SYMBIOSIS LAW SCHOOL, NOIDA EXTENSION LECTURES BY PROFESSOR PARMANAND SINGH JULY 23-28, 2012 LECTURE OUTLINES (The

idea behind giving the outline of each lecture is to enable the students to go through the outline beforehand so that they fully understand the detailed lectures and discussions that follow) LECTURE I RIGHT TO EQUALITY Articles 14-18 embody the ideas of both negative and positive equality (formal equality and substantive equality). The framers of the Constitution were aware of the existing social inequalities in India due discriminatory social structure and they wanted the Indian State to take positive measures to promote equality in positive sense. (Articles 15, 16, 17 and 18). ARTICLE 14 is couched in negative language. The expression equality before the law is based upon Dicean concept of Rule of Law which means absence of any privilege in favour of any individual. Every person, whatever is his rank or position, is subject to the jurisdiction of ordinary courts. The second expression equal protection of laws, is based on Fourteenth amendment of the American Constitution. Equal Protection of laws means guarantee of equal laws. Article 14 uses two expressions to make the concept of equal protection a binding principle of State action. The underlying principle is that persons equally circumstanced should be treated equally while unequals must be treated differently. Like should be treated alike. DOCTRINE OF REASONABLE CLASSIFICATION AND PRINCIPLE OF NONARBITRARINESS Article 14 forbids class legislation but does not prohibit legislative classification Test for valid classification. Nexus test Classification must be reasonable. Two conditions of nexus test Classification should be founded on intelligible differentia which distinguishes the persons or things that are grouped together from others left out of the group The differentia must have a rational relation to the object sought to be achieved by the legislation in question.

EXAMPLES

Javed v State of Haryana (2003), (classification based upon number of children for being qualified to an elective office in a Panchayat. A law disqualifying a person having more than two children from being elected upheld as a reasonable classification) Ajai Hasia v Khalid Mujib( 1981),( allocation of more than 15% marks for oral interview struck down as arbitrary) Mithu v State of Punjab (1983) ( section 303 0f IPC providing for mandatory death sentence to life convicts who commit murder during life sentence held to be violative of Article 14) Air India v Nargesh Meerza(1981) ( a service rule that an air hostess shall retire upon attaining the age of 35 or on marriage within 4 years of service or on first pregnancy which ever occur earlier, was held to be arbitrary for lack of guidance of executive discretion)

PRINCIPLES If legislation itself makes the classification, it will be invalid if the reasonable classification test is not satisfied. If legislation confers discretion to administrative authorities the legislation will be valid if it provides sufficient guidelines for the exercise of discretion by the executive. In such a situation the policy or guidelines can be gathered from the Preamble or surrounding circumstances. If the executive abuses its discretion, the executive action will be struck down as the Supreme Court had struck down the allotment of government accommodation or petrol pumps by Ministers from their discretionary quota as the Ministers action suffered from arbitrariness.

PROCEDURAL INEQUALITY State of West Bengal v Anwar Ali Sarkar (1952), (s 5(1) of WB Special Courts Act conferred power to the government to classify offences, classes of offences, cases, classes of cases to be tried by special criminal courts. The Preamble of the Act stated: To provide for speedier trial of certain offences. Section 5(1) was invalidated because it conferred arbitrary powers on the government to classify offences..at its pleasure and the Act did not lay down any policy or guidelines for exercise of executive discretion Kathi Ranning Rawat v State of Saurashtra (1952),: ( s 11 of Saurashtra State Public Safety Measures Ordinance was similar to s 5(1) of Bengal Act. The Preamble stated: Need to provide for public safety, maintenance of public order, preservation of peace and tranquility. S 11was upheld as the preamble afforded sufficient guidance for making classification and exercising discretion. Magan Lal Chhagan Lal v Municipal Corporation, Greater Bombay (1974) (the law conferred power on authorities to initiate speedy eviction proceedings against unauthorized occupants of government and corporation premises. The preamble stated Speedy eviction of unauthorized occupation of government and corporation premises.

The law was upheld as making valid classification and providing sufficient guidelines to the executive for exercising discretion Vice of discrimination consists in unguided and unrestricted power of singling out for different treatment one among a class of persons who are similarly situated. EXPANDING HORIZON OF EQUALITY Justice P N Bhagwati in E. P Royappa v State of Tamil Nadu (1974) observed : Equality is a dynamic concept with many aspects and dimensions and it cannot be cribbed, cabined and confined within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14 UNDERLYING PRINCIPLE The importance of doctrine of reasonable classification must be examined in the light of principle of non-arbitrariness stated above. Article 14 strikes at arbitrariness in State Action because an arbitrary action will be negation of equality. The present position is that Article 14 is no longer equated with doctrine of reasonable classification. Article 14 is primarily a guarantee against arbitrariness i n State Action and the doctrine of reasonable classification has been evolved only as a subsidiary rule for testing whether a particular state action is arbitrary or not. If a law is arbitrary or irrational it would be hit by Article 14. LECTURE II EQUALITY AND THE POLICY OF RESERVATIONS (Articles 15(4), 15(5),16(4),16(4-A) (4-B) 340,366(24)& (25) Article 15(4) was added by First Amendment in 1951 as a result of State of Madras v Champakam Dorairajan(1951). The concept of socially and educationally backward classes in Article 15(4) was explained by the Supreme Court in Balaji v State of Mysore(1963) . Balaji held that caste cannot be the sole determinant of social and educational backwardness. Backwardness should be both social and educational. Social backwardness should be measured by multiple tests such as occupation, poverty, place of habitation along with caste. The Court also held that Articles 15(4) and 16(4) are exceptions to equality clause and therefore reservations should always be below 50% so that sufficient seats are left for open competition. The principles laid down in Balaji were followed even in reservations under Article16 (4). In Indra Sawhney v Union of India (1993) a nine judge bench of the Supreme Court reviewed all previous cases and delivered a land mark judgment on reservation policy. The developments from Indra Sawhney (1993) to Ashok Thakur (2007) is given below. FROM INDRA SAWHNEY (MANDAL COMMISSION CASE) TO ASHOK KUMAR THAKUR

The reservations for the SC and ST have never been a source intense social conflicts and court cases or political stalemate. The Supreme Court has taken a consistent view that there is a firm constitutional commitment for the economic betterment of these lowest social categories. The Other Backward Classes (OBC) is no where defined in the Constitution and the vagueness of constitutional promises to these categories has led to unending litigation, political manipulation and violent disturbances. The reservation policies for OBC have been subjected to close judicial scrutiny ever since the famous case of Balaji. In Indra Sawhney v. Union of India1 (hereafter as Mandal) a nine judge bench of the Supreme Court examined the validity of the government order reserving 27 per cent jobs for socially and educationally backward classes in government services. The Courts majority upheld the government order provided the well-off from among the backward classes were excluded from the benefits of job reservation. The court found an integral connection between caste, occupation, poverty and social backwardness and held that caste could be used to identify a backward class because caste was quite often a social class in India. However caste could not be the sole criterion for designation of backward classes. The accent of Article 16(4) was on social backwardness rather on educational backwardness. Most significantly the Court asserted that the creamy layer among the backward classes should be excluded from the benefits of job reservation. Mandal though did not involve job reservations for the SC and ST, its ruling had adversely affected the interests of these classes. In Mandal the eight out of nine judges2 held that Article 16 (4) does not permit reservations in promotions. Overruling a leading decision 3 the court held that reservations at every stage of promotion would inevitably undermine the efficiency in administration mandated by Article 335. Once a member of backward class entered the service through reserved quota, efficiency of administration demanded that he or she too compete with others to earn promotions like others. With respect to SC and ST Mandal had been rendered ineffective by 77 th constitutional amendment in 1995. This amendment adds a new clause 4-A to Article 16 which authorises reservations in promotions for the SC and ST. This clause, however, does not affect the decision of Mandal on the issue of promotions in respect of OBC but makes Mandal inapplicable as regards SC and ST. Despite the above amendment authorizing reservation in promotions for the SC and ST, the decision of the Supreme Court in Ajit Singh II v. State of Punjab4 had come as a set back for the SC/ST employees who were promoted but not given seniority from the date of their promotion. In this case it was held that the roster point promotees (reserved category) can not count their seniority in the promoted category from the date of their continuous officiation in the promoted post vis a vis the general candidates who were senior to them in the lower category and who were later promoted. On the other hand, the senior general candidate at the lower level, if he reaches the promotional level later but before the further promotion of reserved candidate he will have to
1 2 3 4

. . . .

Indira Sawhney v. Union of India, (1993) Justice A.M.Ahmadi did not express any opinion on this point. General Manager, S. Railways v. Rangachari, AIR 1962 SC 36. Ajit Singh II v. State of Punjab, (1999) 7 SCC 209, M.G.Badappanavar v State of

Karnataka AIR 2001 260

be treated as senior , at the promotional level, to the reserved candidate even if the reserved candidate was earlier promoted to that level. In so holding the court overruled its earlier decisions in Union of India v. Virpal Singh 5and Jagdish Lal v. State of Haryana.6 Most significantly, the court in Ajit Singh II reaffirmed the principle that Articles 15(4) and 16(4) did not confer any fundamental right to reservation. These provisions do not impose any constitutional duty to provide for reservations: they simply enable the state to depart from the merit principle of selection and provide reservations for backward classes. Right to be considered from promotion is a fundamental right of every individual. Affirmative action according to the court should not result in reverse discrimination. The need therefore is to balance the fundamental right under Article 16(1) the reservations under Article 16(4A). Since a reserved candidate does not compete in merit competition, he cannot claim seniority over the general category candidate even if the reserved category candidate has been promoted earlier in time. This judgment gave rise to resentment among the SC/ST employees which led the Parliament to further amend Article 16(4 A) By 85th Amendment Act 2001 it has been clarified that the seniority of reserved category promotees will be counted from the date of their continuous officiation in the promoted post vis a vis the general category candidates who were senior to them in the lower category but were promoted later. The reversal of Ajit Singh II had been made effective from June, 17, 1995, the day Article 16(4A) came into force. Mandal had also ruled that in making reservations a year should be taken as the basis or unit, as the case may be, for applying the rule of 50 percent and not the entire cadre strength. In other words, the ceiling of 50 percent will apply to backlog vacancies for the reserved categories which could not be filled in any previous year for any reason. Mandal had been nullified by 81st Amendment Act, 2000 by insertion of clause (4 B).The result of this amendment is that carry forward vacancies shall always remain separate from the vacancies falling in a particular year. They are not to be clubbed together for finding out whether the quota of 50 percent has been exceeded. In other words, the state is now permitted to carry forward unfilled vacancies of one year that were reserved under article 16(4) or 16(4A) to any succeeding year(s) and such carry forward vacancies will be ignored while calculating the ceiling of fifty percent. In M. Nagraj v Union of India 7the Supreme Court has upheld the 77th, 81st and 85th amendments to the Constitution that inserted articles 16(4A) and 16(4B) as not violating the basic structure of the constitution. Upholding these amendments the Supreme Court stated: 8 The State is free to exercise its discretion of providing for reservation subject to the limitation, namely, that there must exist compelling reasons of backwardness, inadequacy of representation in a class of post(s) keeping in mind the overall
5 6

. .

(1996) 2 SCC 715. (1997) 6 SCC 538.

7 8

(2006) 8 SCC 212 Id at 272

administrative efficiency. It is made clear that even if the State has reasons to make reservation, as stated above, if the impugned law violates any of the above substantive limits on the width of the power, the same would be liable to be set aside. Reservation clause was described as an enabling provision simply authorizing and not mandating reservations in matters of promotion. The court also made it clear that even if the state had compelling reasons as stated above, the state will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely. The court asserted that exclusion of creamy layer is a part of constitutional scheme. The creamy layer rule was viewed as a necessary bargain between the competing ends of caste based reservations and the principle of secularism. Nagaraj recommended a general test for determining whether an amendment violates the basic structure of our Constitution. The court stated that only those constitutional principles that constitute the constitutional identity and stand at the pinnacle of the hierarchy of constitutional values form part of the basic structure and are beyond the amending power of Parliament. Upholding the constitutionality of reservation in promotions with consequential seniority, the court, while agreeing that equality was a facet of basic structure, observed that the catch up rule that avoided consequential seniority by putting general category candidates on par with those who have benefited from accelerated promotion was not a facet of basic structure . The catch up rule was merely a judicially evolved concept found in the service jurisprudence and could not be elevated to the status of an axiom like secularism, constitutional sovereignty etc. It could not be said that the equality code under Articles 14, 15, 16, was abrogated or destroyed by the deletion of the catch up rule. Therefore the insertion of consequential seniority in Article 16(4A) did not violate the basic structure. Even the partial nullification of Mandal on the ceiling of 50 % of reservation in a particular year by insertion of Article 16(4B) was upheld by the Court as not destroying or abrogating the basic structure. On the other hand equality was furthered by these amendments. The court has thus reiterated the special quality of constitutional commitment accorded to the SC and ST in the matter of job reservation. In T.M.A. Pai Foundation v State of Karnataka9a eleven judge bench of the Supreme Court held that all citizens have the fundamental right to establish and administer educational institutions under Article 19(g) of the Constitution and the term occupation in this article comprehends the establishment and running of educational institutions the state regulation of admission to such institutions would not be regarded as unreasonable restriction under Article 19(6). However, unaided educational institutions had to be kept outside intervention of the state. Subsequently, in P.A. Inamdar v. State of Maharashtra,10 Pai was clarified by the Supreme Court holding that with respect to private unaided educational institutions, State has no power to enforce its reservation policy. These judgments gave rise to widespread criticism of the Court for legitimising and promoting privatisation of education and making education accessible only to the rich and powerful and denying the chances of the students of backward classes to avail the benefits of reservations in unaided minority or non-minority educational institutions.

9 10

2002 8 SCC 481 . (2005) 6 SCC 537

The ruling in Pai and Inamdar was seen as adversely affecting the interests of the backward classes. Parliament again decided to amend the Constitution to enable the State to make appropriate laws to provide for reservations in private educational institutions in favour of socially and educationally backward classes and the SC and ST. 11 Central Educational Institutions (Reservation in Admission) Act 0f 2006(No. 5 of 2007) was passed by Parliament in pursuance of Article 15(5) inserted by 93rd Amendment. The Act provides for reservation of 15, 71/2, and 27 per cent seats in Central Educational Institutions for the Scheduled Castes, Scheduled Tribes, and Other Backward Classes respectively. Certain educational institutions including minority educational institutions have been excluded from the operation of the Act. The Act provides for the increase in the number of seats in institutions in which reservation is made so that the unreserved seats are not less than the seats available in the immediately preceding year. The OBC are defined by the Act as the class or classes of citizens who are socially and educationally backward, and are so determined by the Central Government 12. Ashoka Kumar Thakur v. Union of India 13 involved the constitutional validity of 93rd amendment inserting Article 15(5) in 2005 and Central Educational Institution (Reservation in Admission) Act 2006. . On April 10, 2008 a bench of five judges of the Supreme Court upheld the Act subject to the condition that while designating OBC creamy layer from amongst the OBC will be excluded from the benefits of educational reservations. Thakur held that the concept of creamy layer will not be applicable in case of reservations in favour of the SC and ST as they formed separate classes sanctified by the constitution. The creamy layer principle would apply only for identifying socially and educationally backward classes. Thakur suggested that the elimination of creamy layer from among the SC and ST could always be done by Parliament after the President has determined the list of SC and ST. The nullification of Pai and Inamdar by 93rd amendment inserting article 15(5) has been upheld by the Court in Thakur in relation to the Act which covered only central educational institutions. The validity of the amendment in so far as it applies to private aided or unaided educational institutions has not been decided by four out of five judges as this issue was not raised before the Court. Since Mandal related to interpretation of Article 16(4) it was unclear whether the guidelines supplied in that case for determining backward classes would also be apply to Article 15(4) and
11

Article 15(5) was added by the Constitution (Ninety-third Amendment) Act, 2005 (with

effect from 20-1-2006) which reads as follows: Nothing in this article or in sub clause( g) of Article 19 shall prevent the State from making a special provision, by law, for the advancement of any socially and educationally backward classes of citizens or the Scheduled Castes and Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the state, other than minority educational institutions referred to in clause (1) of Article 30.
12

Section 4(b) of the Act of 2007 excludes the provision for reservation in the institutions of excellence, research institutions, institutions of national and strategic importance specified in the Schedule appended to the Act. (2008) (5) SCALE, per K.G. Balakrishnan CJI, and Arijit Pasayat, C.K. Thakker, R.V. Ravindran and Dalveer Bhandari JJ.

13

15(5).. Thakur has clarified the principles laid down in Mandal will equally apply to reservations under Articles 15(4) and 15(5). In result the beneficiaries of both educational and job reservations would be the same and the government can draw a common list of OBC for providing job and educational reservations. Mandal, Nagaraj and Thakur have settled many controversies surrounding the reservation issue. That equality is a facet of basic structure of the Constitution is firmly established. Nagraj has required the state to place before it the requisite quantifiable data and satisfy the court that reservation became necessary on account of inadequacy of representation of SC and ST in a particular class or classes of posts without affecting general efficiency of service. All existing and future reservation schemes for socially and educational backward classes that do not identify creamy layer stand the risk of being invalidated by the court.

LECTURE III RIGHT TO LIFE AND PERSONAL LIBERTY Article 21 of the Constitution is couched in negative language but by a process of creative and innovative interpretation, today Article 21 has become the source of many positive rights by extraordinary interpretation of the expression LIFE, PERSONAL LIBERT Y AND PROCEDURE ESTABLISHED BY LAW occurring in Article 21. LIFE Using human dignity as the central idea implicit in the fundamental right to life under Article 21 of the Constitution, the Supreme Court has recognized and enforced various socio-economic rights such as right to food, health, education, and means of livelihood etc by integrating nonenforceable directive principles into enforceable fundamental rights. Right to life includes the right to live with human dignity and all that goes along with it, namely bare necessaries of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. Francis Coralie v Union Territory of Delhi (1981) Right to live with human dignity free from exploitation derives its life breath from the directive principles of State policy such as health care, educational facilities humane conditions of work and maternity relief Bandhua Mukti Morcha v Union of India (1984) Right to means of livelihood (Olga Tellis v Bombay Municipal Corporation (1985) Right to unpolluted environment ( Vellore Citizen Welfare Forum v Union of India (1996) Right to Food (PUCL v Union of India (2001) Right to Dignified life of the prostitutes (Gaurav Jain v Union of India (1997) Right to education (Unnikrishnan v State of Andhra Pradesh (1993) Right to health care (Paschim Banga Khet Majoor Samity v State of West Bengal l(1996)

Right to Shelter ( Gauri Shanker v Union of India (1994) Right to water ( Narmada Bachao Andolan v Union of India (2000)

PERSONAL LIBERTY A K Gopalan v State of Madras (1951) Right to personal liberty means freedom from physical restraint. Kharak Singh v State of UP (1963) Personal liberty is a compendious term to include within itself all varieties of rights which go to make up personal liberties other than those included in Article 19(1). Article 21 comprises the residue. Unauthorized intrusion into a persons home and disturbance caused to him is a violation of personal liberty. Right to privacy includes telephonic conversation and therefore telephone tapping violates article 21 (PUCL v Union of India (1997) Right to be let alone, right to privacy a part of personal liberty ( R. Rajagopal v TN (1994) Right of a prisoner to write and publish a book a part of right to personal liberty ( State of Maharashtra v Prabhakar Pandurang(1966) Right to go abroad (Satwant Singh v Assistant Passport Officer(1967) Naz Foundation v Govt of NCT (2009) Right of privacy of Homosexuals, Gay, bisexuals and Lesbians. Section 377 of IPC which was used to criminalize them no longer applied to consenting adults and this provision violates Article 21.

PROCEDURE ESTABLISHED BY LAW A K Gopalan v State of Madras (1951) Procedure established by law means procedure enacted by a law made by the State. Law a here means State made law and does not mean just law; Procedure need not satisfy the rules of natural justice. Article 21 provided protection against executive action and not against legislative action. When a person was lawfully deprived of his life or personal liberty he could not claim any of the rights guaranteed by Article 19. Article 21 and 19 were exclusive of each other. Arguments based upon American due process clause were rejected by the Supreme Court. Gopalan was the law of the land until 1978 and was overruled in Maneka Gandhis case (1978) Maneka Gandhi v Union of India (1978) Principles Article 21 does not exclude Article 19. A law prescribing a procedure for depriving a person of his life and personal liberty will have to meet the requirement of Article 19 as well the principle of reasonableness embodied in Article 14 Principle of reasonableness an essential element of equality and non-arbitrariness pervades Article 14 and must equally apply to procedure in Article 21 Hence procedure depriving a person of his life or personal liberty must be fair, just and reasonable and not arbitrary, fanciful or capricious or oppressive.

Thus by an imaginative constitutional interpretation the Indian Supreme Court made history by implanting American procedural due process into our Constitutional jurisprudence.

EXPANDING HORIZON OF ARTICLE 21 Right against solitary confinement (Sunil Batra v Delhi Administration (1978) Right against handcuffing and bar fetters ( Prem Shankar Shukla v Delhi Administration (1980) Right of women and children against sexual abuse in police lockup ( Sheela Barse v Union of India (1986 Right to legal Aid (M H Hoskot v State of Maharashtra (1978) Right to speedy trial (Hussinara Khatoon v State of Bihar (1980) Right against cruel and unusual punishment ; delay in the execution of death sentence entitles a convict to get it commuted to life imprisonment( T V Vatheeswaran v Tamil Nadu (1983 Right of release and rehabilitation of Bonded Labour ( Bandhua Mukti Morcha v Union of India (1984) Right to Compensation for violation of Fundamental Rights ( Nilabati Behera v State of Orissa (1993 Right to Fair Trial ( Zahira H Sheikh v State of Gujarat (2006) Right to privacy (Naz Foundation (2009)

LECTURE IV CONSTITUTIONAL REMEDY FOR THE ENFORCEMENT OF FUNDAMENTAL RIGHTS Both the Supreme Court (Article 32) and High Courts (Article 226) have concurrent power to enforce fundamental rights by issuing writs, orders or directions but right to move the Supreme Court for enforcing fundamental rights is itself a fundamental right which cannot be abridged or abrogated by an Act of Legislature. The right to move the Supreme Court under Article 32(1) can be exercised by appropriate proceedings. ARTICLE 32 (1) Meaning of appropriate proceedings: The Supreme Court has ruled in several cases that appropriate proceeding has to be judged by purpose of proceedings. If the purpose of proceeding is to enforce fundamental rights of the poor, disabled, ignorant, oppressed and victim of brutalities the Court will not insist upon a regular writ petition and the Court can be moved even by writing a letter or sending a post card or news paper clipping to the Chief Justice of the Supreme Court and such letters etc shall be treated as writ petition. In the Supreme Court there is a PIL cell to scrutinize all such letters. ARTICLE 32 (2) Under Article 32(2) the Court is bound to issue appropriate directions, orders, or writs for enforcement of fundamental rights. It cannot say that first you go to the High Court and then come to us.

10

The court can give any kind of relief or remedy including a direction to the State to pay compensation

ARTCICLE 226 The High Courts enjoy the same powers as the Supreme Court has and can enforce fundamental rights by issuing appropriate writs, orders or directions. COMPENSATION JURISPRUDENCE In many cases since 1983 the Supreme Court under its jurisdiction under Article 32 has awarded compensation as a public law remedy for violation of fundamental rights and the state has been directed to pay compensation to the victims of rights violations. Most of such cases involved the violation of Article 21. Rudal Sah v State of Bihar (1983) Rs 35000 awarded as compensation to Rudal Sah for his illegal detention in Bihar jail Sebastian M Hongary v Union of India (1984) One lakh compensation given to two widows whose husband had did in military custody Bhim Singh v State of J&K (1986) A MLA who was illegally detained by police was awarded Rs 50000 as monetary compensation for violation of his right under article 21, Saheli v Commr Police Delhi (1990) A child aged 9 died in police custody. The mother was awarded compensation of Rs 75 000. Nilabati Behera v State of Orissa (1993) A boy aged 22 died in police custody. Monetary compensation of 150000 was awarded to the mother. The Supreme Court held that the plea of sovereign immunity shall not be applicable in such cases.

PUBLIC INTEREST LITIGATION AND JUDICIAL ACTIVISM I Introduction Judicial activism is an extension of the power of judicial review where the judges make social policies and create new jurisprudence of social and economic rights and indulge in judicial law making. The most significant development of judicial activism in India has been through Public Interest Litigation. II Features of PIL In S.P. Gupta v. Union of India i Justice P.N. Bhagwati articulated the concept of PIL as follows: Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of person by reason of poverty, helplessness or disability or socially or economically disadvantaged position unable to approach the court for relief, any member of public can maintain an application for appropriate direction , order or writ in the High Court under Article 226 and in case any breach of fundamental rights of such persons or determinate class of persons, in this court under Article 32 seeking

11

judicial redress for the legal wrong or legal injury caused to such person or determinate class of persons. The new procedure evolved by the Indian Supreme Court allows any member of public acting in a bona fide manner to espouse the cause of the victims of human rights violations. One can invoke courts jurisdiction just by writing a letter or sending a telegram. This has been termed epistolary jurisdiction. Only a person acting bona fide and having sufficient interest in the proceedings of PIL has a locus standi and can approach the court to wipe out the tears of the poor and the needy, suffering from violation of their fundamental rights but not a person for personal gain or private profit or political motive or any oblique consideration. PIL proceedings entail new forms of fact finding such as appointment of socio-legal commissions of inquiry and handing over the investigation to the National Human Rights Commission or CBI. The Court has taken the help of journalists, lawyers, district judges, bureaucrats, and expert bodies for ascertaining the facts alleged in PIL proceedings. For example, the court can award interim compensation to the victims of governmental lawlessness. This stands in sharp contrast to the Anglo-Saxon mode of adjudication where interim relief is limited to preserving status quo pending final decision. The grant of interim relief in PIL cases does not preclude the aggrieved person to claim damages from a civil court. III PIL Movement and Rights of the Poor and the Oppressed Ideologically, the PIL activism addresses and confronts the domination formations in civil society and activates public discourse on practices of power with the partnership of the media, legal academics, bar and the judges. PIL has become a byword for judicial involvement for the protection of human rights in India. It is in essence a movement to involve the judicial process for the creation of norms of a just social order based upon the principle of justice and humanism. In this movement people participate in the activation of the judicial power for creating a regime of human rights with the active support of the social activists. The judges are asked not only to vindicate governmental commitments to human rights of the poor and the disadvantaged but also to enforce public duties to protect and maintain collective-diffuse social rights and to prevent the decline in political morality. Hussainara Khatoon v. State of Bihar (1979) was the first reported case of PIL seeking relief to the undertrial prisoners languishing in jails. The PIL proceedings in this case resulted in the release of nearly 40,000 undertrial prisoners languishing in Bihar jails. Anil Yadav v. State of Bihar (1981) depicted the police brutalities. About 33 suspected criminals were blinded by the police in Bhagalpur jail in Bihar through putting acid into their eyes and then eyes were burnt. The Supreme Court quashed the trial of blinded persons, condemned the police barbarity in strongest terms and directed the Bihar government to bring the blinded persons to Delhi for medical treatment at the states expense. The court declared free legal aid as a fundamental right as an aspect of right to life and personal liberty. The human rights of prisoners subjected to torture, victims of police excesses, inmates of protective homes and mental asylums, bonded and child labour, victims of sexual harassment and earthquake victims and many others have been protected by the Supreme Court. In environmental cases the court has addressed the issues of environmental degradation such as vehicular pollution, leakage of oleum gas from a factory, danger to the Taj Mahal from Mathura refinery, degradation of Ridge area in Delhi, pollution caused by shrimp farming, tanneries, and chemical industries and so on. The Court has taken several activist measures to ensure compliance of pollution standards. The most abiding contribution of PIL has been the emergence of new human rights such as right to speedy trial, right against torture, right against bondage, right against sexual harassment, right to shelter and housing, right to dignity, right to clean environment, right to education, right to legal aid, right to health care and so on. It creates a new jurisprudence of accountability of the State for constitutional and legal obligations adversely affecting the interest

12

of the weaker sections of the society. It reminds and alerts the political executive of its failings and lapses. In performing expose function the judges remind the governmental functionaries to perform their public duties and maintain rule of law. A. Right against Custodial Injustice PIL activism has brought to the notice of the Supreme Court incidents of human rights violations by custodial institutions such as prisons, mental asylums and womens homes. Incidents of police brutalities and encounter killings have also attracted remedial attention. In D.K. Basu v. State of West Bengal,(1997) the Supreme Court acted upon a letter petition in August 1986 by the chairman of the Legal Aid Services, West Bengal which referred to the increasing incidents of custodial deaths in West Bengal. The Court issued extensive directions to be followed by the police upon the arrest of a person and the minimum facilities available to such person. The Court observed. Police is no doubt, under a legal duty and has a legitimate right to arrest a criminal and to interrogate him during the investigation of an offence but the law does not permit use of third degree methods or torture of the accused in custody during interrogation and investigation with a view to solve the crime. The Court ruled that a relative of the arrested person must be promptly notified and that the police stations must prominently display the basic rights available to a detainee. These are few instances of denial of human right where the only way to protect human rights has been to grant compensation. The compensation jurisprudence was most clearly articulated by the Supreme Court in 1993 in Nilabati Behera v. State of Orissa (1993)in response to a PIL alleging death of a boy of 22 years in police custody. The Court evolved the principle of public law doctrine of compensation for violation of human rights. According to this doctrine, liability of the state for violation of human rights is absolute and admits of no exception such as sovereign immunity. In this case the court awarded Rs. 1,50,000 to the mother of the boy as compensation for custodial death. In D.K. Basu the Supreme Court has articulated compensation jurisprudence thus: Award of compensation for established infringement of indefeasible rights guaranteed under Article 21 is a remedy available in public law since the purpose of public law is not only to civilize public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. B. Right against Sexual Harassment

In Delhi Domestic Working Womens Forum v. Union of India,(1995) the PIL arose out of indecent sexual assault by seven army personnel against six domestic servants traveling in train from Ranchi to Delhi. The Supreme Court, with a view to assisting rape victims, has laid down various broad guidelines. These guidelines include the legal assistance, anonymity, compensation and rehabilitation to rape victims. The National Commission for Women was directed to evolve a scheme for providing adequate safeguards to these victims. In another significant pronouncement, Vishaka v. State of Rajasthan,(1997) the Supreme Court declared that sexual harassment of

13

women at workplace constitutes violation of gender equality and right to dignity which are fundamental rights. Taking note of the fact that the existing civil and penal laws in India did not provide adequate safeguards against sexual harassment at work place, the court laid down 12 guidelines to be followed by every employer to ensure prevention of sexual harassment. Most importantly, the court ruled that all courts in India must construe the contents of fundamental rights in the light of international conventions so long as such conventions were not inconsistent with fundamental rights. C. Right against Bondage . Most of the PIL proceeding on bonded labour seek to implement the Act. The first major PIL on this issue was Bandhua Mukti Morcha v. Union of India,(1984) filed in 1981 and decided on December 16, 1983. The action was brought for the identification, release and rehabilitation of hundreds of bonded labour working in the stone quarries of Haryana. The court issued 21 directions to Haryana government. During the proceedings, the court monitored its own directions and appointed a number of commissions of inquiry. Unfortunately most of the directions remained unimplemented for many years. The Court acknowledged its limited capacity in monitoring the schemes of rehabilitation. In 1992 the court recounted the history of the case and was shocked to note that there was not the slightest improvement in the conditions of the workers of the stone quarries. The litigation ended up with one more warning to the government to be responsive to judicial directionsii. D .Right of the Child

A major PIL on juveniles in jails was filed by a journalist in 1985. The petition in Sheela Barse v Union of India (1985) asked for release of children below the age of sixteen and for information on the number of such children. The court was also asked to ensure that adequate facilities were provided for the children in the form of juvenile courts, homes and schools, that district judges should be directed to visit jails and so on. There were many orders from 1985 onwards which remained unimplemented for a long time. In the meantime Parliament passed Juvenile Justice Act 1986. The courts attention was now diverted to the implementation of Act. Then the Supreme Court Legal Aid Committee pursued the case. In its final order in 1989 the Supreme Court stressed the need to create juvenile courts, homes and schools. A committee of advocates was appointed to prepare a draft scheme for the proper implementation of Act. PIL in this case was ultimately effective as today the country has no juvenile delinquents in jails. E. Right to Food In Peoples Union for Civil Liberties v. Union of India (2001) the petitioners sought a direction for the enforcement of Famine Code and immediate release of food grains lying in the stocks of the Government of India. Directions were also sought requiring the Government to frame fresh schemes of Public Distribution for the Scientific and Reasonable Distribution of food grains. The Court expressed its deep concern that despite the fact that plenty of surplus food grains was lying in the stocks of the Union of India or drought affected areas, people were dying of starvation. The Court recalled that between 2001 and 2003 it had passed various directions to see that food was provided to the aged, infirm, disabled and destitute men and women who were in danger of starvation pregnant and lactating women and destitute children especially in cases where they or members of their family did not have sufficient funds to provide food. It was unfortunate that

14

plenty of food was available but distribution of the same was among the very poor and destitute was scarce leading to starvation, malnutrition and other related problems. Mere schemes without implementation were of no use. The Court gave several directions to the Central and state government to implement centrally sponsored poverty alleviation schemes. IV CONCLUDING REMARKS PIL has produced astonishing results which were unthinkable two decades ago. Degraded bonded labourers, tortured under trials and women prisoners, humiliated inmates of protective womens home, blinded prisoners, exploited children, beggars, and many others have been given relief through judicial intervention. The greatest contribution of PIL has been to enhance the accountability of the governments towards the human rights of the poor iii. However, the judges acting alone cannot provide effective responses to state lawlessness but they can surely seek a culture formation where political power becomes increasingly sensitive to human rights. When peoples rights are invaded by dominant elements, PIL emerges as a medium of struggle for protection of their human rights. The legitimacy PIL enjoys in the Indian legal system is unprecedented. PIL activism interrogates power and makes the courts as peoples court.

15

i ii

iii

LECTURE V &VI

AMENDMENT OF THE CONSTUTUTION Distinction between Constituent Power (Power to amend the Constitution under Article 368) and Legislative Power (power to make ordinary laws under Articles 246 read with 7 th Schedule of the Constitution.) Any law violating fundamental rights will be struck down by the courts under Article 13(2) of the Constitution. Shankari Prasad v Union of India (1951) Insertion of Article 31-A and 31-B upheld. Parliament enjoys unlimited power to amend any provision of the Constitution and can take away fundamental right by exercising its constituent power. Article 13(2) applies to ordinary laws and does not control constitutional amendments. Sajjan Singh v State of Rajasthan (1965) Inclusion of legislation in 9 th schedule by 17th amendment upheld. Held law in Article 13 does not include amendments. Shankari Prasad followed.

Golak Nath v State of Punjab (1967). Punjab Security of Land Act included in 9 th schedule by 17th amendment challenged for violating fundamental rights. By a majority of 6:5 the Supreme Court read implied limitation on the power of Parliament to amend the Constitution PRINCIPLES LAID DOWN IN GOLAKNATH Fundamental rights are outside the amendatory power of Parliament. People have reserved to themselves fundamental freedoms which are inviolable and sacrosanct, unalterable and transcendental. Fundamental rights are natural rights. Parliament cannot take away fundamental rights even both Houses of Parliament unanimously pass a legislation to abridge fundamental rights because of Article 13(2) Amending process is a legislative process and there is no distinction between constituent power and legislative power. Therefore law in Article 13(2) controls amendment under Article 368 Article 368 contains only procedure to amend the constitution; it does not contail power to amend the Constitution. Amending power is legislative power and so the power to amend the Constitution is under the residuary legislative power of Parliament under Article 248 read with Entry 97 of 7 th Schedule. Parliament in the exercise of its amending power cannot take away or abridge fundamental rights. From the date of this judgment Parliament will have no power to amend the Constitution so as to take away or abridge fundamental rights. However all amendments made before the date of this judgment will be valid. Future preserved past protected. This is called the doctrine of prospective overruling.

In 1970 Lok Sabha was dissolved by Srimati Indira Gandhi so that she returns to power with overwhelming majority and nullify Golak Nath by amending the Constitution. 24th Amendment was passed in 1971 to override Golak Nath Article 13(4) added to clarify that law will not include amendment. Article 368(3) clarified that Article 13 will not apply to amendments. Article 368 was amended to clarify that this Article contains the power as well as the procedure to amend the Constitution. The amendment in 368 asserted that Parliament in exercise of Constituent power may amend by way of variation, addition or repeal any provision of the Constitution including fundamental rights. The amendment clarified that amendment and law are different concepts.

25th Amendment 1971 inserted Article 31 C to the effect that law implementing directive principles in 39(b) and (c) shall not be called into question before any court of law for infringing Articles 14, 19 and 31 of the Constitution. Kesavanand Bharti v State of Kerala (1973) Thirteen Judge Bench decision, majority of 7 judges (Sikri CJ, Shelat, Hegde, Grover,Jaganmohan Reddy,Khanna,Mukherji)Dissent : Ray,Palekar,Mathew,Beg, Chandrachud,Dwivedi,JJ) Majority Decision Golak Nath overruled 24th amendment declared valid Law is different from amendment Parliament has power to amend the Constitution including fundamental rights. Parliament has no power to amend the Constitution so as damage or destroy its basic features or basic structure. The identity of the Constitution cannot be destroyed by exercise of amending power.

DOCTRINE OF BASIC STRUCTURE Parliaments power to amend the constitution is subject to certain inherent or implied limitations. These limitations are to be inferred from certain foundational values enshrined in the constitution such as the Preamble, freedom and dignity of individual, supremacy of the constitution, secular nature of the state, separation of powers, system of checks and balances, democratic form of government, welfare state, directive principles. Parliament cannot by exercising its amending power destroy or damage the basic features of the constitution. 25th Amendment inserting 31 C was also declared valid. Laws implementing the directive principle contained in Article 39(b) and (c) were allowed to override Article 14, 19 and 31. Indira Nehru Gandhi v Raj Narain (1975) Indira Gandhi appealed to the Supreme Court against Allahabal High Court order invalidating her election from Rai Bareilly on the ground of corrupt practice. Pending appeal she got 39 th amendment passed to overcome the effect of High Court order. 39th amendment withdrew jurisdiction of all courts over election disputes involving the Prime Minister, A five judge Constitution bench ( Khanna, Mathew, Chandrachud, Ray CJ and Beg JJ) struck down the 39 th amendment. The court held that free and fair elections, equality, rule law and democracy are the basic features of the Constitution which have been destroyed by the amendment. During Emergency 42nd Amendment was passed in 1976 to nullify the effect of Kesavananda Article 31C was amended to give primacy to all directive principles over fundamental rights Clause 4 was added to Article 368 to the effect that no amendment of the Constitution including fundamental rights shall be called into question inany court of law Clause 5 was added to Article 368 which said : For removal of doubt it is hereby clarified that there shall be no limitation whatever on the constituent power of Parliament.

These amendments were challenged in Minerva Mills Ltd v Union of India (1980)

The Supreme Court declared all these amendments as unconstitutional. The following features were identified as forming part of basis structure of the Constitution. Limited amending power is a basic feature of the constitution. Limited power cannot be enlarged into absolute power. Article 368(4) is unconstitutional. Judicial review of amendments cannot be excluded as judicial review is a basic feature of the Constitution. Article 368(5) is unconstitutional Amended Article 31C has destroyed a basis feature of harmony and balance between Directive Principles and Fundamental Rights. Giving primacy to directive principles has destroyed this balance. Article 31C is unconstitutional.

Waman Rao v Union of India ( 1981) The Supreme Court held that all amendments to 9 th Schedule read with Article 31-B made before 24.4.1973(the date of Kesavananda judgment) will be valid but amendments made after 24.4.1973 could be challenged on the ground of violation of basic structure. M Nagaraj v Union of India (2006) Five judges bench of the Supreme Court unanimously upheld the validity of Constitutional amendments adding 4-A, 4-B in Article 16 and inserting a proviso to Article 335. The court held that these amendments did not destroy the basic structure of the constitution Nagaraj recommended a general test for determining whether an amendment violates the basic structure of our Constitution. The court stated that only those constitutional principles that constitute the constitutional identity and stand at the pinnacle of the hierarchy of constitutional values form part of the basic structure and are beyond the amending power of Parliament. These amendments did not alter the basic structure of equality code. Nagaraj ruled that not an amendment of a particular article but an amendment that adversely affects or destroys wider principles of the Constitution such as democracy, secularism, equality, or republicanism or the one that changes the identity of the Constitution is impermissible. I R Coehlo v State of Tamil Nadu (2007) This is the unanimous judgment of nine judge bench of the Supreme Court on the doctrine of basic structure. This judgment places this doctrine on a strong footing. This case establishes strong links of the basic structure doctrine with fundamental rights. Coehlo affirms Waman Rao. The question before the Court was whether 9 th Schedule read with Article 31-B conferred uncontrolled power on Parliament to exclude judicial review in the exercise of amending power. Article 31-B read with 9th Schedule empowers Parliament to provide immunity of fundamental rights to the laws included in the 9th schedule. These laws cannot be challenged in any court for infringement of fundamental rights. For long Parliament has abused its power and the list of such in 9 th Schedule have swollen from 13 laws to 284 in 1995. Article 31-B was intended to cover only agrarian reform laws but over the years all kind of laws have been put in this schedule. Coehlo held that after 24.4.1973 Article 31-B cannot confer unlimited immunity to amendments to 9 th Schedule. All such laws will have to pass the test of basic structure doctrine. The doctrine of basic structure is conceived in terms of certain foundational values or constitutional principles embodied in the Constitution. Fundamental rights constitute one of the foundational values which cannot be tampered by the exercise of amending power. The court did not decide upon the validity of any laws included in the 9 th Schedule but asserted the power of the Court to judge the validity of such laws on the touchstone of basic structure doctrine. Contents of Basic Structure

Judicial Review ( Minerva Mills , L Chandra Kumar)Democracy- free and Fair elections ( Indira Nehru Gandhi)Rule of Law ( Indira Nehru Gandhi)Secularism ( S R Bommai)Federalism ( S R Bommai)Harmony and Balance Between Fundamental Rights and Directive Principles ( Minerva Mills)Independence of Judiciary ( Kumar Padma Prasad)Equality ( Indra Sawhney )