a specific power of regulation under 19 (2)- that ‘public
interest’ was not a ground to restrict freedom of speech. The distinctiveness of the Indian
Constitution is that restrictions are limited to only those mentioned in 19 (2). The court goes
on to say that:

“Once we have held that reputation of an individual is a basic element of Article 21 of

the Constitution and balancing of fundamental rights is a constitutional necessity and
further the legislature in its wisdom has kept the penal provision alive it is extremely
difficult to subscribe to the view that criminal defamation has a chilling effect on the
freedom of speech and expression”. This is curious as when has the court ever believed
that just because something is a part of a statute, it is valid. The main idea of judicial review is
to examine the legislative wisdom. After Shreya Sinhal when the court struck down 66A of
the IT Act, it is curious to see how the court attempts to elevate criminal defamation to a right
of reputation under art .21.

The court held that Shreya Singhal was only ruling on vagueness and unreasonableness, and
therefore, can be distinguished from the present case, which is ruling on right to reputation.

Going around S. Rangarajan

The court had held that “There does indeed have to be a compromise between the interest of
freedom of expression and special interests. But we cannot simply balance the two interests as
if they are of equal weight”. In this paragraph, the court is essentially saying that free speech
has a significance more than other general, public interests- privileging free speech. However,
the court here says that following Rangarajan- it proposes a doctrine of balancing fundamental
rights, a distinct doctrine since Rangarajan had only balanced FR with regulatory power of the
state.

Shreya Singhal used this to hold that s.66A did not pass the ‘tendency to create public
disorder’ test.

“Therefore, in the ultimate conclusion, we come to hold that applying the doctrine of
balancing fundamental rights, existence of defamation as a criminal offense is not
beyond the boundary of Article 19(2)”.- Final Ruling.
The argument in Subramanium Swamy is that there is no public interest. There is only a private
interest involved. The affected person can go and claim his remedy. Where is the state involvement
in this? Where is the public interest angle in this? Even if there is a public interest angle, it is very
vague. One argument was that defamation should be read down to the level of the other grounds
and some commonality should be given. The other grounds also have a social interest element. The
other argument was that the civil law on defamation would continue but it should not be made a
criminal offence because of the chilling effect.
Subramanium Swamy is important because it turns the entire idea of reading rights together on its
head. Vasanthi also wants to make a link between the right to reputation and the right to dignity.
The reading that we will discuss deals with dignity as an idea that evolved from the right to
reputation. The right to reputation is something that only a few privileged people can claim against
the general populace. This should not be conflated with the right to dignity, which is something that
is inherently available to all. This does not mean a denial of right to reputation. The question is
whether this is enough to say that free speech is being controlled. The question is the business of
proportionality. Is it large enough to curb a right as important as free speech? The remedy should
lie in a place where the right does not get affected. This case is important because we can look
at it without looking at cases of sedition. The court is not even willing to talk about free speech vis-
à-vis defamation, let alone sedition. We are also looking at how minor infringements may be
tolerated so that the major ones do not occur. But in this case, the court is refusing to tolerate even a
minor infringement. Vasanthi then digresses and talks about how you pitch a citizen against a
corporation and when you do it, where the balance should lie. 499 IPC includes companies,
association or collection of persons as such. When we say that rights of citizens should not be
compromised so that they do not harm the rights of more powerful citizens but with the watering
down of 19 rights, the corporations can have the same kind of rights. This also means that certain
corporations like the independent press do not have any rights against the individual. The rights of
an independent press are more important because they are crucial to democracy but they still do not
get any protections.
Subramanium Swamy is special because it uses this idea of balancing rights in a completely different
way. The proportionality discussion was one where you were looking at a restriction imposed on a
right. But in this context, you are using a right to restrict another right. Using social control as a
restriction also raises the whole debate of individual versus public good. When you are balancing
individual rights and group rights, can you claim the right to free speech when making a defamatory
speech against a particular community? The answer is no. This is because you are talking about an
individual right, which is also inherent in a group right and this should be used to make a speech that
is to the group’s benefit as well. This should happen even if there is something unpalatable because
it might help the group to see a different perspective. Your speech can be allowed even if it is
unpopular as long as it is beneficial and enriches the debate. So, there is no inherent conflict
between individual speech and group speech. However, when you position it as an individual right
versus a group right, you have to look at which is in the larger public interest.

Fraternity
Permissibility of criminal defamation can be tested on the touchstone of constitutional
fraternity and fundamental duty. This case is also important because of the fraternity
aspect. In the backdrop of constitutional fraternity and fundamental duty, a restriction
under 19(2) (even to the limited extent of criminal defamation) is being linked to the
need to promote constitutional fraternity and fundamental duties. Now, you are not
just bringing 21 into 19(2) but you are also saying that the freedoms under 19(2) are
subject to ideas in the preamble. Vasanthi mentions that we will discuss the whole question
of using the preamble as an interpretive aid later.

The court views the right to reputation as something that needs to be protected in light of the
preambular concept. Criminal defamation, which is related to the right of an individual to
reputation, is being linked to fraternity for some strange reason. While Ambedkar did talk about
how fraternity in the constitution is very important, it is a bit of a stretch to say that it invites an
automatic protection against criminal defamation. But the court does this regardless. It channels
fraternity into restrictions on 19. The court upheld the validity of the criminal defamation
provisions.

Article 29 and 30
Article 29. Protection of interests of minorities.—(1) Any section of the citizens residing in
the territory of India or any part thereof having a distinct language, script or culture of its own
shall have the right to conserve the same. (2) No citizen shall be denied admission into any
educational institution maintained by the State or receiving aid out of State funds on grounds
only of religion, race, caste, language or any of them.
Art 29- talks about minorities in a wider spectrum
- Language, script or culture (not religion).
Article 30- Right of minorities to establish and administer educational institutions.—
(1) All minorities, whether based on religion or language, shall have the right to establish and
administer educational institutions of their choice. 1 [(1A) In making any law providing for
the compulsory acquisition of any property of an educational institution established and
administered by a minority, referred to in clause (1), the State shall ensure that the amount
fixed by or determined under such law for the acquisition of such property is such as would
not restrict or abrogate the right guaranteed under that clause.] (2) The State shall not, in
granting aid to educational institutions, discriminate against any educational institution on the
ground that it is under the management of a minority, whether based on religion or language.

Art. 30- language or religion

Initially, the Constitution wanted to have a large section for minorities. However, when that
did not happen, we have a very truncated idea of minority in Art. 29 and 30.

Conflict between Art 29 and 30-

We have two provisions which seem to be directed at two different groups, since religion is
excluded in art. 29, but included in art. 30. We need 29 also in light of art 25 of the
Constitution.
Narrowing- if you read 30 in light of 29, all educational institutions have to do is to preserve
language, script or culture.

What special interests under article 19 are valid and which are not?
Articles 29 and 30 are both related to minority rights. Is 25 also a minority right?
Even in article 15, we asked is the right also available to dominant caste?

If you read Art. 25 (or 15) as universal rights, they are available to dominant groups as well.
If you read them as minority rights, you have to understand the need of such provisions for
everyone to enjoy the right.

Is there a conflict between art. 19 and 30?

One argument- Art. 19- Universal rights- same rights conferred to everybody. So, art. 30 is
redundant. By this logic, Art. 25 is also redundant.
Another argument- If you do not tailor rights for certain groups, then the meaning of
universal rights will not be realized.
Special interests have to be read in light of (and not in conflict of) universal rights.

Article 30 is a separate right and not an extension of article 19.

DPSP- Part IV talks of obligations on State. However, does it mean somebody has
entitlement to those obligations. For the past 20 years, SC refused to deal with DPSPs since
they were non-justiciable. The court did not understand that there are certain duties on the
government. It was the role of the court to ensure that the government is performing its
duties.

But do courts have this much authority? Can Constitutional courts be reduced just to
enforcement of private rights?
Understanding the role of the Court is coming from a historical perspective of a hesitant
court. Court does have a potential to talk about individual rights having an impact on the
larger social structure. Such courts read Part III and IV harmoniously. In fact, not just these
parts, but the entire Constitution is not read as conflicting with each other, but as a
harmonious construction.. Eg. All of the concept of rule of law cannot just be one article 21.
It has to be located in several other Parts of the Constitution.
This leads to court saying judicial review is not just in Article 32 but in the structure of the
Constitution.
All this discussion on the obligation of the State comes in cases like Aadhar II. There, the
choice between food and privacy is saying food is an obligation of the state but also a
benevolence. Here, we are inverting the relation between State and the individual.

Anuradha Bhasin case

- Internet shutdown case- Jammu and Kashmir. Art 19 challenge. This was a caase not
on individual rights. This case starts off with article 19 as a highly truncated right.
- In Kharak Singh, it said that it was a regulation and not a law. Therefore, you cant
even justify legislative backing for claiming Fundamental Rights. The court did not
strike down the order on the basis of it not being public. The court never said it was
an arbitrary power of the State.
- Balancing liberty and security is not how the rights work. It is not a choice of ‘either’.
The right to life and liberty does include the right to security. Individual needs both,
so it is not a conflict between the individual and the state.
At the outset, the court says that its limited scope is to strike a limited balance between liberty
and security concerns so that the right to life is secured and enjoyed in the best possible
manner. Firstly, this was a case that talks about internet shutdown, press freedoms and free
speech. It is in no way related to right to life. Secondly, it was not a question of 21 or an
enumerated right under 19(1)(a). Despite this, the court posits that liberty and security are at
loggerheads. Vasanthi just wants to point us to the interpretive process.

The argument made is that the wide orders were ex facie perverse and suffered from non-
application of mind due to the perverse nature of the shutdown. What does the security of the state
mean?(even though the court does not say that if this is security of state in the sense of 19). The
other argument is that the orders have been in force for a period of 100 days and the larger question
is that till when can such an idea of security trump free speech. Further, public order is not the same
as ‘law and order’. Moreover, we need to make a distinction between the traditional mode of free
speech like newspapers and modern, two-way communication media like the internet. A blanket
order/ban is not permissible. The question was whether speech on the internet can be included
under free speech.
The court does agree to some extent but points out the difficulty in regulation and imposing
reasonable restricitons. It was argued that personal use could be restricted and institutional use could
be allowed but the court said that such a distinction would be impossible. It became a complete
yes / no question without any scope for reasonable restrictions. In this case, the interpretive
question of constitutionality was never reached by the court. The court does not even have the
orders present before it. It is like Gopalan all over again. When we are talking about procedural due
process, the court does not even ask for the production of the documents. The court in this case
also uses the proportionality standards under Puttaswamy and uses it to answer questions of
restrictions on free speech. It does not lead to the conclusion that the right to internet is a part of
free speech and the state cannot control it due to the various amounts of exceptions that the court
has granted in terms of the state having the power to regulate. Court says yes, a blanket ban is
permissible. The judgment referred to the Madhya Bharat Association case, where the state used
public interest to impose a complete ban.
Does article 19 have a complete ban provision. Article 19 (6) does, but can it be read into article 19
(2)? In Anuradha Bhasin, the court read article 19 (6) rhetoric into article 19 (2). The State seems to
be putting forth the agenda that rights create problems for the preservation of peace (can be
connected to Kalpana Kannanibran’s Two Essays). There is an overlap of rights visible but this is
not how it should be done.
How do you know the restriction to what extent is valid and the minute it goes beyond that it
becomes invalid? The only thing that balancing is useful for is that-
Sometimes the court skips the establishing the right process and moves to establish the reasonable
nexus rather than engaging with the right.
There is no distinct doctrine in 21- apart from reasonableness and proportionality. Its almost a
residuary right in the consti where anything and everything can be part of this article, This way it is
hard to define the contours of 21. There is a cross-section of rights and it's very hard to organize the
rights that are coming under article 21. Puttaswamy judgment helps with bringing together the
scope of the unenumerated rights. Rights that are implicit in the consti but not enumerated.
There is an originalist interpretation and an interpretive interpretation of the consti-
For the most part we follow the originalist interpretation.
The court is saying that although there were occasions where the court has said that privacy was not
an integral part of the consti, those need to be held down in the context of us now saying that
privacy is the core of human dignity. If we use dignity to organise the framework of rights
particularly under article 21.
We know that kharak singh was in reference to article 19 and gopalan was in reference to article 22.
Now the fact that privacy was argued; we need to see cases like kharak singh, govind and rajgopal.
When we say personal liberty we cant confine it to the rights of physical restraint only. There is one
strand if cases even in the reference to privacy which come in the context of states power to
physically restrain people.
Why should we argue about the substantive due process?
In the process of restating the law, the court talks about how earlier decisions have interpreted
privacy. Especially if you read kharak sngh, you realize that privacy is not part but talks about how
what happens in one’s home is not the state's business. In essence its the concept of privacy only
even if the state doesn't say it.
The second stage is- what is the state trying to do when we are trying to understand the privileging
of the legislative action. Need to understand that the state is also given a status and is an interpreter
of rights.
Why did the court have to get into the question of if this is part of article 21? Even if it is part of
the consti; if it is not seen as part of the fundamental right then it can be seen as a constitutionally
protected value and this value can be protected by statute.
The idea that what is the distinction b/w protecting st by the statute and st that is coming from the
constitution. To source a right from a better source is the substantive due process. The gopalan logic
was any procedure would do, but its not just any procedure; is there due process of law?
Compelling interest is coming from due process. The contours of due process is different for us, we
have to look at the content of the right as well as the way in which it may be of compelling interest.
Both legs of due process are used- first what is the right and its contours and second in what
circumstance is it restricted (procedural due process). Puttuswamy also goes into a third kind of due
process- the structural due process.
The Court has been addressed on various aspects of privacy including:
(i) Whether there is a constitutionally protected right to privacy;
(ii) If there is a constitutionally protected right, whether this has the character of an independent
fundamental right or whether it arises from within the existing guarantees of protected rights such as
life and personal liberty;
(iii) the doctrinal foundations of the claim to privacy,
(iv) the content of privacy; and
(v) the nature of the regulatory power of the state.

Are we looking at privacy as a standalone right? Sometimes its useful to look at privacy in that
manner. It is useful to look at human dignity in that manner that underlies all other fundamental
rights. The question then is how will you determine if a dignity right is invoked or not?

Looking at how privacy was argued at R. Rajgopal. When we use fundamental rights as a defense to
another person’s claim. A person was making an article 19 claim and privacy was brought in as a
defense to the article 19 right.

When you see that right to life has a dimension of right to privacy then the whole question of where
you’re locating this right; then the specific restrictions of that right are relevant.

The problem with understanding it as a natural right is that establishing their preexistence. The
problem with understanding rights as natural is the presumption that they are pre-existing. When the
court is saying that it is natural- there is a problem with that understanding as a natural right. This is
limiting the state power to take state action. However, the alternative to natural rights is the
conferred rights. But the state is not conferring rights. In a modern democratic state certain rights
are entitlements.
When we are talking about the rights in the indian context, but the courts labeling of rights as
natural rights needs to be thought about.
-next it talks about privacy as an individual right. This is contrasted from what chandrachud himself
said in the aadhar judgment where he said its not just individual but a group thing?
Individual right as privacy is a very elitist concept, thus the other facet of the privacy that is
individual in relation of his environment was taken up.
• Privacy as a natural and inalienable right
Privacy as a right to be let alone-individualism
Basic need to live with dignity
Privacy as Intrinsic to freedom and liberty
• Not an elitist construction-rejects a false dichotomy between socio economic and civil political
• The Constitutional right is placed at a pedestal which embodies both a negative and a positive
freedom. The negative freedom protects the Individual from unwanted intrusion. As a positive
freedom, it obliges the State to adopt suitable measures for protecting individual privacy
You can't be saying all fundamental rights are negative rights; and what you think is negative and
what positive is important. Negative- you are protecting individuals from intrusion of the state.
Positive is you're asking the state to do more than to just stay away but to take steps to protect
privacy.
Civil political rights don't require economic considerations but other civil political too.
21 has a negative dimension. When we talk about the question of what is a constitutional value, what
are we talking about? Difference between talking about dignity as a value and a right. Distinction
b/w value and rights is like the distinction between conception and __concepts__. (|| to the
dworkin reading)

Aharon Barak (former Chief Justice of the Supreme Court of Israel) in the following manner:

• "The constitutional value of human dignity has a central normative role. Human dignity as a
constitutional value is the factor that unites human rights into one whole. It ensures the normative
unity of human rights. This normative unity is expressed in three ways:
first, the value of human dignity serves as a normative basis for constitutional rights set out in the
constitution;
Second, when you says it serves as a basis, it serves as an interpretative principle for determining the
scope of constitutional rights, including the right to human dignity;
third, the value of human dignity has an important role in determining the proportionality of a
statute limiting a constitutional right
We want to think about how should i say that my right to equality and my right to dignity is written
off. SO individual consent is the basis. So why can an individual not consent to not having a right?
Hence the conception of the right is larger than the individual. How not giving the individual a right
influences the society is important.
The scope of a limitation is different from the scope of a right. It is useful to say that when you are
trying to understand something as a value; it's different from the understanding of the right.
In the bar dancer’s case, the state thought that it was protecting the dignity of women by prohibiting
them from carrying on their business. Is dignity involved when the state is acting in a certain way?
Does it criminalize certain activities by banning them? Have you in this was stigmatised the group?
The action of the state is actually infringing upon their dignity by enacting such a statute in an
arbitrary manner. Privacy also has all the aspects such as dignity. There are values associated with
privacy which can be located at different places under different circumstances.
State Intervention- KS Puttaswamy v. UoI (Privacy- 9 judge)
 ● The first requirement that there must be a law in existence to justify an encroachment on
privacy is an express requirement of Article 21
● Second, the requirement of a need, in terms of a legitimate state aim, ensures that the nature
and content of the law which imposes the restriction falls within the zone of reasonableness
mandated by Article 14, which is a guarantee against arbitrary state action.
● The third requirement ensures that the means which are adopted by the legislature are
proportional
The idea is that privacy is emanating from 21, arising out of other parts of fundamental rights as
well.
Article 21
The two readings deal with Dignity rights and Preventive Detention. Through this discussion,
we would find a link between the two. There is a reflection of article 14 on 21, as we have
already established- the link between equality and liberty. Not only as independent principles,
but see the connection between them. Art. 21 is the heart of all FRs- preservation of life and
the relationship between the state and the citizens, and the interaction of the citizens with the
institutions of the state. The reason why we have started with Anwar Ali is to look at
processes and procedures that are vague giving a wide discretion to the state- should have
been argued under art. 21, but was not (questions of liberty and fair process was argued in
terms of art. 14, and not 21- does not necessarily have to be answered under 21- this raises the
question of what is the significance of 21, if it could be argued under 14).
There is an evolution of the doctrine- starting off from the AK Gopalan case, it is considered
the case that rejects substantive due process and rejects the notional or nominal meaning of
the Constitution- not reading justice into the ‘procedure established by law’, or even engage
with what popular will represents in reading such procedures. The judges in different cases,
have worked with the case differently and have taken different approaches.
What is significant about art. 21 in that sense? The shift between unenumerated rights and
enumerated rights under 19 and 21- are there only such specific guarantees or are there other
dimensions to rights that are not accommodated under an equality paradigm, or non-
arbitrariness paradigm, and is there something about liberty that needs to be expanded.
Through this, art. 21 has seen the widest expansion by reading rights that have not been
explicitly read into in any other FR. Rights that are considered important enough- implicit
rights- could be read into art. 21. The interpretation does not simply revolve around the
meaning of liberty, but what is the meaning of fairness, equality- which is as much part of art.
21, as it is a part of art. 14. This separation is not possible anymore.
When is it worthwhile to locate a right under only 21, or in 21, 14 and 19? Is 21 giving
meaning to the right, or is it given meaning because of 14 and 19? This must be engaged with.
There is case law in art. 14 and art. 19 that has given rise to questions of 21- Anwar Ali,
Kharak Singh etc. Due to Gopalan, reading rights into art. 21 was not possible. We had to
wait till Maneka, to open up art. 21 to read rights into it. This highlights the importance of
reading ideas of procedural and substantive due process into the Constitution- as it opens up
the Constitution in a way that is unparalleled. By locating the entire understanding of due
process under art. 21, it is given a meaning of its own. Through this, art. 21 occupies a
position of primacy among rights. It was a truncated right until we began to locate due
process within art. 21. There was also an expansion by reading in the idea of dignity. Maneka
became a turning point in Art. 21 jurisprudence.
While art. 20, 21, 22 was set in the context of criminal justice- it was read expansively. Even
when Anwar Ali dealt with fair process, it was more about what kind of laws a state can make,
and less about the impact of the law upon persons. The difference between art. 14 and 21- is
that the stirking down of statutes under 14 and 19 has been more- 14 and 19 is focussed more
on examining whether there are implicit biases of the legislations etc., art. 21 is more about
individual liberties, looking at persons being deprived of their livelihood. Art. 21 began to
primarily acquire significance for persons under trial but Maneka dislodges the Gopalan logic
of reading rights in isolation- 21 became interpreted much more widely, and what runs
through the art. 21 cases is a particular idea of dignity. Dignity came to be articulated under
21, by giving it an idea of its own that is distinct from the other liberties.
To start with the reading- how do we make any sense of the wide set of rights under art. 21?
How does one read the rights in the context of preventive detention under art. 22- it was the
dominant context for the initial cases of reading 21 and 22. Art. 21 was then opened up by the
SC to include a range of rights. However, in dealing with PD cases, the court has taken a very
different approach (minimalistic)- highlighted by Aparna Chandra and M Satish- therefore, the
interpretation is very different. Other cases under art. 20- punitive detention such as Selvi,
custodial violence cases etc., have been read with art. 21- in a very different way as compared
to PD cases. The third set is in the context of freedoms/other rights- art. 19 as well as other
rights to carry a business or own property, right against exploitation etc., that have been read
with art. 21- both individual as well as group rights. Dignity rights need to be seen both as
individual and group rights- as an organising principle. Dignity as equality, dignity as non-
discrimination/arbitrary, capacity enhancing-self realisation, ability to mkae decisiosn, dignity
secured through special provisions. Through this, dignity links right to life and liberty to
equality and other rights.
Art. 21 in that sense, allows you to enhance one’s understanding of FRs by linking different
parts of the Constitution, and dignity becomes a way to organise these rights.
Erin Daly
- Dignities particularities- It is important to look at certain values and principles that is
fundamental to all Constitutions, not just Indian. How do we understand such a
concept of dignity that is so wide and huge? When we look at Subramaniam Swamy,
where right to reputation was read under dignity rights- by reducing dignity rights by
reading in reputation- it goes against what is valuable about dignity that it is available
to everyone. Reputation should not come at the cost of another losing their freedom
of speech and expression- thereby resulting in rights conflicting or competing with
each other, limiting the exercise of one’s rights. Aadhar- a person’s dignity rights result
in limiting the exercise of another’s rights- a problematic way of reading dignity
rights. It is curious that the Aadhar decision even addressed dignity, while knowing its
the biggest challenge.
- Dignity is both a background principle and a right that is enforceable in a definable set
of circumstances- no single unifying theory of dignity. The dignity principles are broad
and have multiple meanings- comes with a range of opportunities, and should not be
perceived as a threat. A narrow procedural due process meaning of the sufficiency of
procedure established by law would undermine dignity. We have accepted a broader
approach that enriches dignity.
- Greek Constitution- economic development but not at the expense of human dignity.
It is a far more older idea, that economic development should not be done in a way
 that harms the dignity of people. Today, in the name of ‘security of state’ one cannot
harm the human dignity rights.
- Hong Kong- even an offender, however, reprehensible his crime is, is entitled to
dignity. Dignity is a protection even in cases where popular will or public outrage goes
against it. It is a value that prevents the attempt of governments to make claims that
anything can be done in the pursuit of justice.
- Dignity rights allowed us to look at a path, that is available to even non-citizens who
are accused as a terrorist, but still able to claim dignity rights.
- It is universal, and provided by most Constitutions in the world, and therefore,
becomes significant to locate it within art. 21.
- Columbian Court: Schematizes the concept of dignity- noting that the phrase ‘human
dignity’ can manifest itself in two ways- 1) from the point of view of the concrete
value of protection (as a right) and 2) from the point of view of its normative function
(as a value). As a right, the Court has identified three clear lines in which it can be
understood:
- autonomy of deciding a life plan and self-determining according to his or her own
desires and individuation principle
- Entailing certain concrete material conditions of life
- Intangible value of physical and moral integrity.
- Preventive Detention- Chandra and Satish shows that the SC has not moved beyond
procedural due process laid out in AK Gopalan in the context of PD cases- the courts have
taken a minimalistic stance.
The following tools for decision-making are associated with minimalism:
• 1. As far as possible, declining substantive review of actions of political branches.
• 2. Deciding on narrow technical grounds rather than on broad principles. (Gopalan logic- if
Constitution provides for PD, it is valid- rather than engaging with overarching principles of
Constitutional Morality, and dignity rights)
• 3. Deciding on statutory rather than constitutional grounds, and engaging in statutory
interpretation rather than constitutional adjudication. Eg. in TADA, POTA and UAPA cases,
courts looking at only the provisions of the statute, and fails to invoke arbitrariness,
unreasonableness and the nexus between the statute and the Constitution- only sticks to the
confines of the statute.
• 4. Deciding on procedural issues rather than substantive grounds. Eg. cases in PD where the
courts have looked at the invalidity of the detention by considering whether the procedure
established in the statute was complied with- but not examining the procedure against
constitutional standards, or its impact on rights.
5. Providing strong deference to the views of the political branches on what is
constitutional,and/or leaving broader constitutional issues undecided.
• 6. Confining the decision as far as possible to the facts of the case. It fails to look at free
speech or the right in general, sticks to the particular facts of the case (similar to approach in
Anuradha Bhasin upholding the restrictions). AFSPA continues to receive constitutional
protection by confining itself to its specific facts, even though it violates most of the
substantive rights.
• 7. Giving advice rather than binding decisions, so that while the court engages in, it also
defers to the political branches in, the resolution of a constitutional dispute. Eg. Instead of
clearly saying that the internet shutdown was wrong and unconstitutional, the court gave
advice of forming an advisory board etc., in Anuradha Bhasin.
• 8. Review actions of the political branches to ensure compliance with procedures for
democratic deliberation. Instead of holding state action to be correct or wrong, it looked at
the judiciary’s role as a mediator with a strict role to decide but not to engage in a
constitutional dialogue or a discourse (unlike its adjudication in socio-economic rights).
• Minimalism is therefore an incremental, gradual, cautious, one-case-at-time approach to
judicial decision-making, which is not always wrong, in fact, on many political questions it
should have been applied instead of the court intervening in it. Eg. UCC- best left for a larger
public discussion. However, it is problematic when it is observed repeatedly in the context of
individual liberty being violated, where the court should not have taken a minimalistic
approach.
Indian Supreme Court’s Engagement
If we use dignity as an organizing principle- how does the idea of dignity get invoked in
Preventive Detention. Through talking about the fact that dignity is non-negotiable and the
fact that there ought to be restraints on state power even when it is claiming to act on behalf
of the people for’ national security’, security of the state etc. Thus, it is useful to look at PD
laws through this view. In the context of PD, Art. 21 was claimed as a power of the state
against individual liberty. The articulation in Gopalan was that whatever is prescribed by the
law under art. 22, as entitlements to persons of detention is all that the statute can provide,
and no more protection of reasonable procedure, fair trial etc.
Makhan Singh v. State of Punjab- it is significant to see how much the Judiciary can
intervene- judicial review on state actions when the constitution explicitly provided that FRs
stand suspended during the Emergency. This is the debate around due process as well, that
when due process is not present, the procedure must still exist- idea of Rule of Law.

In the question of the larger question of how to read the Fundamental Rights, whether to read them
separately or integrated, there was already a shift which was taking place in the other contexts. One
level of the shift was arguments for reading in safeguards of natural justice in the

This case looked at the suspension of Habeas Corpus Rights and the specific facts were unique
as the person and deserted the armed forces during the time of conflict and this person had been
subjected to Court Marshal and his lawyers came to the Court and said that he was denied Habeas
Corpus by the nearest HC. The court ruled in this case, that in any case where the Habeas Corpus
rights which was ordinarily available to citizens which flows from Art 21 and 32, would not be given
when an emergency declaration was in place, because of the Indo-China War at the time of the case,
but also found that the Rights which flow from Article 21 and 22 have to be read separately -
which means that the general invocation of liberty under Article 21 which is being used to
demand the right of Habeas Corpus or the right to file a writ in the nearest HC was
differentiated from the argument about Preventive Detention that sometimes state
authorities have the power to detain people without lawyers for some time, and even int his
case argument was based on the premise of Article 21 and 22 and the Court largely followed
A K Gopalan and saw them as separate as no connections between them. Due to the
emergency, the Fundamental Rights were suspended and the Court could not give Habeas
Corpus.

The rule later gets modified, but it gets modified in several other contexts, which is why there is still
confusion over whether or not AK Gopalan should be overruled or not - and when we look at is as
a lawyer, we can still say that A K Gopalan has still not been substantively overruled because
even through the Court has appreciated the theory of interrelationship they haven’t explicitly
undone the result of the case like A K Gopalan where the court did not look into the thing of
Preventive Detention. They have in fact gone ahead and upheld the provisions which deal with
Preventive Detention and we have Article 22(7) as a strong protective device.

ADM Jabalpur
In ADM Jabalpur, taking on from Makhan Singh- it could be argued that if art. 21 stands
suspended, rule of law and certain fundamental principles should continue to exist. However,
the court held that when FRs are suspended, and the entire idea of right to life is suspended,
even under criminal procedural law (CrPC). The right to life cannot be located anywhere else,
rule of law is suspended in the Emergency. Dissent of HR Khanna- as long as Constitution
exists, certain principles such as rule of law continues to exist. The basic rules of habeus
corpus, fair process etc, still exist.

This was a decision which was given at the peak of the Emergency where the Court succumbs to the
pressure of the Executive and does not interfere with the Detention Orders which had been given
all over the country.

The court was asked to look at the Preventive Detention orders which were given under the
Maintenance of Internal Security Act. So now, we are talking about the third case dealing with
Preventive Detention. There was an emergency which was imposed and the grounds which had
been invoked for declaring the emergency in June 1975 was Internal Disturbance. When the
Emergency Declaration happened, we obviously had follow up action by the Executive where
hundreds of people who had belonged to the opposition parties where taken into detention by the
various State Govts - and in many cases it was the District Magistrates who were ordering the
detention as a form of Preventive Detention and most of it were under a law called Maintenance of
Internal Security Act (NISA) - Lalu Prasad Yadav who was a student leader was detained under this
law.

There were hundreds of people who were detained and were questioned the detention in the HC
and as many as six HCs overtime actually allowed the Habeas Corpus writs and stated that the DM
had not given sufficient reasons to justify the detention under the MISA. All of these cases were
clubbed together and appealed and argued together in the case which is now reported as ADM
Jabalpur. The state was trying to defend the validity of hundreds of detentions, which had been
ordered under the MISA and these orders were ordered at the district level. The court had the
opportunity to review its’ decision in the AK Gopalan and look at the Law of Preventive Detention
meaningfully. But the court did not do so, the majority of the court agreed with the Central
Govt’s arguments for the need of Preventive Detention, and they do not get into the
challenges which are based on Fundamental Rights or to entertain the Habeas Corpus
Writs, and the majority opinion is that as the internal emergency is in place under Art 352,
the right of Habeas Corpus is not available who were detained - and the Makhan Singh had
become a good precedent to cite in their favour.
Most of us would have heard about Justice H R Khanna’s famous dissenting opinion in this case
which disagrees with the majority and questions the decisions which have been taken by the Central
Government, and Justice H R Khanna’s says that the Habeas Corpus rights which are being claimed
under Article 32 and 21 are not explicitly contained in the Fundamental Rights and even if
the FR are suspended, citizens have a set of natural rights available to them, and this
included the Habeas Corpus right. He looks at the Common Law history and points out that
even prior to the Indian Constitution, when a Habeas Corpus Write was not codified in this form,
there used to be Habeas Corpus Writs which were being filed in the HCs and the Privy Council -
and he argues that there is an argument in legal history and in legal philosophy to justify the
recognition of the Habeas Corpus rights even without the Part III Rights.

This case gives us an idea about how FR together as a group could be suspended in the time
of emergency and how the Court may refuse to entertain even basic habeas corpus writs.

This sets the stage for us to understand why the Court seems to be going in a different direction just
within a couple of years.

Haradhan Saha v. State of West Bengal- constitutionality of PD law (MISA) challenged- pet
claimed Act was unreasonable as it provided unguided power to the state- very broad and undefined
grounds for detention, and no grounds for objective assessment. Further, violated 21 as no proper
right to be heard. Third, 22(5) violated as Act did not provide just procedure, and Fourth, violated
art 14 because it permitted discrimination in how the govt chose to deal with the offence.

The court rejected the claims- held the grounds on which a person could be detained were not
vague- it was permissible to detain a person for an act which was not by itself an offense under any
penal statute. Focus of court in testing the reasonableness was to examine whether there were
sufficient procedures for the detenu to make a representation- focus on procedural reasonableness
had to be judged in the context of urgency and magnitude of the problem, underlying purpose of the
restrictions and prevailing conditions and not abstract notions. Rejected principles of natural justice
must be complied with in all procedures argument and accordingly held, as long as proper
consideration to the detenu’s representation was given- there was no abuse of discretion and
requirement of reasonableness and fairness were complied with- thus no additional duty to disclose
any evidence to the detenu. Haradhan Saha explicitly rejected the contention that principles of
natural justice had to be followed and uphled the contention that if the statute excludes them, then
the court cannot ignore the mandate of the legislature. Therefore, in this case, the court deferred to
legislative wisdom to determine the reasonableness of procedures- did not test MISA for substantive
reasonableness but limited to compliance with art. 22 restrictions (Compare and contrast with
Maneka- even though passport authority could withhold a passport- we must read in principles of
natural justice).

AK Roy-

This gives us a navigating tool for the material - in the end of the emergency in 1977, and the new
government had come into power, the hugely unpopular MISA was repealed - and while cases such
as A D M Jabalpur had upheld the validity of MISA, or not allow the filing / scrutiny of the
Habeas Corpus Petitions filed against orders under MISA.
However, in 1980, when Mrs. Gandhi returns to power, they enact another law on Preventive
Detention, which was the National Security Ordinance - this was initially promulgated and then was
replaced by the National Security Act, which is still in place and we will be familiar as how it can be
used in the present, most famously by the Uttar Pradesh Govt wherein it uses it both against critics
of the Govt, as well as cases of Cow Slaughter - misuse of the law. This was challenged in this case -
this is a Constitutional Bench Case.

The petitioners questioned the vagueness of the grounds of detention and the
reasonableness of the procedures prescribed under the Act. The MISA had been repealed but
the new law has been brought in.

The court refuses to go into the “justness” of having a law on preventive detention because
one of the arguments was that there should be no law on Preventive Detention (Court said
that the Constitution itself provides for Preventive Detention), The Court also rejected the
contention that the provisions under the Act were vague arguing that the very nature of the
harm which was sought to be prevented made it difficult to give concrete meaning to the
words used.

However, it held that when individual cases were brought before the Courts, they would construe
the terms very narrowly. The Court therefore held that the detainee did not have a right for
legal representation, right to cross examination, or even a right to public trial, which were
the demands which were being made by the petitioners, and the non-availability of these
rights did not impinge the spin the reasonableness of the procedures under the Act. The
Court upheld the validity of the National Security Act.

Bhagwati J- no right to legal representation, right to cross-examine, public trial, since the
Constitution did not mandate it nor the statute and this is did not impinge upon reasonableness of
the Act.

Then, through the process of PDs we are suspending fundamental rights in terms of legal
procedure.
History of Due Process
Granville Austin’s article is useful to understand the origins of due process.
Due process in the CA
The statement of reading 14 with 21 is invoking the due process clause, as it looks at liberty
and property together (implying 31). This is not as much about the impact on rights, or about
the state claiming an unlimited power to be a totalitarian state. It is claiming this power to
allow democracy to flourish. This shows the difference between intention and impact- here, if
we move to the question of impact on FR- then we see it is impacting FRs, then how is it
justified, notwithstanding its intention? If we argue that the history of the due process clause
in the Indian Constitution- in the original intent meant a narrow view- enhancing the power
of the state to detain people- then it can be substantiated. However, this reflects a colonial
heritage. The extent to which we are expanding PD law in terms of intention of the state
which ought to be upheld as it is intending to protect the public, but when we look at its
impact on FRs, it's a complicated story. The reason why we looked at purposive interpretation
was that it was very categoric. In the Privacy decision, Chandrachud says privacy always
existed as dignity was present- to show no conflict between original intent and the
interpretation is in line with it. However, the original intent of due process cannot be used, as
it allowed the impact of PD laws to trample upon FRs. Therefore, one cannot harmonize
original intent with the interpretation, and original intent must be trumped to reflect the
present interpretation. To satisfy both sets of people who supported and were against due
process- it dropped due process in PD laws, but applied it in other contexts. The principles of
the Constitution (for ex. Pith and substance) should not be located just within its context.
When we read the reading of due process in art. 22- some specific aspects are present such as
right to counsel etc. The Hardharan Saha is an interesting case in the way it reads art. 22 as a
charter, and strikes down any legislation that is going against the safeguards laid out in art. 22.
The conferral of power is also in a way that reflects the due process principle. By saying that
the legislature would determine the way in which PD laws would be construed through
Advisory Board etc., it must be confined within the constraints of art. 22.
There is an argument that by claiming judicial review, we are going against the orgiinal
intetnion of the drafters.

The History of Due Process in India

- Due Process in the CA When the Fundamental Rights subcommittee took up the question of due
process it voted to include the clause in its classic form-which is protecting both property and life. If
we cant put mischief makers in jail there would be no end to communal disorders. To fetter the
discretion of the legislature would lead to anarchy.
• The supporters of due process including Ambedkar and Munshi was that due process prevented
legislative extravagance
• The due process clause was largely concerned with how the land and land rights were to be given
effect to. When it was eliminated for property it was also not applied to liberty. Ultimately the story
of due process was the story of preventive detention.

The opening up of 21 by bringing in the idea of 21, is opening all FRs to a very different kind of
interpretation. Although we wanted to reject the vaguer idea of due process, we did include elements
of due process in 20, 21, 22- ‘procedure established by law’, proc under 32-etc. By rejecting due
process, the framers intended to reject the broad idea of due process in social welfare legislation and
not due process in its entirety, but it still applied in specific ways- they believed that the liberties
must be tied in with the larger social good. If we see Gopalan and contrast it with the other property
cases in the same way.

The Indian SC in Gopalan by holding that law meant any law passed by parliament was giving effect
to the framer's intention that legislative dignity should be upheld. But in the same year in the
Kameswar Singh vs State of Bihar case the SC read in aspects of just compensation evidently
derived from due process into a.31 although legislative intent not to pay "just" compensation and in
fact to pay only any compensation or rather any amount that the legislature though fit was evidently
the intention of the framers when they dropped due process from the property clause.

One of the meanings of dignity is giving legislature its proper place- the wishes of the people as
representatives of the parliament must be accepted and upholds legislative dignity- AK Gopalan.
There is still in a sense, a semblance of due process with the deference to the Parliament.
‘Personal liberty’ is interpreted in a much more wider and expansive way in the context of property
rights, but a very narrow view was taken in the context of PD laws. The difference between property
cases and PD cases are therefore, very clear.

Fair Trial- here, in other crimes as well, we see the court taking a broader view than when compared
to PD- Eg. Selvi. In Selvi, the court explicitly states that we do not have the entire gamut of due
process in the Constitution, but after RC Cooper and Maneka- the consequence is the same.
Several rights associated with fair trial such as no arrest without warrant secrecy of correspondence,
no search and seizures- all of these are due process clauses.

This history also points to the all pervasiveness of the due process clause throughout the text of the
FR's from equal protection to life and liberty.

True, our Constitution has no due process' clause or the Vill Amendment; but, in this branch of law,
after Cooper and Maneka Gandhi the consequence is the same. For what is punitively outrageous,
scandalizingly unusual or cruel and rehabilitatively counter-productive, is unarguably unreasonable
and arbitrary and is shot down by Article 14 and 19 and if inflicted with procedural unfairness, falls
foul of Article 21. (Selvi, 2010). Selvi builds upon the Nandini Satpathy case (celebrated case wrt a
CM of Odisha who was in custody of the police during Emergency- whether persons in the custody
of the case but not accused, can claim a right to remain silent- -the court held that the protections
are not being confined to persons accused of crimes, but others as well). Therefore, reading 20 (only
available to persons accused to crimes) with 21 (available to all)- we are extending the protections to
all persons- rare case of reading 20 with 21. This exemplifies that Gopalan logic stands overruled- as
it would confine 20 to only persons who are accused. Through this, we are able to lay out general
principles available to everyone.

Selvi v. State of Karnataka

• Since A.20(3) only applies to persons accused of crimes, the court went further to examine
whether the right under A.21 is violated when other persons are compelled to testify.
• In order to account for these possibilities, we must examine whether the involuntary
administration of any of these tests is compatible with the constitutional guarantee of substantive
due process'.

The theory of interrelationship of rights mandates that the right against self-incrimination should
also be read as a component of personal liberty' under Article 21.

In Selvi, this paragraph from Nandani Satpathy v. PL Dani was cited:

Any giving of evidence, any furnishing of information, if likely to have an incriminating impact,
answers the description of being a witness against oneself. Not being limited to the forensic stage by
express words in Article 20(3), we have to construe the expression to apply to every stage where
furnishing of information and collection of materials takes place. That is to say, even the
investigation at the police level is embraced by Article 20(3).This is precisely what Section 161(2)
means. That sub-section relates to oral examination by police officers and grants immunity at that
stage. Briefly, the Constitution and the Code are coterminus in the protective area. While the code
may be changed, the Constitution is more enduring. Therefore, we have to base our conclusion not
merely upon Section 161(2) but on the more fundamental protection, although equal in ambit,
contained in Article 20(3)."

Here, the court held that irrespective of s. 161 CrPC- we have to base our conclusion from the
meaning of 20 (3).

Therefore, the right against self incrimination extends to all persons.

The discussion in Puttaswamy regarding how to locate privacy rights and how we see the interaction
between 19 and 21. Shreya Singhal: due process, also a part of 21. All of these are also a part of
Article 21. In Shreya Singhal we said that the test of arbitrariness is also a part of the bundle of
concepts under due process. The link between 14 and 21 gets established through due process. The
Indian SC locates due process in article 14 and then links it to 21. Procedure established by law is
not just any procedure, but it has to be a fair process as under 14. The due process understanding is
emanating from reading 14 under 21.
The Abhinav Chandrachud reading in Oxford Handbook: basically what she taught in the first class:
so read that. Why was the due process clause dropped? How is the Indian version of due process
different? Answers all of these questions.

Due Process
Once due process comes into the constitution, it will come in at different places. It has
already come in at 14 and 19. How do we say that Article 22 will be read in a manner without
giving meaning to due process? If we look at recent orders on PD, the court is carrying out
the minimalist approach by looking at the statute. It is saying that in case of 22, due process is
not important.
Abhinav Chandrachud: there are three forms of due process (pure form, procedural,
substantive), and now even the fourth form, structural due process. Structural due process
came in with the Aadhar decision ( delivery of social welfare benefits must be effective and
timely & the design of the project will be compliant with structural due process only if it is
responsive to deficiencies, accountable to the beneficiaries and places the burden of ensuring
that the benefits reach the marginalised on the state and its agencies.), which was not about
individual liberty, discrimination, violating equal protection, etc. it was about whether state
can demand identification from people before it can give social welfare schemes. If we go
back to the original intent behind not having due process, it was mainly about not letting the
court hamper the land-reform programmes of the government and not so much individual
liberty. We have never articulated due process in terms of group rights. Didn't want an
interventionist judiciary. Once we bring in due process in the constitution, you can’t say that it
should stay restricted to certain provisions of the constitution.
Abhinav says that Gopalan is also due process: the understanding of Gopalan’s due process is
whether the process has been established by the legislature, established by law; the assumption
is that the there has been deliberation and weighing of pros and cons, that there has been
application of mind by an authority that is competent to that by law: this is the pure form of
due process.

4” and 15'' amendment of the Constitution of the US

• No person may be deprived of life, liberty or property without due process of law
• 3 forms-pure form, procedural and substantive-and now structural
The majority in Goplan held that A 21 was both substantive as well as procedural in its
content. What do you mean by substantive in this context and how does gopalan talk about
substantive content? The procedural part deals with the safeguards which have been put in
place under 22 for going ahead with preventive detention. But what is the substantive part
that Abhinav is talking about? Even though it takes a substantive understanding regarding the
right to life, it is taking a narrow approach by saying that your right to life does not prevent
you from being preventively detained.
Hence Does Maneka undo Gopalan? It doesn’t, you clearly look at the rights, the entire
discussion on concentric circles.

"Thus, no person can be deprived of his right to go abroad unless there is a law made by the
State prescribing the procedure for so depriving him and the deprivation is effected strictly in
accordance with such procedure.” If the understanding of this statement is that - a) there is a
right and b) there is a right to procedure, then in that way Maneka does look at the
substantive understanding. When we talk about the competence of legislature in terms of
legitimacy, we are engaging with it substantively..

Bacchan Singh-
• Secondly, it is argued, the seven-Judge decision of this Court in Maneka Gandhi) has given a
new interpretative dimension to the provisions of Articles 21, 19 and 14 and their
interrelationship, and according to this new interpretation every law of punitive detention
both in its procedural and substantive aspects must pass the test of all the three Articles
• Sunil Batra deals with rights in a substantive way
Bachhan Singh deals with the constitutional validity of death penalty. In this case, the question
was: does the court have the jurisdiction to hold death penalty unconstitutional? What is the
constitutional argument as to why death penalty will be violative of article 21? What would be
the procedural question? How do you decide when death penalty is to be given? The whole
point of coming to rarest of rare is very problematic, it becomes very arbitrary, so the very
procedure for coming to death penalty is arbitrary. On that grounds, we can say that there is
no procedural due process. On the other hand, when we look at the dignity question, whether
the state has the legitimacy to take away life, we are engaging with substantive due process.
That is the significance of 21 in contrast with the Article 19 question, because life and article
21 is placed at a higher pedestal. Why do you say that the right to life cannot be curtailed
during an emergency? Article 21 talks about the fact that on occasion, you cannot talk about
absolute rights. When you say that there is a right even during the emergency, what is the
scope of the right? Does it mean that it cannot be restricted even when they are committing
wrongs? Absolutely not. This takes us to the question of procedure. There is a right, now
what kind of procedure can the state establish
Different tangent= The question is: do you have an absolute right of an individual to take a
well-informed decision of not wanting to live?
Talks about the Maternal state reading and quotes, “To return to our hypothetical example
above, if in furtherance of the legislative policy of curbing religious violence, and its strategy
of banning the practice of religion in public to meet this end, the Legislature enacts a
provision criminalizing the act of publicly referring to God, the Court will hold the provision
reasonable because it furthers the legislative purpose. The Court will only examine whether
there are enough safeguards to ensure that no one is wrongly accused of publicly referring to
God, for example, by looking at the kind of evidence required..”
In such security related cases, the court is assuming the validity of the statute.

Chandrachud hypothetical:

Substantive and Procedural Due Process:

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

The substantive question is, whether there is a right that is being involved here. There is the right to
life and personal liberty that is being taken away here. The procedural question talks about the
manner in which the right is going to be taken away. If we change the context to PD laws, and
banning organizations that are preventively detained- in this case, the procedural and substantive
questions are so linked, because the manner in which your right is taken away is as problematic as
whether or not your right can be taken away in the first place. The two things are so closely related.
Procedural questions- should there be serving of notice before ban etc.,

The problem is that the procedural questions are coming in before the substantive questions are
being asked, no one is asking about the rights and whether the state can legitimately take away the
right. You straight away go to procedural questions.

Cases with clear substantive due process implications

Saroj Rani- restitution of conjugal rights

Rathinam- right to suicide
Naz- dealt extensively with the substantive aspect of due process.

• "modern" substantive due process and unenumerated rights

• However there is a lack of definition

• Substantive due process as a constitutional law 'test' under which a law has to be 'just, fair
and reasonable', which involves questions of 'legitimate State interest' and ‘the principle of
proportionality’ (Suresh Koushal). Although this case overrules Naz, it uses substantive due
process to reach a narrow outcome.

Your focus should be on ‘due process’ and not on substantive or procedural due process in
specific.

Aishat Shifa
We must appreciate the locating of cases within several rights. Only aspects that are relevant-
locating the right under art. 19. In this case, instead of taking the debate to 25, they have
attempted to locate it in 19. In Sabrimala, while 14, 15 were argued- the judgment was on 25.
It is expected that the Hijab case would be a restatement of the law on religion in India.
Impact of Art. 19 in a question like this.
The first question we look at is the approach. How do we pick the correct test to apply? This
discretion is very relevant, as the minute we say there are choices, we pick up a test that is
most suited to the case before the bench. When we look at judicial interpretation adjudges
engaging in public reasoning, if they are careful, they explain why the test is chosen (write in
this way in the exam).

Aishaf Shifa v. State of Karnataka

Government order directing government schools and directing private schools to
mandate a uniform.
Since it is an executive order, the most relevant doctrine to be used is arbitrariness. The other
reasons why arbitrariness would be relevant. The court holds that the Bijoe Emmanuel Case is
the best precedent to follow. In the context of arbitrariness, the most recent and relevant
precedent is Shayara Bano, where there was also a minority community making an explicit
claim in the context of religious freedoms- and the decision was given in terms of arbitrariness
(The minority opinion locates it in personal law). This case also could have been chosen- the
road not taken.
If we look at Kharak Singh- where the court made a distinction between a law and a
regulation.
Can we continue to make the distinction between something that is a statute and an executive
order. This distinction is important since the roles of the executive and legislature must be
distinguished in a parliamentary democracy, and as per Constitutional Morality- legislature is a
deliberative body, and the executive cannot substitute legislature. Thus, since it is an executive
order it must be subjected to heightened scrutiny, as it is not coming from the legislature, and
the question of legislative wisdom does not arise. Therefore, the distinction between statute
and exec order is very important to be upheld.
If we tie the Hijab case to minimalism, we could have decided the case not even on
expression, choices, freedom of life and personal liberty- we could decide the question on the
narrowest grounds possible. Minimalism in this case, the court could have simply held that the
regulation is not in line with the object of the legislation, the object being the promotion of
education. Minimalism here, could be a useful approach as the govt order is violating a
Fundamental Right, and it would be struck down without looking at 19(2). A heightened
review or scrutiny could have answered the question before looking at the restrictions etc.

The judgment starts off with Hemant Gupta’s discussion on secularism. He gets into a
discussion on the distinction between the Hindi version of the Constitution v. the English
version. The Hindi version translates into sectarian non-discrimination rather than religious
non-discrimination- which is talking about freedom within religion (sects within religion), and
the diversity amongst sects must be respected. Then, he gets to the point that secularism is
uniformity. The other judge, Sudhanshu Dhulia relies on Bijoe Emmanuel.
Why should FRs not be understood in terms of rights between citizens- horizontal rights?
The idea of creating a State with a concentration of power (removing power from the private
space and giving it to the state) is the philosophical basis. In India, we were attempting a very
clear distinction between private and public sphere, and nobody imagined equality to be
equality within the family (private spaces), and this is why we passed Hindu Code Bills, and
continue with ‘religious freedoms’. This is a faultline that we have discussed regarding the
understanding of why personal law is not law. Rights being only available in particular sphere,
not applicable in the private sphere in India (no law prohibits a private employer from
discriminating on caste, gender or religion). The govt order directed government schools and
directed private schools (using the power of making special provisions for education in the
private sphere as well) to mandate a uniform. There is also a question of creating a College
Development Committee (state instrumentality under art. 12?- statutory basis, functionality
question- however, control aspect is not there). In this context, the question of 29, 30 rights
are also important, as there are private and public, private unaided or aided institutions come
up, and whether private schools can impose uniforms and violate FRs and whether FRs can
be enforceable against it.

Context
(no problem with this aspect- well intentioned)
“In the event that the management does not mandate a uniform, students should wear clothes
that are in the interests of unity, equality and public order.” What is the relationship between
public order and people’s clothing? There is no proximate connection.

Under 19 (2), the permissible restrictions that would apply here are ‘public order’, ‘security of
state’, and if we use the kind of due process interpretation in Art. 22 (existence of a well-
intentioned objective and falls within restrictions), then the court would hold that there is no
need to interfere and uphold the executive order.

There were 10 issues framed, the relevant ones-

Delegates an essential state function to a non-statutory authority such as the CDC
Freedom of expression under 19 (1) (a) and privacy under 21 are mutually exclusive (Gopalan
is still very much alive in this sense, disses on the way of framing it, should be a non-
question)- Govt order is not reasonable under 14 and 21.
GO is not true to the objective of the Karnataka Education Act (minimalistic approach like
this is preferable- the GO is ultra vires as it does not fit with the primary purpose of the
KEA.
Hemant Gupta J
-Quoting Santhanam
• The social revolution meant 'to get (India) out of the medievalism based on birth, religion, custom,
and community and reconstruct her social structure on modern foundations of law, individual
merit,and secular education-
- Referred to Constitutent Assembly debate (why do we go back to the CA Debates? The
whole business of art. 21 being subject to legislative power is in the context of social
revolution- while, it continues to be a need in modern India- we need to look at what kind of
social reform) While there is a broader social agenda of the Constitution, it cannot be
justified when the impact of the reform is to negate fundamental rights. The impact on
regulation of religious freedom cannot infringe FRs. However, Gupta J is quoting this to
show how the social revolution brings in equality.

the principle of reasonable accommodation has been adopted by the Courts in our country, such
contention does not arise in the present case. Constitutional goals such as secularism, fraternity,
dignity mean equality for all, preference to none. The accommodation sought is contrary to spirit of
Article 14 as it would result in different treatment of students in secular schools who may be following
varied religions beliefs-

Principle of reasonable accommodation in Bijoe Emmanuel: when an individual asks an authority to

make an accommodation, the burden is on the authority to show that it would cause undue hardship
to accommodate the request. It is considered a path of understanding and tolerance.
But the court says that the accommodation sought in this case is against the spirit of Article
14, the right to dignity, etc.
Gupta says that Bijoe Emmanual is not applicable in this case. Emmual said that Article 25 recognizes
the principle that the real test of a true democracy is the ability of even an insignificant minority to
find its identity under the country’s constitution.
21A not available as they are above 14
Bijoe Emmanuel v. State of Kerala
Controversial decision- not singing the national anthem
• "Article 25 is an article of faith in the Constitution, incorporated in recognition of the principle that
the real test of a true democracy is the ability of even an insignificant minority to find its identity under
the country's Constitution."
It does not tie Art. 25 to the question of ERP. Art. 25 should not mean essentiality, and talks
about 25 in a very different way. Bijoe Emmanual- the reason why we have religious freedoms
is not to create a special sphere, but to make it possible to talk about religion in a democracy,
and this is the true test of religious freedoms and not essentiality.
• Barnetta referred to the famous dilemma of Abraham Lincoln which was "Must a government of
necessity be too strong for the liberties of its people, or too weak to maintain its own existence?"

• Justice Jackson then said:

• "It may be doubted whether Mr. Lincoln would have thought that the strength of government to
maintain itself would be impressively vindicated by our confirming power of the state to expel a
handful of children from school..."

Should the State be so strong that the people’s liberties become weak? In the context of this
dilemma the court quotes Justice Jackson-

Sudhanshu Dhulia
But discipline not at the cost of freedom, not at the cost of dignity. Asking a pre university
schoolgirl to take off her hijab at her school gate, is an invasion on her privacy and dignity. It
is clearly violative of the Fundamental Right given to her under Article 19(1)(a) and 21 of the
Constitution of India.
Uses the test in Bachan Singh (talks about substantive due process and whether it has been
incorporated in the Indian Constitution after Maneka- Does the law deal with FR under 19 (1)
in its pith and substance (legislation on education and not 19(1)- Gopalan logic of tracing the
legislation to the right directly), and under direct and inevitable test (ONLY consequence of
the legislation). It was argued here that there was no direct and inevitable infringement of the
right under 19, and hence, 19 (1) does not even get involved. (Sidenote- Simultaneously, direct
and inevitable test developed into directness test- does not look into the impact being the
ONLY possible impact, in contrast to direct and inevitable)
The question the court would therefore put before itself is whether we are making the life of a
girl child any better by denying her education for wearing a hijab, and not 19.
If there is any principle of the Constitution that imperatively calls for attachment than any
other it is the principle of free thought- not free thought for those who agree with us but
freedom for the thought that we hate-”dissent in the US Case)- do competing rights
necessarily mean one right is prioritized over the other, but can both be understood in light of
a single value.
Dhulia J held that the order compelling a school going girl to take off her hijab is a violation
of her privacy. This right to her dignity and her privacy she carries in her person, even inside
her school gate or when she is in her classroom. It is still her Fundamental Right, not a
“derivative right” as was described by the Karnatak High Court.

Article 25
The Distinctiveness of Indian Secularism
The reason why we are doing Art. 25- it is a question of religious freedom that directly
involves art. 19 (Hijab ban)
The distinctiveness of Indian Secularism- we look at the Constitution as a set of values, and
there are certain concepts associated with values that are important. In a question of Hijab,
when there is a claim made, and we raise the aspect of secularism- secularism can mean many
things, but it cannot mean any thing. How do we understand this idea of secularism having
multiple meanings?
How do we see this part of the Constitution in relation to what we have done earlier? From
21, we have a group of rights that have been conferred on political religious, linguistic,
regional minorities. How is this idea of a minority right to be understood in the context of a
broad universal right we have understood so far? How does one take this argument of
substantive equality as we start reading 25, 26, 29, 30. Any specific group can have rights that
the others do not have, and this does not mean inequality since we here focus on the object
and purpose of the provision. We look at the need for such a provision and how it fits in with
the values of the Constitution.
Why is the context of the Constitution relevant for secularism? Why was secularism not
initially put in the Constitution? If it was not inserted by the CA drafters, can it now be taken
out of the Constitution?
It is so tied in with the other FRs that if we drop the word it would not make any significance,
as it is enshrined with the values of the Constitution. Post our discussion on dignity and
privacy, we can see that the right must not be necessarily enumerated in the Constitution.
Secularism is one such aspect like the Rule of Law, the idea of rights, privacy, judicial review-
that is present in the values of the Constitution.
The critique of Secularism
There are many critiques of secularism. It is an ‘overworked’ concept. We are trying to do too
many things and many things are rooted in secularism.
There is no distinct meaning of secularism, and it has long faced an internal threat in the sense
that the conceptual and normative structure of secularism is itself terribly flawed. Similarly, if
we consider the basic structure of the Constitution- then there are many pitfalls to it as the
‘basic’ structure is not defined. However, if we want to go with a fixed meaning, it narrows
down the possible interpretations and therefore, we do not keep pre-defined limitations and
we attempt to understand it through its core. Ideas of secularism are not just being confined
to Fundamental Rights, they are being invoked in other parts of the Constitution as well. If
we look at SR Bommai, it is a case where Secularism gets invoked with Art. 356.
In different ways, Partha Chatterjee argues that secularism is linked to a flawed idea of
modernisation. In essence, what secularism is doing is attempting to bring about rationality in
all aspects of public life, however, lives are not necessarily conforming to reasonableness. It is
linked to a mistaken view of rationality. Are we overstretching these ideas to areas where it
has no place?
It poses an impractical demand that religion be eliminated from public life in India that is
impossible.
To an insufficient appreciation of the importance of communities in the life of people and a
wholly exaggerated sense of a positive character of the modern state.

Distinctive rather than different

Bhargava talks about Indian Constitutional provisions of secularism as distinctive and not
different from the rest of the world- there is a lot that adds to it, since there is a complex and
deep understanding of what the requirements are. However, despite such a despite
understanding, there are multiple flaws that have been adopted. The addition of the word
Secularism is not adding anything of value, as the values were already embedded in the
Constitution. It is not just 21, 14, it means many things. We do not adopt the Western model
of secularism, but we have our own understanding of secularism. While the Constitution has
adopted several aspects from different constitutions, it has understood it in its own way, with
its own context- same thing done with secularism. The criticism of it being a ‘Western’ idea
that was not present at the time of the Constitution does not hold true. While we cannot say
that these ideas are completely original since they have been borrowed, but it is distinctive in
the Indian context. The ideas of multiculturalism as well, was implicit in the structure of the
Indian Constitution- with our own understanding of accommodating differences.
Indian secularism did not erect a strict wall of separation like the Western notions but
proposed instead a ‘principled distance’ between religion and state. In terms of secularism we
did not want such a strict wall, as it would bind the state from proceeding with its reform
agenda with the Hindu Code Bill etc. (respectful transformation of religion), as we cannot
have a democratic identity without recognising religious freedoms. Instead of a wall of
separation, we have a ‘principled distance’.
Principled distance is premised on the idea that a state that has secular ends and that is
institutionally separated from the church or a church-like entity, must engage at the level of
law and policy. This engagement must flow from the principles underlying the secular state
and its values. It draws from Dworkin’s conception of ‘treating everyone as equals’-
essentially, equal protection of laws, where for the promotion of one value of the secular state,
a particular religion might need more interference than the others, depending on its historical
and social conditions. This may be positive- protection of religious minorities or negative-
abolition of untouchability. For example, suppose that the value to be advanced is social
equality. This requires in part undermining caste hierarchies. If this is the aim of the state,
then it may be required of the state that it interferes in caste-ridden Hinduism much more
than say Islam or Christianity. Must ensure is that the relationship between the state and
religions is guided by non-sectarian motives consistent with some values and principles.
Moreover, by balancing the claims of individuals and religious communities, it never intended
a bludgeoning privatization of religion. When we are talking about religious freedoms, do we
consider individual freedom or freedom of certain views? Intra-religious freedom was also a
very important aspect in the freedom movement. There is also a freedom from religion with
freedom of religion- and we have both of them. This poses a complex understanding of
secularism.
It also embodies a model of contextual moral reasoning. Contextual secularism is contextual
not only because it captures the idea that the precise form and content of secularism will vary
from context to context and from place to place but also that it embodies a certain model of
contextual moral reasoning. This it must do because of its character as a multi-value doctrine.
By explicitly accepting that secularism is a multi-value doctrine, we recognize that its
constitutive values do not always sit easily with one another. On the contrary, they are
frequently in conflict. Some degree of internal discord and therefore a fair amount of
instability is an integral part of secularism. For this reason, it forever requires fresh
interpretations, contextual judgments and attempts at reconciliation and compromise.
This contextual secularism recognizes that the conflict between individual rights and group
rights or between claims of equality and liberty or between claims of liberty and the
satisfaction of basic needs cannot always be adjudicated by a recourse to some general and
abstract principle. Rather they can only be settled case by case and may require a fine
balancing of competing claims. The eventual outcome may not be wholly satisfactory to either
but still be reasonably satisfactory to both. Multi-value doctrines such as secularism encourage
accommodation – not the giving up of one value for the sake of another but rather their
reconciliation and possible harmonization i.e. to make each work without changing the basic
content of apparently incompatible concepts and values
“All these features combine to form what I call a contextual secularism remain screened off
from the understanding of these critics. There is a conceptual framework of secularism with a
set of associated values, and in different contexts, certain values would be foregrounded in
place of the other. We may see secularism as a part of individual liberty, privacy, dignity etc in
certain circumstances. The fact that we have more than one meaning does not mean that
there is no coherent meaning to the word secularism.“

What is the core content of Secularism

Here, the idea of rejecting the binary of secularism meaning the same in its Western form is
rejected. How do we talk about historicity by necessarily saying its Indian or not Indian? We
say that secularism is modern and Indian, and it is evolving with the living document i.e., the
Constitution. There is a core of separation that is common across the word, which means a
separation of organized religion from organized political power inspired by a particular set of
values. It is not just the separation that is important for us, but the values associated with the
separation.

Is there a doctrine of secularism with a fixed content? A mechanical separation from church
or substantive values? It is not a doctrine, as much as a concept or an idea- that has to be
worked with to develop other tests of identity etc. There is no fixed content of separation
with a 2-pronged or a 3-pronged test. It is much more of a value, rather than a specific
doctrine. This is because we do not want it to have a fixed content, to account for the
multiple meanings of secularism.

Need for a historic account. Do we need it all? In India, we share a history of oppression in
the name of religion- not only between religions (mass killing of Buddhists) but within
religions as well. This oppression in the name of religion is common across the word. To
prevent this kind of an oppression is the motivation for secularism and in this sense, it is
common across the world, while being context-specific.
The freedom of the individual from the community, the whole idea of HRs and ability of
individuals to choose to overcome the dogma associated with religion. In these two contexts,
we need to have a distinctive understanding of secularism in India.
Content of its distinctiveness

Indian secularism can be distinguished from other versions of it. The non-interference
principle cannot be the only meaning of secularism.

He argues that Indian secularism is distinguished from other versions by five features.

• First, its explicit multi-value character.

• Second, the idea of principled distance that is poles apart from one-sided exclusión, mutual
exclusion and strict neutrality.

• Third, its commitment to a different model of moral reasoning that is highly contextual and
opens up the possibility of multiple secularisms, of different societies working out their own
secularisms.

• Fourth, it uniquely combines an active hostility to some aspects of religion with an equally
active respect for its other dimensions.

• Finally, it is the only secularism that we know that attends simultaneously to issues of intra-
religious oppression and inter-religious domination.