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The Speaker's decision adjourning the House sine die on 23‑12‑2003 and directing it to resume its sittings in part two relates to proceedings in Parliament and is procedural in nature. The business transacted and the validity of proceedings after the resumption of its sittings pursuant to the directions of the Speaker cannot be inquired into by the courts. The observations in Ramdas Athawale (supra) that it was purely a matter of procedure cannot be interpreted to mean that procedural infringements are not subject to judicial review. Supreme Court of India observed that the procedure alleged to have been violated would only render the proceedings irregular and would not vitiate the proceedings themselves. The observations in Ramdas Athawale (supra) must be read in light of our analysis above that procedural infringements would vitiate the proceedings based on their purpose and the impact of their infringement on the democratic functioning of Parliament., The power to appoint the Whip and the Leader of the legislature party involves a distinction between political party and legislature party. Paragraph 1(b) of the Tenth Schedule defines legislature party as the group consisting of all members of a House belonging to a political party in accordance with the provisions of paragraph 2 or paragraph 4. Paragraph 1(c) defines original political party as the political party to which the member belongs for the purposes of Paragraph 2(1). Paragraph 2 stipulates that a member belonging to any political party shall be disqualified from being a member of the House if he has voluntarily given up membership of such political party, or if he votes contrary to the direction issued by the political party to which he belongs or by any person or authority authorised by it. A member who has voted contrary to the direction of the political party would not incur disqualification if such a vote is condoned by the political party or if prior permission of the political party is secured., The petitioners contend that the Whip and the Leader must be appointed by the political party because Paragraph 2(1)(b) requires that the direction to vote in a particular manner in the House must be from the political party or a person authorised by it. The respondents submit that the distinction between political party and legislature party is artificial and that they are intertwined concepts. Reference was made to Paragraph 4(2) of the Tenth Schedule and Paragraph 6A of the Symbols Order. The term political party is not defined in the Tenth Schedule, but the explanation to Paragraph 2 creates a deeming fiction that an elected member of a House shall be deemed to belong to the political party by which he was set up as a candidate for election. Paragraph 4 creates another deeming fiction: if the original political party merges with another political party and its members become members of such other political party or a new political party, then that other political party or the new political party shall be deemed to be the political party of the member for the purposes of Paragraph 2. For example, Ms. Z belonging to Party A shall not be disqualified for voting against the direction of Party A if Party A merges with Party B to form Party C or if Party A is subsumed by Party B, because for the purposes of the Tenth Schedule Party B or Party C shall be deemed to be her original political party. Paragraph 4(2) stipulates that a merger is deemed to have taken place only if not less than two‑thirds of the members of the legislature party have agreed to the merger. Paragraph 3, which was omitted by the Constitution (Ninety‑first Amendment) Act 2003, stipulated that a member would not be disqualified for prohibitory conduct if there is a split in the original political party and the legislature party., Paragraph 6A of the Symbols Order lays down conditions for the recognition of a political party as a recognized State party. A political party shall be eligible for recognition as a State party in a State if, and only if, any of the following conditions is fulfilled: (i) at the last general election to the Legislative Assembly of the State, the candidates set up by the party have secured not less than six percent of the total valid votes polled in the State and the party has returned at least two members to the Legislative Assembly; or (ii) at the last general election to the House of the People from that State, the candidates set up by the party have secured not less than six percent of the total valid votes polled in the State and the party has returned at least one member to the House of the People; or (iii) at the last general election to the Legislative Assembly of the State, the party has won at least three percent of the total number of seats in the Legislative Assembly, or at least three seats, whichever is more; or (iv) at the last general election to the House of the People from the State, the party has returned at least one member to the House of the People for every twenty‑five members or any fraction thereof allotted to that State; or (v) at the last general election to the House of the People from the State, or to the Legislative Assembly of the State, the candidates set up by the party have secured not less than eight percent of the total valid votes polled in the State., Political party and legislature party cannot be conflated. The contention that they are inexorably intertwined is erroneous for two reasons. First, Parliament, in its constituent capacity, was conscious of the necessity of not allowing anti‑defection laws to stifle intra‑party dissent and the freedom of expression of legislators. It introduced the defences of merger and split (the latter later omitted) so that a substantial number of legislators—two‑thirds in the case of a merger and one‑third in the case of a split—could disagree with the political party without attracting disqualification. The Tenth Schedule therefore recognises the independent existence of the legislature party to the limited extent of presenting a defence to actions that would otherwise amount to defection. Second, Section 29A of the Representation of the People Act, 1951 requires an association of individuals calling itself a political party to be registered with the Election Commission of India. The party need not have returned candidates to the assembly to be registered. Under the Symbols Order, a political party receives recognition as a State Party or a National Party based on the number of candidates returned to the assembly and the percentage of votes secured, to identify whether the political party has a substantial presence in the electoral fray and to freeze an electoral symbol for that party. The Symbols Order does not refer to an association of legislators apart from the political party, and therefore the reference to the Symbols Order to argue that the concepts of political party and legislature party are intertwined does not hold merit., Rule 2(f) of the 1986 Rules defines leader in relation to a legislature party as a member of the party chosen by it as its leader and includes any other member authorised by the party to act in the absence of the leader. Rule 3(1) requires the leader of each legislature party (other than a legislature party consisting of only one member) to furnish, within thirty days of the commencement of the rules or of the formation of the legislature party, a written statement containing the names of members of the legislature party with particulars as specified in Form I, the names and designations of members authorised to communicate with the Speaker, a copy of the rules and regulations of the political party, and, if the legislature party has separate rules, a copy of those rules., Rule 3(4) stipulates that the leader must furnish updated information if there has been a change in the information previously furnished under Rule 3(1). Rule 3(5) provides that if a member votes or abstains from voting in the assembly contrary to the direction of the political party without prior permission, the leader of the legislature party may, within thirty days, communicate to the Speaker whether such voting or abstention has been condoned by the political party. The 1986 Rules neither use nor define the term Whip., The term Whip is defined in the Act of 1956. Section 2 of the Act of 1956 provides that a Member of Legislative Assembly shall not be disqualified for holding the offices stipulated in Schedule I. Clause 23 of Schedule I mentions the offices of Chief Whip or Whip in the Maharashtra State Legislature. The explanation to this clause defines a Whip as the member of the House who is, for the time being, declared by the party forming the Government to be the Chief Whip or Whip in that House and recognised by the Speaker; it also includes a member of the House who is declared as such by a party having at least ten percent of the total number of the House and recognised by the Speaker (or Chairman in the case of the Legislative Council)., On a literal interpretation of the provisions of the Tenth Schedule, the 1986 Rules and the Act of 1956, the direction to vote or abstain from voting arises from the political party and not the legislature party for three reasons. First, Paragraph 2(1)(b) of the Tenth Schedule provides that the direction must be issued by the political party or by any person or authority authorised by it, and prior permission must be obtained from the political party if a member wishes to vote contrary to the direction, with the political party required to condone such action within fifteen days. The provision uses the word ‘it’ to refer to the political party, and a reading that treats ‘political party’ as ‘legislature party’ would render the schedule unworkable. Second, the Whip communicates the directions of the party to its members; the term Whip is not used in the Tenth Schedule or the 1986 Rules but appears in the Act of 1956, where the explanation to Clause 23 of Schedule I states that the Chief Whip is declared by the party forming the Government, meaning the political party. Third, the respondents’ argument that the Whip is chosen by the legislature party because Rule 3(1)(a) requires the leader to inform the Speaker of members authorised to communicate with the Speaker is erroneous. Rule 3(1)(a) refers to members authorised to act as the leader in the leader’s absence, and Rule 3(5) makes clear that only the leader communicates with the Speaker regarding condonation of prohibitory actions. Under the 1986 Rules, the Whip is not the designated authority to file disqualification petitions; Rule 6 provides that any member of the Maharashtra Legislative Assembly may file such a petition., In Mayawati (supra), the appellant, as leader of the Bahujan Samaj Party, issued a direction to all its Members of Legislative Assembly to vote against a motion of no confidence moved by the Bharatiya Janata Party. Twelve Members of Legislative Assembly belonging to the Bahujan Samaj Party voted in favour of the no confidence motion. The appellant filed petitions for disqualification against these twelve members for violation of Paragraphs 2(1)(a) and 2(1)(b). The Speaker dismissed the petitions, finding that it was not proved that the appellant was authorised to issue the direction on behalf of the political party. The order of the Speaker was challenged before the Supreme Court of India. It was submitted that ‘political party’ in Paragraph 2(1)(b) must be read as ‘political party in the House’, meaning the legislature party. Justice Srinivasan, in his separate opinion, rejected this argument and upheld the Speaker’s order, observing that there was no material to indicate that the appellant was authorised by the Bahujan Samaj Party to issue the direction. He held that ‘political party’ in Paragraph 2(1)(b) cannot be interpreted to mean legislature party while the same phrase in Paragraph 2(1)(a) retains its original meaning; that such an interpretation would render explanation (a) to Paragraph 2(1) otiose because a legislature party cannot set up a person as a candidate for election; that disqualification is a serious consequence that can only ensue from voting contrary to the direction of the political party; and that, as held in Kihoto Hollohan (supra), a direction to vote can be given only if the vote would alter the status of the government or is on a policy on which the political party that set up the candidate went to polls on. Only the political party and not the legislature party can issue directions concerning such issues., Hence, the plain meaning of the provisions of the Tenth Schedule, the 1986 Rules and the Act of 1956 indicates that the Whip and the Leader must be appointed by the political party., The Tenth Schedule was introduced to thwart the growing tendency of legislators to shift allegiance to another political party after being elected on the ticket of a certain political party. Defection of Members of Legislative Assembly would alter the composition of the House and could lead to the toppling of the Government, compromising moral and democratic principles. The Statement of Objects and Reasons of the Constitution (Fifty‑second Amendment) Bill, 1985 states that the Schedule was enacted to combat the evil of political defections which would undermine the foundations of democracy. In Kihoto Hollohan (supra), SR Bommai and Kuldip Nayar v. Union of India, the Supreme Court of India recognized that political parties are central to the Indian democratic set‑up and that the Tenth Schedule seeks to curb defections from political parties. When the anti‑defection law seeks to curb defections from a political party, it logically follows that the power to appoint a Whip vests with the political party., To hold that the legislature party appoints the Whip would sever the figurative umbilical cord that connects a member of the House to the political party. It would allow legislators to rely on the political party for election, campaign on its promises and policies, and then later disconnect themselves entirely, functioning as a group of Members of Legislative Assembly that no longer owes any allegiance to the political party. This is not the system of governance envisaged by the Constitution, and the Tenth Schedule guards against precisely this outcome., The appointment of a Whip by the political party is crucial for the sustenance of the Tenth Schedule. The entire structure of the Schedule, built on political parties, would crumble if this requirement were not complied with, rendering its provisions otiose and having wider ramifications for the democratic fabric of the country. Thus, the Supreme Court of India cannot be excluded by Article 212 from inquiring into the validity of the action of the Speaker recognizing the Whip., On 25 November 2019, a meeting with the newly elected Members of Legislative Assembly belonging to the Shiv Sena was chaired by Mr. Uddhav Thackeray in his capacity as Shiv Sena Party President (Paksh Pramukh). The resolution noted that the members unanimously resolved that all decisions in the meeting would be taken by Mr. Thackeray. A resolution was issued appointing Mr. Eknath Shinde as the Group Leader of the Shiv Sena Legislative Party and Mr. Sunil Prabhu as the Chief Whip., On 21 June 2022, some members of the Shiv Sena Legislative Party held a meeting under the chairmanship of the party president, Mr. Uddhav Thackeray. In that meeting it was resolved to remove Mr. Shinde as the Group Leader and to appoint Mr. Ajay Choudhari. The resolution was signed by Mr. Thackeray in his capacity as party president on the official letterhead of the Shiv Sena Legislative Party. The respondents contend that on the same day, 21 June 2022, a separate meeting of the real Shiv Sena Legislative Party was held in which thirty‑four members issued a resolution (i) reaffirming that Mr. Shinde, who was appointed as the Leader on 31 October 2019, continued to be Leader; and (ii) cancelling the appointment of Mr. Sunil Prabhu as the Chief Whip and appointing Mr. Bharat Gogavale in his place. The petitioners contend that this letter was issued on 22 June 2022 and has been back‑dated as 21 June 2022., By an order dated 21 June 2022, the Deputy Speaker, who was then discharging the functions of the Speaker, approved the request to appoint Mr. Ajay Choudhari as the Leader of the Shiv Sena Legislative Party. On 3 July 2022, the election for the post of Speaker was held and Mr. Rahul Narwekar, the candidate of the Bharatiya Janata Party, was elected as Speaker. On the same day, the Speaker took cognizance of the resolution passed by the thirty‑four members belonging to the faction led by Mr. Shinde and appointed Mr. Shinde as the Leader and Mr. Bharat Gogavale as the Chief Whip. The Deputy Secretary of the Maharashtra Legislative Assembly issued a communication stating that the Speaker had recognised a new Whip and a new Leader, referencing the letter dated 31 October 2019, and cancelling the approval granted to Mr. Ajay Choudhari., The communication recognises that the faction led by Mr. Shinde objected to the Deputy Speaker’s communication of replacing Mr. Shinde as Leader by a resolution dated 22 June 2022 and appreciates the objection to the appointment of Mr. Choudhari. We proceed on the assumption that the objection by the faction led by Mr. Shinde was received by the Speaker on 22 June 2022, as the Speaker’s communication notes this date., The Speaker was aware of the emergence of two factions in the legislature party on 3 July 2022 when he appointed a new Whip and a new Leader, because the respondents’ resolution specifically mentions that a split had occurred due to prevailing dissatisfaction among some Members of Legislative Assembly of the Shiv Sena. The existence of two resolutions appointing two different Whips and two different Leaders should have led the Speaker to infer that there were two factions of the Shiv Sena. The Speaker, on taking cognizance of the resolution passed by the faction led by Mr. Shinde, did not attempt to identify which of the two persons nominated (Mr. Prabhu or Mr. Gogavale) were authorised by the political party. In such a contentious situation, the Speaker should have conducted an independent inquiry based on the rules and regulations of the political party to identify the Whip authorised by the Shiv Sena political party. For the reasons detailed above, the Speaker must only recognise the Whip appointed by the political party. The decision of the Speaker recognising Mr. Gogavale as the Chief Whip of the Shiv Sena is illegal because the recognition was based on the resolution of a faction of the Shiv Sena Legislative Party without undertaking an exercise to determine if it was the decision of the political party., Rule 2(f) defines Leader in relation to the legislature party as a member of the party chosen by it as its leader. The term ‘party’ is ambiguous because it is not preceded by either ‘political’ or ‘legislature’. It may be interpreted to mean legislature party, since the definition clause defines a Leader in relation to the legislature party and then uses the phrase ‘party’. Alternatively, it could also take the meaning of political party because ‘party’ in common parlance means political party., Under Paragraph 8(1)(b) of the Tenth Schedule and Rule 3(5) of the 1986 Rules, the Leader of the legislature party is required to inform the Speaker if the political party has condoned the prohibitory act under Paragraph 2(1)(b) of the Tenth Schedule. Thus, the Leader of the legislature party is the link between the political party and the legislative assembly.
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If the interpretation of the respondents is accepted, the action of the leader condoning a Member of Legislative Assembly's prohibitory conduct would not reflect the voice of the political party and would instead reflect the voice of the legislature party. This would be contrary to the manner in which the Tenth Schedule is intended to operate. The manner in which the Tenth Schedule would then operate would not effectively prevent or provide a solution to the constitutional sin of defection., On 21 June 2022, there was no material on record before the Deputy Speaker for him to doubt that the resolution of SSLP dated 21 June 2022 (appointing Mr. Ajay Choudhari as the Leader of the SSLP) was de hors the political party, or that two factions of the party had emerged. The resolution was signed by Mr. Thackeray in his capacity as the party president much like the resolution appointing the Whip and Leader in 2019. This makes it evident that Mr. Thackeray issued the communication on behalf of the political party. Thus, the decision of the Deputy Speaker recognising Mr. Ajay Choudhari as the Whip in place of Mr. Eknath Shinde is valid., However, the resolution passed by SSLP on 22 June 2022 brought to the attention of the Speaker that it was passed by a faction of the SSLP. Thus, the Speaker by recognising the action of a faction of the SSLP without determining whether they represented the will of the political party acted contrary to the provisions of the Tenth Schedule, the 1986 Rules, and the Act of 1956. The decision of the Speaker recognising Mr. Shinde as the Leader is illegal., The Speaker must recognize the Whip and the Leader who are duly authorised by the political party with reference to the provisions of the party constitution, after conducting an enquiry in this regard and in keeping with the principles discussed in this judgement., Time and again, the parties before the Supreme Court of India asserted that they were the real Shiv Sena. In cases such as the present one, the answer to this question will have implications in the disqualification proceedings under the Tenth Schedule as well as proceedings for the allotment of a symbol under the Symbols Order., The petitioners argue that the Supreme Court of India ought to lay down a constitutional sequence in order to harmonise proceedings for disqualification under the Tenth Schedule, the notice of intention to move a resolution for the removal of the Speaker under Article 179(c) of the Constitution, and the allotment of an election symbol under Paragraph 15 of the Symbols Order., Since we have referred the issues arising from the issuance of a notice of intention to move a resolution for the removal of the Speaker under Article 179(c) to a larger Bench, it only remains for us to consider the manner in which the remaining two proceedings ought to be harmonized., The purpose of the Tenth Schedule and the effect of disqualification. As discussed extensively in this judgement as well as in other judgements of the Supreme Court of India, the purpose of the Tenth Schedule is to disincentivize and penalize the constitutional sin of defection. A violation of the anti‑defection law results in a member of the House being: a. Disqualified from the House; b. Disqualified from holding any remunerative political post for the duration of the period commencing from the date of their disqualification till the date on which the term of their office as a member of the House would expire or till the date on which they contest election to a House and are declared elected, whichever is earlier; and c. Disqualified from being appointed as a Minister for the duration of the period commencing from the date of their disqualification till the date on which the term of their office as a member of the House would expire or till the date on which they contest election to a House and are declared elected, whichever is earlier., These consequences ensure that a member of the House is unable to reap the fruits of defection within the House. Significantly, the Tenth Schedule does not have a bearing on the status of a disqualified member of a House vis‑vis their political party. In other words, if a member incurs disqualification under the Tenth Schedule, it does not automatically result in their expulsion from the political party to which they belong. It is up to the political party and its internal processes to determine whether to expel a member., The purpose of the Symbols Order and the effect of the decision under Paragraph 15. The Election Commission of India issued the Symbols Order in 1968 in exercise of the powers conferred by Article 324 of the Constitution read with Section 29A of the Representation of the People Act 1951 and Rules 5 and 10 of the Conduct of Elections Rules 1961. The Symbols Order governs the reservation and allotment of symbols to candidates for the purpose of elections. The preamble to the Symbols Order states that it is: An Order to provide for specification, reservation, choice and allotment of symbols at elections in Parliamentary and Assembly Constituencies, for the recognition of political parties in relation thereto and for matters connected therewith., Political parties are classified into recognised political parties and unrecognised political parties under the Symbols Order. Recognised political parties are further classified into National Parties and State Parties. The Election Commission of India recognizes political parties as National Parties or State Parties if they satisfy the requirements prescribed in the Symbols Order., The Election Commission of India allots a symbol to every candidate who contests elections, in accordance with the Symbols Order. Some symbols are called reserved symbols because they are reserved for a recognised political party and are exclusively allotted to candidates set up by that party and the remaining symbols are called free symbols. The political party is granted recognition under the Symbols Order based on the total number of candidates returned to the Legislative Assembly or the total percentage of votes secured by the political party. Candidates set up by recognised political parties must contest elections by using the symbol that is reserved for their party, and no other symbol. In contrast, candidates other than those who are set up by national or state political parties and who do not fall under certain special categories may choose and will be allotted a free symbol. Reserved symbols are not allotted to candidates who are not set up by the political party for which that symbol has been reserved., From this, it is evident that the purpose of the Symbols Order is: a. To provide a uniform procedure for the recognition of political parties; and b. To provide a uniform and just system for the allotment of symbols for candidates to contest in elections., The raison d'être for the Symbols Order is the fact that political parties (and independent candidates) rely on the symbol allotted to them while campaigning to the electorate. To a significant extent, the electorate also associates the symbol allotted to a party with the party itself and with the candidates set up for election by that party. The association between the party, the candidates set up for election by that party, and the symbol is strengthened with the passage of time. This association becomes significant in the polling booth when voters press the button on the Electronic Voting Machine to register their vote for a particular candidate because the symbol is depicted on or next to the button. The association is doubly significant for voters who have not had the opportunity to attain literacy and who rely solely on symbols to cast their vote. In this way, symbols are crucial to the contest of elections. It is therefore not surprising that when rival factions of a political party emerge, both or all such factions vie for the symbol allotted to that party., The Election Commission of India is empowered to adjudicate disputes between rival sections or groups of a recognised political party, each of whom claims to be that party, under Paragraph 15 of the Symbols Order. When such a dispute arises, the Election Commission of India will decide if one of the rival sections or groups is that recognised political party. In the alternative, it may decide that none of the rival groups is that recognised political party. The decision of the Election Commission of India is to be based on a consideration of all the available facts and circumstances as well as the representations advanced by the rival groups and other persons who desire to be heard. Paragraph 15 is reproduced below: \Power of Commission in relation to splinter groups or rival sections of a recognised political party. When the Commission is satisfied on information in its possession that there are rival sections or groups of a recognised political party each of whom claims to be that party, the Commission may, after taking into account all the available facts and circumstances of the case and hearing such representatives of the sections or groups and other persons as desire to be heard, decide that one such rival section or group or none of such rival sections or groups is that recognised political party and the decision of the Commission shall be binding on all such rival sections or groups.\, The natural consequence of the decision of the Election Commission of India is that the group that is recognised as constituting the political party is allotted the symbol that was reserved for that political party. Prior to 1997, the faction which was not granted the symbol of the political party (and by corollary was not recognised as the political party) was also recognised as a National Party or a State Party under the Symbols Order. The Election Commission of India departed from this practice in 1997. The Election Commission of India has since held that the faction that is not recognised as the political party in the proceedings under Paragraph 15 cannot be automatically recognised as a State or National Party because its members were not elected on the ticket of the newly formed political party but on the ticket of the political party from which their faction emerged. The unsuccessful group must now apply for the registration of its political party under Section 29A of the Representation of the People Act 1951. The Election Commission of India will allot a symbol to the political party when it is recognised as a State or National Party under the Symbols Order., The essence of the decision of the Election Commission of India cannot be understood as solely a determination as to who is entitled to the symbol for the purposes of election. While that is the outcome of the decision under Paragraph 15, the substance of the decision is the determination as to which of the groups is the lifeblood of the recognised political party. In order to reach a determination as to which group is entitled to the symbol, it becomes necessary for the Election Commission of India to adjudicate which group is that political party itself. In other words, the Election Commission of India determines who the real political party is and the symbol is allotted as a consequence of this decision., In Sadiq Ali (supra), the Supreme Court of India held that: The allotment of a symbol to the candidates set up by a political party is a legal right and in case of split, the Commission has been authorized to determine which of the rival groups or sections is the party which was entitled to the symbol. The Commission in resolving this dispute does not decide as to which group represents the party but which group is that party. If it were a question of representation, even a small group according to the Constitution of the organisation may be entitled to represent the party. Where, however, the question arises as to which of the rival groups is the party, the question assumes a different complexion and the numerical strength of each group becomes an important and relevant factor. It cannot be gainsaid that in deciding which group is the party, the Commission has to decide as to which group substantially constitutes the party., Paragraph 15 stipulates that the Election Commission of India must take into account all the available facts and circumstances of the case and hear representatives of the rival groups and other persons who wish to be heard. However, neither Paragraph 15 nor the other provisions of the Symbols Order specify the test which is to be applied by the Election Commission of India in arriving at its decision as to who the political party is. Similarly, no test is excluded from application by the Election Commission of India. This means that the Election Commission of India is free to fashion a test which is suited to the facts and complexities of the specific case before it., In Sadiq Ali (supra), the Supreme Court of India considered a few of the different tests that were capable of being applied in proceedings under Paragraph 15. In that case, two rival groups, Congress O and Congress J, emerged from the Indian National Congress. While adjudicating their competing claims under Paragraph 15, the Election Commission of India considered the following tests: a. A test analysing the provisions of the constitution of the party; b. A test assessing which of the two rival groups adhered to the aims and objects of the party as incorporated in its constitution; and c. A test evaluating which of the two rival groups enjoyed a majority in the legislature (i.e., the Houses of Parliament as well as the Legislative Assemblies of States) and in the organisational wing of the party., The Election Commission of India declined to apply the first test because each group had expelled members from the other group. It was of the opinion that the second test was not suited to the facts because neither Congress O nor Congress J had openly repudiated the aims and objects of the constitution of the party. The Election Commission of India held that the third test was most appropriate to the facts. Accordingly, it assessed which of the two groups constituted a majority in Parliament and in the State Legislatures, and in the organisational wing of the party. It found that Congress J enjoyed a majority in both the organisational wing and the legislative wing, and that it was entitled to utilise the symbol which had been reserved for the Indian National Congress., On appeal, the Supreme Court of India upheld the decision of the Election Commission of India and ruled that the test of majority was a very valuable test in the facts and circumstances of the case: As Congress is a democratic organisation, the test of majority and numerical strength, in our opinion, was a very valuable and relevant test. Whatever might be the position in another system of government or organisation, numbers have a relevance and importance in a democratic system of government or political set‑up and it is neither possible nor permissible to lose sight of them. Indeed it is the view of the majority which in the final analysis proves decisive in a democratic set‑up. It may be mentioned that according to Paragraph 6 of the Symbols Order, one of the factors which may be taken into account in treating a political party as a recognised political party is the number of seats secured by that party in the House of the People or State Legislative Assembly or the number of votes polled by the contesting candidates set up by such party. If the number of seats secured by a political party or the number of votes cast in favour of the candidates of a political party can be a relevant consideration for the recognition of a political party, one is at a loss to understand how the number of seats to be irrelevant. All that this Supreme Court of India is concerned with is whether the test of majority or numerical strength which has been taken into account by the Commission is in the circumstances of the case a relevant and germane test. On that point, we have no hesitation in holding that in the context of the facts and circumstances of the case, the test of majority and numerical strength was not only germane and relevant but a very valuable test., Subsequent to the decision in Sadiq Ali (supra), the Election Commission of India consistently applied the test of majority in the legislative and organisational wings of the party to disputes under Paragraph 15. However, neither the Symbols Order nor Sadiq Ali (supra) indicates that this is the only or even the primary test to be applied while determining disputes under Paragraph 15. The Election Commission of India may apply a test which is suitable to the facts of the particular dispute before it. It need not apply the same test to all disputes, regardless of the suitability of the test to those facts and circumstances., In the present case, in late June 2022 and in the first week of July 2022, members of each faction filed petitions for the disqualification of members of the opposing faction under the Tenth Schedule. On 19 July 2022, Mr. Shinde filed a petition before the Election Commission of India under Paragraph 15 of the Symbols Order, claiming that the faction led by him constituted the real Shiv Sena and that it should therefore be allotted the symbol of the Shiv Sena (the bow and arrow)., When the Tenth Schedule and the Symbols Order are invoked concurrently, complications may arise, including in cases such as the present one. If the Election Commission of India applies the test of majority, it will be required to consider (among other things) which of the two factions enjoys a majority in the Maharashtra State Legislature. Therefore, which faction has a majority in the House will have some bearing on the outcome of the proceedings before the Election Commission of India. Whether or not a particular faction has a majority in the legislature will depend on whether members from that faction have incurred disqualification. For example, we may illustratively consider a case where Party X has a hundred seats in the Legislative Assembly of a state. Two factions, Group A and Group B, emerge. The former consists of sixty MLAs and the latter consists of the remaining forty. Members of each group file disqualification petitions against members of the other group. The Election Commission of India is called upon to decide which group is Party X under Paragraph 15 of the Symbols Order. In terms of the law as it currently stands, there are two possible outcomes: a. The Election Commission of India renders its decision prior to the Speaker. It observes that Group A enjoys a majority in the legislature. This has a significant bearing on its decision although it is not the only factor which is considered. Group A is adjudicated to be Party X and is awarded the symbol; or b. The Speaker renders their decision prior to the Election Commission of India. They disqualify some or all the members of Group A for violating the anti‑defection law. While adjudicating the petition under Paragraph 15 of the Symbols Order, the Election Commission of India (after taking into account the disqualification incurred by some or all of Group A) notes that Group A does not enjoy a majority in the legislature. Once again, this has a significant bearing on its decision although it is not the only factor which is considered. Group B is adjudicated to be Party X and is awarded the symbol., The outcome of the dispute before the Election Commission of India may change depending on the outcome of the disqualification petitions. It is precisely this complication which the petitioners seek to guard against. The petitioners urge that when proceedings under Paragraph 15 of the Symbols Order and the Tenth Schedule have arisen concurrently, this Supreme Court of India ought to lay down a constitutional sequence for the proceedings. They submit that proceedings under the Tenth Schedule must be adjudicated before the dispute under Paragraph 15 of the Symbols Order is determined, and that a symbol can be allotted only after the final adjudication of the Tenth Schedule proceedings., The contentions of the petitioners cannot be brushed aside. If the faction which enjoys a majority in the House is disqualified soon after being adjudicated to be the political party, the very foundation of their claim of being the political party no longer subsists. Even if they are not disqualified, the foundation of their claim (i.e., a legislative majority) is still on uncertain ground at the time of adjudication. This is not a constitutionally desirable outcome., This Supreme Court of India cannot accept the solution proposed by the petitioners and lay down a constitutional sequence. To hold that the Election Commission of India is barred from adjudicating petitions under Paragraph 15 of the Symbols Order until the final adjudication of the disqualification petitions under the Tenth Schedule would be, in effect, to indefinitely stay the proceedings before the Election Commission of India. This is because an order of the Speaker attains finality only after all avenues for appeal have been exhausted or are barred by the passage of time. The time that it would take for an order of the Speaker to attain finality is uncertain. The Election Commission of India is a constitutionally entrenched institution which is entrusted with the function of superintendence of and control over the electoral process. The Election Commission of India, which is a constitutional authority, cannot be prevented from performing its constitutional duties for an indefinite period of time. Proceedings before one constitutional authority cannot be halted in anticipation of the decision of another constitutional authority., This Supreme Court of India must also be alive to the possibility of the death of a political party in the intervening period, or further complications that may arise if elections are announced during the period when proceedings before the Election Commission of India are stayed, if a stay were to be granted. When a dispute under Paragraph 15 of the Symbols Order is pending adjudication, it is standard practice for the Election Commission of India to freeze the symbol reserved for that political party and allot interim symbols to the rival groups. If the reserved symbol is frozen for an inordinately long period of time and the interim symbols must be resorted to for every by‑election and election, it may well end the association between the reserved symbol and the political party in the minds of the electorate. This will no doubt be a blow to the political party which is lawfully entitled to the symbol reserved for its use. Therefore, the Election Commission of India must render a decision as to which group constitutes that political party., In arriving at this decision, it is not necessary for the Election Commission of India to rely on the test of majority in the legislature alone. In cases such as the present one, it would be futile to assess which group enjoys a majority in the legislature. Rather, the Election Commission of India must look to other tests in order to reach a conclusion under Paragraph 15 of the Symbols Order. The other tests may include an evaluation of the majority in the organisational wings of the political party, an analysis of the provisions of the party constitution, or any other appropriate test., When this Supreme Court of India decided the petition in Sadiq Ali (supra), the Tenth Schedule did not form a part of the Constitution. There was no way for this Supreme Court of India to have anticipated the complexities that could arise on its inclusion while deciding which test was most appropriate. Regardless, this Supreme Court of India did not hold that the test of majority in the legislature was exclusively appropriate or even that it was the primary test. It instead found that the test was suited to the facts and circumstances of that case. As noted in the preceding paragraphs, nothing in the Symbols Order mandates the use of a particular test to the exclusion of other tests. The Election Commission of India must apply a test which is best suited to the unique facts and circumstances of the case before it. The parties in the dispute before the Election Commission of India are free to propose a suitable test and the Election Commission of India may either apply one of the tests proposed or fashion a new test, as appropriate. This Supreme Court of India observed in Sadiq Ali (supra) that the test of legislative majority was a relevant test under Paragraph 15 proceedings in that case for two reasons: first, the Indian National Congress was according to the court a democratic organisation, and numbers matter in such organisations; and second, the total number of seats secured by the political party in the legislative assembly is a relevant factor for the recognition of a political party as a State or a National Party. When legislators are disqualified under the Tenth Schedule, the basis of recognition of the political party under the Symbols Order and correspondingly, one of the reasons for using the test of legislative majority itself becomes diluted. Thus, it is not appropriate to confine the Election Commission of India to the singular test of legislative majority in such situations., In Sadiq Ali (supra), this Supreme Court of India noted that one of the tests considered by the Election Commission of India was an assessment of which of the two rival groups adhered to the aims and objects of the party as incorporated in its constitution. This Supreme Court of India did not have occasion to express its opinion on the validity of this test because it found that the test of majority was relevant to the facts in Sadiq Ali (supra). Since we have left it open to the Election Commission of India to apply a test other than that which evaluates which of the groups constitute a majority, it becomes necessary to consider whether the alternatives are viable., An evaluation of whether rival groups are adhering to the aims and objects of the party as incorporated in its constitution, and which of the rival groups is more in consonance with such aims and objects, is an entirely subjective exercise. Different groups may adopt different paths or methods to achieve the same object. It would not be appropriate for the Election Commission of India to accord its stamp of approval to the routes or methods chosen by one group over those chosen by another group. This would amount to entering the political arena. For example, one of the aims detailed in the constitution of a party could be that it will work towards attaining economic justice. Two rival sections of this party may emerge. The first group may happen to advocate for direct benefit transfers whereas the second group may be of the belief that subsidising the cost of certain products is a preferable alternative. The exercise of the Election Commission of India in determining which of these methods (and by extension, which of the rival groups) is more suited to attaining economic justice is subjective. Although this is a simplified example, it is illustrative of the manner in which the same goal can be sought to be attained by different routes, and the Election Commission of India while making such an assessment would be rendering its opinion without any objective basis. The Election Commission of India must remain a neutral body and refrain from passing a subjective judgement on the approaches preferred by the rival factions., At this stage, a question may arise as to whether the decision of the Election Commission of India under the Symbols Order must be consistent with the decision of the Speaker under the Tenth Schedule. The answer is no. This is because the decision of the Speaker and the decision of the Election Commission of India are each based on different considerations and are taken for different purposes., The decision of the Election Commission of India has prospective effect. A declaration that one of the rival groups is that political party takes effect prospectively from the date of the decision. In the event that members of the faction which has been awarded the symbol are disqualified from the House by the Speaker, the members of the group which continues to be in the House will have to follow the procedure prescribed in the Symbols Order and in any other relevant laws for the allotment of a fresh symbol to their group., The disqualification proceedings before the Speaker cannot be stayed in anticipation of the decision of the Election Commission of India. In cases where a petition under Paragraph 15 of the Symbols Order is filed after the alleged commission of prohibitory conduct, the decision of the Election Commission of India cannot be relied upon by the Speaker for adjudicating disqualification proceedings. If the disqualification petitions are adjudicated based on the decision of the Election Commission of India in such cases, the decision of the Election Commission of India would have retrospective effect. This would be contrary to law., When the conduct prohibited under the Tenth Schedule is alleged to be committed, there is only one political party.
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As discussed in the preceding segments of this judgement, this necessitates the Speaker prima facie determining who the political party was at the time of the act which is alleged to attract the provisions of the Tenth Schedule. The decision of the Speaker that a member of the House is disqualified for voluntarily giving up the membership of the political party would only disqualify them from the House; it would not lead to an automatic expulsion of the member from the political party. Consequently, the submission of the petitioners that a legislator who has incurred disqualification under Paragraph 2 of the Tenth Schedule has no locus to institute a petition under Paragraph 15 of the Symbols Order cannot be accepted. We accordingly answer the question referred to us as noted in Paragraph 32(j) of this judgement., In the proceedings instituted by Mr Shinde under Paragraph 15 of the Symbols Order, the Election Commission of India awarded the symbol bow and arrow reserved for the Shiv Sena to the faction led by him. The petitioners challenged this order before the Supreme Court of India. By an order dated 22 February 2023, the Supreme Court of India issued notice. We have not expressed any opinion on the merits of that case., The impact of the deletion of Paragraph 3 of the Tenth Schedule. The Tenth Schedule to the Constitution was inserted by the Constitution (Fifty‑second Amendment) Act, 1985. The Tenth Schedule sought to provide a remedy to the constitutional sin of defection. Defection is the act of members of either House of the state legislature or of either House of Parliament shifting allegiances by exiting the political party on whose ticket they went to the polls and joining another political party. The years prior to the insertion of the Tenth Schedule witnessed innumerable defections in political parties at both the Union and State level, giving rise to the need for an anti‑defection law in the country., The Tenth Schedule penalises defection by disqualifying any member of the House who is found to have indulged in the prohibited act. Paragraph 2(1)(a) stipulates that a member of a House belonging to any political party shall be disqualified for being a member of the House if they have voluntarily given up their membership of such political party. Paragraph 2(1)(b) provides that a member shall be disqualified if they vote or abstain from voting in the House contrary to any directions issued by the political party to which they belong, or by any person authorised by it for that purpose., Paragraph 6 of the Tenth Schedule entrusts the Speaker of the House with the authority to adjudicate disqualification petitions. While adjudicating a disqualification petition, the Speaker must also consider any defence raised by the member against whom the petition has been filed. The Tenth Schedule, as it currently stands, specifies five defences which a member may take recourse to, to shield themselves from the consequences of the anti‑defection law: (a) a member will not be disqualified under Paragraph 2(1)(b) if they have obtained the prior permission of their political party to vote or abstain from voting contrary to the directions issued by such political party; (b) a member is protected from being disqualified under Paragraph 2(1)(b) if the political party to which they belong has condoned their actions in voting or abstaining from voting contrary to the directions issued by such political party, within fifteen days from such voting or abstention; (c) a member will not be disqualified under Paragraph 2(1)(a) or Paragraph 2(1)(b) where their original political party merges with another political party and they claim that they and any other members of their original political party have become members of such other political party or of a new political party formed by the merger, provided that not less than two‑thirds of the members of the legislature party concerned have agreed to the merger; (d) where the original political party of a member is found to have merged with another political party under Paragraph 4(1)(a), members of the original political party are protected from being disqualified if they have not accepted such merger and have opted to function as a separate group; and (e) members who have been elected to the office of the Speaker or the Deputy Speaker (or the Chairman or the Deputy Chairman as the case may be) in Parliament or in the Legislative Assemblies of States are exempted from disqualification under the Tenth Schedule if they voluntarily give up the membership of their political party by reason of their election to such office and do not re‑join the political party or become a member of another political party so long as they continue to hold such office. Further, they are not disqualified if they re‑join the political party which they gave up membership of, after ceasing to hold office., Prior to 2003, a sixth defence under Paragraph 3 was available to members against whom disqualification petitions were filed. Paragraph 3 stipulated that a member of the House would not be subject to disqualification if there was a split in their original political party. It was omitted from the Tenth Schedule by the Constitution (Ninety‑first Amendment) Act, 2003. Before its omission, Paragraph 3 read as follows: 'Disqualification on ground of defection shall not apply in case of split. Where a member of a House makes a claim that he and any other members of his legislature party constitute the group representing a faction which has arisen as a result of a split in his original political party and such group consists of not less than one‑third of the members of such legislature party, (a) he shall not be disqualified under sub‑paragraph (1) of Paragraph 2 on the ground (i) that he has voluntarily given up his membership of his original political party; or (ii) that he has voted or abstained from voting in such House contrary to any direction issued by such party or by any person or authority authorised by it for that purpose without obtaining the prior permission of such party, person or authority and such voting or abstention has not been condoned by such party, person or authority within fifteen days from the date of such voting or abstention; and (b) from the time of such split, such faction shall be deemed to be the political party to which he belongs for the purposes of sub‑paragraph (1) of Paragraph 2 and to be his original political party for the purposes of this paragraph.' Paragraph 5 of the Tenth Schedule confirms that the defence of a split is no longer available to members who face disqualification proceedings., The question before the Supreme Court of India is what is the impact of the deletion of Paragraph 3 of the Tenth Schedule. This question has arisen in the context of both factions of the Shiv Sena claiming to be the real Shiv Sena. In effect, this points to the existence of a split within the Shiv Sena Legislative Party. However, no faction or group can argue that they constitute the original political party as a defence against disqualification on the ground of defection., The inevitable consequence of the deletion of Paragraph 3 from the Tenth Schedule is that the defence of a split is no longer available to members who face disqualification proceedings. In cases where a split has occurred in a political party or in a legislature party, members of neither faction may validly raise the defence that they are the political party in the event that each faction files petitions for the disqualification of members of the other faction. The defence sought to be availed of must be found within the Tenth Schedule as it currently stands., Members of multiple groups or factions can all continue as members of the House if the requirements of Paragraph 4(1) of the Tenth Schedule are satisfied. Two or more factions of a political party can both remain in the House if one of the factions has opted to merge with another political party in terms of Paragraph 4(1)(a) and the other faction has chosen not to accept the merger. However, in cases where a split has occurred, and members of one of the factions are found to have satisfied the conditions in Paragraph 2(1) and are also unable to establish any of the five defences detailed above, they would stand disqualified. The percentage of members in each faction is irrelevant to the determination of whether a defence to disqualification is made out., Regardless of the defence available to members who face disqualification proceedings, the Speaker may be called upon to determine who the real political party is while adjudicating disqualification petitions under Paragraph 2(1)(a) where two or more factions of the political or legislature party have arisen. The effect of the deletion of Paragraph 3 is that both factions cannot be considered to constitute the original political party. To determine which (if any) of the members of the party have voluntarily given up membership of the political party under Paragraph 2(1)(a), it is necessary first to determine which of the factions constitute the political party. This determination is a prima facie determination and will not impact any other proceedings, including the proceedings under Paragraph 15 of the Symbols Order., In arriving at their decision, the Speaker must consider the constitution of the party as well as any other rules and regulations which specify the structure of the leadership of the party. If the rival groups submit two or more versions of the party constitution, the Speaker must consider the version which was submitted to the Election Commission of India before the rival factions emerged, i.e., the version submitted with the consent of both factions. This will obviate a situation where both factions attempt to amend the constitution to serve their own ends. Further, the Speaker must not base the decision on a blind appreciation of which group possesses a majority in the Legislative Assembly; the structure of leadership outside the Legislative Assembly is also a relevant consideration., The deletion of Paragraph 3 impacts the proceedings under Paragraph 2(1)(b) as well. When there are two Whips appointed by two or more factions of the political party, the Speaker decides which of the two Whips represents the political party. Thus, the adjudication of the Speaker on whether a member must be disqualified under Paragraph 2(1)(b) depends on the Speaker’s recognition of one of the Whips. We accordingly answer the question referred to us as noted in Paragraph 32(f) of this judgement., The exercise of discretion by the Governor in directing Mr Thackeray to face a floor test. The facts relevant to the determination of this issue have been narrated in the introductory part of this judgement. To recount, thirty‑four Members of Legislative Assembly of the Shiv Sena met and passed a resolution on 21 June 2022. The resolution reaffirmed that Mr Eknath Shinde continues to be the Group Leader of the Shiv Sena Legislative Party, cancelled the appointment of Mr Sunil Prabhu as the Chief Whip, and appointed Mr Bharat Gogawale in his place. The signatories also expressed their discontent and dissatisfaction with the Shiv Sena for forming the Government in alliance with the Indian National Congress and the Nationalist Congress Party. Separately, on 28 June 2022, the Governor received letters from the Leader of Opposition at the time, Mr Devendra Fadnavis, and seven Members of Legislative Assembly who were elected as independent candidates requesting him to direct Mr Thackeray to prove his majority on the floor of the House. On the same day, the Governor issued the communication impugned in Writ Petition (Civil) 470 of 2022 to Mr Thackeray, directing him to prove his majority on the floor of the House on 30 June 2022. Mr Thackeray resigned on 29 June 2022 after the Supreme Court of India declined to stay the trust vote. Thus, Writ Petition (Civil) 470 of 2022 has been rendered infructuous. The Supreme Court of India is no longer called upon to set aside the letter dated 28 June 2022. However, the question of whether the Governor exercised the discretion vested in him by the Constitution in accordance with law is required to be addressed by the Supreme Court of India in view of the enormity of the responsibility entrusted with the gubernatorial office as well as the significance of the consequences which follow from the exercise of such discretion., The letter sent by the Governor to the then Chief Minister indicates that he relied on the following circumstances in arriving at the conclusion that a floor test was required: (a) a letter received from the then Leader of Opposition stating that Mr Thackeray no longer enjoyed the confidence of the House; (b) letters received from seven independent Members of Legislative Assembly requesting the Governor to direct Mr Thackeray to prove his majority on the floor of the House; (c) the resolution dated 21 June 2022 signed by thirty‑four members of the Shiv Sena Legislative Party stating that they were dissatisfied with the Shiv Sena for forming an alliance with the Indian National Congress and the Nationalist Congress Party; (d) a letter dated 21 June 2022 addressed by Mr Shinde to the Deputy Speaker stating that the appointment of Mr Ajay Choudhari as the Leader of the Shiv Sena Legislative Party was illegal; and (e) a letter dated 25 June 2022 received from thirty‑eight members of the Shiv Sena Legislative Party stating that the security provided to them by the State Government had been withdrawn illegally and that their lives were in danger., Based on these materials, the Governor (in the letter dated 28 June 2022) concluded that Mr Thackeray had lost the confidence of the House: a majority of the Shiv Sena Members of Legislative Assembly have given a clear indication on behalf of the Shiv Sena Legislative Party that they intend to exit from the Maha Vikas Aghadi Government and that the Governor was aware that Mr Thackeray was trying to win over his Members of Legislative Assembly and cadre by means which are not democratic. The Governor therefore was confident that Mr Thackeray and his Government had lost the trust of the House and the Government was in minority. The Governor then called upon Mr Thackeray to prove his majority on the floor of the House on 30 June 2022., The Governor constitutes an integral part of a State Legislature. The executive power of the State is vested in the Governor. Article 163 requires the Governor to exercise his legislative and executive power on the aid and advice of the Council of Ministers. Article 163(2) empowers the Governor to exercise discretionary powers when required by or under the Constitution. Article 174(1) provides that the Governor shall from time to time summon the House to meet at such time and place as he thinks fit. Article 175(1) empowers the Governor to address the House. Article 175(2) permits the Governor to send messages to the House whether with respect to a pending Bill or otherwise., The power of the Governor to call for a floor test. In S R Bommai (supra) the Janata Party formed the government in Karnataka under the leadership of S R Bommai in August 1988. Soon after, the Janata Party and Lok Dal (B) merged into a new party called Janata Dal. In April 1989, seventeen Janata Dal legislators wrote to the Governor withdrawing their support to the government. On 19 April 1989, the Governor sent a report to the President stating that the Chief Minister had lost the majority in the Assembly and recommended invocation of President's rule under Article 356(1) of the Constitution. On 20 April 1989, the Chief Minister offered to prove majority on the floor of the House. However, on the same day the Governor sent another report to the President reiterating that the Chief Minister had lost the confidence of the majority of the House and recommended action under Article 356(1). Accordingly, on 21 April 1989, the President issued a proclamation, dismissed the State Government, and dissolved the Assembly., The Supreme Court held that the Governor cannot decide whether the Council of Ministers has lost the confidence of the House; this has to be determined on the floor of the House. The Court approvingly referred to the Report of the five‑member Committee of Governors which recommended that when a Governor is satisfied by whatever process or means that the Government no longer enjoys the support of the majority, he should ask the Chief Minister to prove his majority on the floor of the Assembly. Justice B P Jeevan Reddy observed that loss of confidence by a Government is an objective fact which has to be ascertained only on the floor of the House: 'The Constitution does not create an obligation that the political party forming the ministry should necessarily have a majority in the Legislature. Minority Governments are not unknown. What is necessary is that the Government should enjoy the confidence of the House. This aspect does not appear to have been kept in mind by the Governor. Secondly and more importantly, whether the Council of Ministers has lost the confidence of the House is not a matter to be determined by the Governor or for that matter anywhere else except the floor of the House. The principle of democracy underlying our Constitution necessarily means that any such question should be decided on the floor of the House. The House is the place where the democracy is in action. It is not for the Governor to determine the said question on his own or on his own verification. This is not a matter within his subjective satisfaction. It is an objective fact capable of being established on the floor of the House.', In Shivraj Singh Chouhan (supra), the government in the State of Madhya Pradesh was formed by the Indian National Congress. During the term of the Assembly, Members of Legislative Assembly of the Bharatiya Janata Party submitted resignation letters of twenty‑two legislators from the Indian National Congress to the Speaker. The Speaker accepted six of the twenty‑two resignations. The opposition in the Assembly wrote a letter to the Governor drawing attention to these resignations. The Governor directed a trust vote to be carried out. The action of the Governor was assailed before the Supreme Court of India. The Court held that the constitutional scheme vested the Governor with the power and discretion to call for a trust vote in a running Assembly and that such a decision is subject to judicial review. The Court ruled that the decision to call for a floor test should be based on objective material and reasons which are relevant and germane to the exercise of discretion, and not extraneous to it. The Court emphasized that the Governor should not use his discretionary power to destabilise or displace democratically elected governments., The Court also observed that unless there are exigent and compelling circumstances, the Governor should not prevent the ordinary legislative process of a no‑confidence motion from running its due course. In Shivraj Singh Chouhan (supra), the Speaker accepted the resignations of only six members who were Ministers of the incumbent Government, and adjourned the Assembly for thirteen days. It was in view of these facts that the Court held there was objective material and relevant reasons for the Governor to call for a floor test., The power of the Governor to summon the House under Article 174 must be exercised on the aid and advice of the Council of Ministers. Rule 95 of the Maharashtra Legislative Assembly Rules stipulates that a member who wishes to move a motion of no‑confidence in the Council of Ministers shall do so by a notice in writing. If the motion is admitted by the Speaker and the Assembly is in session, leave to move the motion must be granted not later than two days from the date of the notice. However, if the notice is received when the Assembly is not in session, leave to move the motion shall be granted within two days from the commencement of the session., To avert a no‑confidence motion, the incumbent Government may not advise the Governor to convene a session of the Assembly, and the Speaker may adjourn the sitting of the House to prevent voting for granting leave to move a motion of no‑confidence. If the Speaker and the Government attempt to circumvent a no‑confidence motion, the Governor would be justified in exercising the power under Article 174 without the aid and advice of the Council of Ministers., The Constitution and the system of governance that it provides is based on representative democracy. This means that each citizen has an active and participatory role in how the governments at various levels function. The elected representatives of the people act on their behalf by enacting laws and overseeing the implementation of policies. Direct and indirect elections and the candidates who are elected are indispensable to our model of representative democracy. Hence, the Constitution empowers the elected representatives to act on behalf of the people. Consequently, the Governor, who despite his constitutional status is unelected, is vested with limited discretionary powers., The power of the Governor to act without the aid and advice of the Council of Ministers is of an extraordinary nature. The exercise of such power has ramifications on parliamentary democracy. Hence, the ambit of the exercise of such power by the Governor must be calibrated to meet the exigencies of situations where the Governor is satisfied on the basis of objective material that there is sufficient cause to warrant the exercise of his extraordinary power. The discretion to call for a floor test is not an unfettered discretion but one that must be exercised with circumspection, in accordance with the limits placed on it by law., In his letter dated 28 June 2022, the Governor relied on the five circumstances mentioned above to arrive at the following conclusions: (i) a majority of the Shiv Sena Members of Legislative Assembly intended to exit from the Maha Vikas Aghadi Government; (ii) Mr Thackeray was trying to win over the Members of Legislative Assembly using undemocratic methods; and (iii) Mr Thackeray had lost the trust of the House and the Maha Vikas Aghadi Government was in the minority., The petitioners have urged that the Governor was not justified in reaching the conclusion on the basis of the resolution dated 21 June 2022 because: (i) the thirty‑four Members of Legislative Assembly belonging to Shiv Sena did not express their intention to exit the Maha Vikas Aghadi Government; and (ii) the Members of Legislative Assembly who signed the resolution constituted a faction of the Shiv Sena Legislative Party., Although the resolution dated 21 June 2022 specifies that some Members of Legislative Assembly of the Shiv Sena Legislative Party were dissatisfied with the functioning of the Maha Vikas Aghadi Government, it does not record their intention to withdraw support from the Government. Among the thirty‑four Members of Legislative Assembly who signed the resolution dated 28 June 2022, a few were also Ministers in the Government. On the basis of this resolution, the Governor concluded that a majority of the Shiv Sena Members of Legislative Assembly have given a clear indication that they intend to exit from the Maha Vikas Aghadi Government., The Assembly was not in session when Mr Fadnavis and seven independent Members of Legislative Assembly wrote to the Governor. However, there was no attempt made by the members of the opposition parties to issue a notice for a no‑confidence motion against the incumbent government., The Governor had no objective material on which he could doubt the confidence of the incumbent government. The resolution on which the Governor relied did not contain any indication that the Members of Legislative Assembly wished to exit from the Maha Vikas Aghadi Government. The communication expressing discontent on the part of some Members of Legislative Assembly is not sufficient for the Governor to call for a floor test. The Governor ought to apply his mind to the communication (or any other material) before him to assess whether the Government seemed to have lost the confidence of the House. We use the term opinion to mean satisfaction based on objective criteria as to whether he possessed relevant material, and not to mean the subjective satisfaction of the Governor. Once a government is democratically elected in accordance with law, there is a presumption that it enjoys the confidence of the House. There must exist some objective material to dislodge this presumption., The Members of Legislative Assembly did not express their desire to withdraw support from the Maha Vikas Aghadi Government in the resolution dated 21 June 2022. Even if it is assumed that the Members of Legislative Assembly implied that they intended to exit from the Government, they only constituted a faction of the Shiv Sena Legislative Party and were at most indicating their dissatisfaction with the course of action adopted by their political party., The political imbroglio in Maharashtra arose as a result of party differences within the Shiv Sena. However, the floor test cannot be used as a medium to resolve internal party disputes or intra‑party disputes. Dissent and disagreement within a political party must be resolved in accordance with the remedies prescribed under the party constitution, or through any other methods that the party chooses to opt for. There is a marked difference between a party not supporting a government and individuals within a party expressing their discontent with their party leadership and functioning., The Governor is the titular head of the State Government. He is a constitutional functionary who derives his authority from the Constitution. This being the case, the Governor must be cognizant of the constitutional bounds of the power vested in him. He cannot exercise a power that is not conferred on him by the Constitution or a law made under it. Neither the Constitution nor the laws enacted by Parliament provide for a mechanism whereby disputes amongst members of a particular political party can be settled. They certainly do not empower the Governor to enter the political arena and play a role, however minute, either in inter‑party disputes or in intra‑party disputes. It follows from this that the Governor cannot act upon an inference that he has drawn that a section of the Shiv Sena wished to withdraw their support to the Government on the floor of the House., It is true that the letter dated 25 June 2022 sent by some Members of Legislative Assembly of the Shiv Sena to the Governor requesting him to issue directions to the appropriate authorities for the restoration of their security details mentions that those Members of Legislative Assembly no longer wanted to be a part of the corrupt Maha Vikas Aghadi Government. However, this cannot be taken to mean that they had withdrawn their support on the floor of the House. Nothing in any of the communications relied upon by the Governor indicates that the dissatisfied Members of Legislative Assembly from the Shiv Sena intended to withdraw their support to the Chief Minister and the Council of Ministers. At the highest, the various communications expressed the fact that a faction of Members of Legislative Assembly disagreed with some policy decisions of the party. The course of action they wished to adopt in order to air their grievances and redress them was, at the time the floor test was directed to be conducted, uncertain.
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Whether they would choose to enter deliberations with their colleagues in the House or in the political party, mobilise the cadres, resign from the Assembly in protest, or merge with another party was uncertain. Therefore, the Governor erred in relying upon the resolution signed by a faction of the Shiv Sena Legislative Party (SSLP) Members of Legislative Assembly to conclude that Mr. Thackeray had lost the support of the majority of the House. The Governor also relied on the letter dated 25 June 2022 from thirty‑eight SSLP Members of Legislative Assembly claiming that the security provided to them and to their families was illegally withdrawn. The Members of Legislative Assembly claimed that the security was withdrawn to coerce them into continuing to support the Maharashtra Vikas Aghadi government against their free will. They demanded restoration of the security provided to them and to their family members. After receiving the letter, the Governor issued directions to the state police to provide adequate protection to the Members of Legislative Assembly, the members of their families, and their property. However, the lack of security to Members of Legislative Assembly has no bearing on the question of whether the Government enjoys the confidence of the House. The appropriate response of the Governor in such cases is to ensure that the security that they are lawfully entitled to continues to be provided to them if it has been removed. This was an extraneous reason that was considered by the Governor., The third communication that the Governor relied on is the letter dated 21 June 2022 addressed by Mr. Eknath Shinde to the Deputy Speaker stating that the appointment of Mr. Ajay Choudhari was illegal. The Governor may not enquire into or express an opinion on the validity of proceedings of the legislature. That is exclusively within the domain of the legislature itself or, in certain circumstances discussed in the previous segment of this judgment, within the domain of the Supreme Court of India. The discretionary power of the Governor under Article 163 of the Constitution is limited to situations where a constitutional provision expressly provides for it, or where the Constitution cannot be construed otherwise than to grant such discretion. Hence, the Governor ought not to have relied on the letter dated 21 June 2022. In any event, the contents of the letter did not indicate anything to suggest that the then Chief Minister Mr. Thackeray had lost the confidence of the House., Finally, the Governor relied on the letters written by Mr. Devendra Fadnavis and seven independent Members of Legislative Assembly, calling upon him to direct Mr. Thackeray to prove his majority on the floor of the House. Both Mr. Fadnavis and the seven Members of Legislative Assembly could have moved a motion of no‑confidence; nothing prevented them from doing so. A request by some Members of Legislative Assembly for a direction to the Chief Minister to prove his majority does not, taken alone, amount to a relevant and germane reason to call for a floor test. There must be some objective material in addition to a mere request to call for a floor test. In the present case, the Governor did not have any objective material before him to indicate that the incumbent government had lost the confidence of the House and that he should call for a floor test. Hence, the exercise of discretion by the Governor in this case was not in accordance with law., Relying on Bommai (supra) and Nabam Rebia (supra), the petitioners argue that the Supreme Court of India has the power to restore the status quo ante and rule that the Government with Mr. Thackeray as its Chief Minister is to be reinstated. However, this argument does not account for the fact that Mr. Thackeray did not face the floor test on 30 June 2022 and instead submitted his resignation. The Supreme Court of India cannot quash a resignation that has been submitted voluntarily. Had Mr. Thackeray refrained from resigning from the post of the Chief Minister, the Supreme Court of India could have considered the grant of the remedy of reinstating the government headed by him. The order of the Supreme Court of India dated 29 June 2022 held that the outcome of the trust vote to be conducted on 30 June 2022 shall be subject to the final outcome of this batch of petitions. Since the trust vote was not held, the question of it being subject to the final outcome of these petitions does not arise., The petitioners urge that the pendency of disqualification petitions before the Speaker or the Deputy Speaker ought to have resulted in the postponement of the floor test. This argument cannot be accepted. As discussed in the previous section of this judgment, the pendency of disqualification petitions does not bar a Member of Legislative Assembly from participating in the proceedings of the House, including the floor test. It is true that adjudication of disqualification petitions would alter the numbers in the Assembly and ultimately bear on the outcome of a floor test. The option of initiating a no‑confidence motion after the adjudication of disqualification petitions is open to the Members of Legislative Assembly. However, the Supreme Court of India cannot stay the proceedings of the House until the disqualification petitions are decided. To do so would amount to interfering with the proceedings of the House. The discretion of the Governor to direct the Chief Minister to face a floor test ought to be based on objective material., The petitioners have challenged the exercise of discretion by the Governor in inviting Mr. Shinde to form the government on two grounds: first, Mr. Shinde’s appointment is barred by Article 164(1B) of the Constitution; and second, the Governor has exceeded the scope of his authority by recognizing one of the two rival factions as being the real Shiv Sena. These submissions are addressed in turn., Article 164(1B) of the Constitution is reproduced below: 164. Other provisions as to Ministers. (1B) A member of the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council belonging to any political party who is disqualified for being a member of that House under paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister under clause (1) for the duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or, where he contests any election to the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council, as the case may be, before the expiry of such period, till the date on which he is declared elected, whichever is earlier., Article 164(1B) bars a Member of Legislative Assembly or a Member of the Legislative Council of a State (where one exists) from being appointed as a Minister if they have been disqualified under Paragraph 2 of the Tenth Schedule. The bar begins to operate only upon the member of the legislature incurring disqualification. Article 164(1B) does not interdict the appointment of a member to the post of a Minister if a petition for their disqualification under Paragraph 2 of the Tenth Schedule is pending adjudication before the Speaker. This is evident from the language of Article 164(1B), which states that a member who is disqualified under Paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister., The mere institution of a disqualification petition does not trigger the consequences which flow from the disqualification itself. To hold otherwise would blur the distinction between the institution of a disqualification petition against a member of the House and the disqualification of that member. A claim that something is true does not mean that it is actually true. A claim must be established according to the procedure established by law before it can be considered to be a fact. When a petition for disqualification under the Tenth Schedule is filed before the Speaker, the party who filed the petition asserts that the respondent has contravened the provisions of the Tenth Schedule. This averment must be tested on the anvil of evidence before the Speaker, who acts as a Tribunal under the Tenth Schedule. Article 164(1B) is therefore triggered only when the Speaker returns a verdict finding that the member of the House in question has breached Paragraph 2 of the Tenth Schedule. If the Speaker finds that Mr. Shinde is disqualified, he will no longer be eligible to hold the post of Chief Minister for the duration specified in Article 164(1B)., The petitioners have relied on the decision in Rajendra Singh Rana (supra) in support of their contention. As discussed in the previous segment of this judgment, the disqualification of a member of the House relates back to the date on which the proscribed act was performed for the purpose of determining whether a defence to disqualification is made out., The petitioners have also relied on the decision in Shrimanth Balasaheb Patil (supra) to urge that the appointment of Mr. Shinde is barred by Article 164(1B). In that case, the State Government of Karnataka was formed by a coalition consisting of Members of Legislative Assembly of the Indian National Congress and the Janata Dal (Secular) in 2018. In early 2019, a series of disqualification petitions under the Tenth Schedule were filed against Members of Legislative Assembly of various parties which formed the government. Some of them submitted their resignations to the Speaker either immediately before or shortly after the disqualification petitions were filed against them. The Speaker ultimately passed an order inter alia disqualifying these Members of Legislative Assembly., Aggrieved by the order of the Speaker, the disqualified Members of Legislative Assembly approached the Supreme Court of India under Article 32 of the Constitution. The Members of Legislative Assembly who had tendered their resignations argued that the Speaker did not have jurisdiction to adjudicate the petitions for their disqualification because they had already resigned and were therefore not members of the House who could be disqualified. Relying on Rajendra Singh Rana (supra), the Supreme Court of India rejected this submission and held that the Speaker has jurisdiction to determine the disqualification petitions because disqualification relates to the date when the act constituting defection is alleged to have been committed. As such, there is no doubt that the disqualification relates to the date when such act of defection takes place. The tendering of resignation does not have a bearing on the jurisdiction of the Speaker in this regard., The Supreme Court of India may allude to the case of D. Sanjeevayya v. Election Tribunal, AIR 1967 SC 1211, wherein it held that it is not permissible to interpret Section 150 of the Representation of the People Act in isolation without reference to Part III of the Act which prescribes the machinery for calling in question the election of a returned candidate. When an election petition has been referred to a Tribunal by the Election Commission of India and the Tribunal is seized of the matter, the petition has to be disposed of according to law. A returned candidate cannot evade an election petition by resigning his seat in the legislature, whatever the reason for his resignation may be. Therefore, the principle may be adopted accordingly, wherein the taint of disqualification does not vaporise on resignation, provided the defection has happened prior to the date of resignation., The decision in Shrimanth Balasaheb Patil applied the principle that disqualification relates to the date on which the act of defection takes place to mean that acts or events subsequent to the commission of the conduct prohibited under the Tenth Schedule do not have an exculpatory effect. In other words, subsequent acts or events do not cure such conduct or release the actor from the consequences which follow. This is consistent with the decision in Rajendra Singh Rana. Consequently, Mr. Shinde’s appointment is not barred by Article 164(1B) of the Constitution., The petitioners submit that the Governor has exceeded the scope of his authority by inviting Mr. Shinde to form the government because (a) the President of the Shiv Sena, Mr. Thackeray, was not in favour of a government formed in coalition with the Bharatiya Janata Party, whereas the group led by Mr. Shinde was in favour of such an alliance, and by inviting Mr. Shinde the Governor has de facto recognized the group led by him as the real Shiv Sena; and (b) the Governor is not empowered to recognize the legitimacy of one faction over another. The Election Commission of India is the appropriate authority to determine which of the two factions constitute the Shiv Sena., The Bharatiya Janata Party returned one hundred and six candidates to the Maharashtra Legislative Assembly, the highest amongst all political parties, and formed the primary opposition party in the House. By a letter dated 30 June 2022, the then Leader of Opposition, Mr. Fadnavis, wrote to the Governor claiming that one hundred and six Members of Legislative Assembly of the Bharatiya Janata Party extended their support to Mr. Eknath Shinde for the formation of a government headed by Mr. Shinde. Eight independent candidates also extended their support to a government helmed by Mr. Shinde. On the same day, Mr. Shinde wrote to the Governor seeking to be called to form the Government. Based on the material before him, that is, the communications received, the Governor invited Mr. Shinde to take the oath of office and directed him to prove his majority on the floor of the House within a period of seven days. The post of the Chief Minister of the State of Maharashtra fell vacant after the resignation of Mr. Thackeray on 29 June 2022. The leader of the party that had returned the highest number of candidates to the State Assembly extended support on behalf of the party to Mr. Shinde. Thus, the decision of the Governor dated 30 June 2022 inviting Mr. Shinde to form the Government was justified., In view of the discussion above, the following are the conclusions: (a) the correctness of the decision in Nabam Rebia (supra) is referred to a larger Bench of seven judges; (b) the Supreme Court of India cannot ordinarily adjudicate petitions for disqualification under the Tenth Schedule in the first instance, and there are no extraordinary circumstances in the instant case that warrant the exercise of jurisdiction by the Supreme Court of India to adjudicate disqualification petitions; the Speaker must decide disqualification petitions within a reasonable period; (c) a Member of Legislative Assembly has the right to participate in the proceedings of the House regardless of the pendency of any petitions for their disqualification, and the validity of the proceedings of the House in the interregnum is not subject to the outcome of the disqualification petitions; (d) the political party and not the legislature party appoints the Whip and the Leader of the party in the House, and the direction to vote in a particular manner or to abstain from voting is issued by the political party and not the legislature party; the decision of the Speaker as communicated by the Deputy Secretary to the Maharashtra Legislative Assembly dated 3 July 2022 is contrary to law; the Speaker shall recognize the Whip and the Leader who are duly authorised by the Shiv Sena political party with reference to the provisions of the party constitution, after conducting an enquiry in this regard and in keeping with the principles discussed in this judgment; (e) the Speaker and the Election Commission of India are empowered to concurrently adjudicate on the petitions before them under the Tenth Schedule and under Paragraph 15 of the Symbols Order respectively; (f) while adjudicating petitions under Paragraph 15 of the Symbols Order, the Election Commission of India may apply a test that is best suited to the facts and circumstances of the case before it; (g) the effect of the deletion of Paragraph 3 of the Tenth Schedule is that the defence of split is no longer available to members facing disqualification proceedings, and the Speaker would prima facie determine who the political party is for the purpose of adjudicating disqualification petitions under Paragraph 2(1) of the Tenth Schedule, where two or more factions claim to be that political party; (h) the Governor was not justified in calling upon Mr. Thackeray to prove his majority on the floor of the House because he did not have reasons based on objective material before him to reach the conclusion that Mr. Thackeray had lost the confidence of the House; however, the status quo ante cannot be restored because Mr. Thackeray did not face the floor test and tendered his resignation; and (i) the Governor was justified in inviting Mr. Shinde to form the government. This batch of writ petitions is disposed of in terms of the conclusions and directions recorded above.
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S.B. Civil Writ Petition No. 11280/2019. Miss Madhu, daughter of Shri Muldan, aged about 22 years, resident of Village Gugdi, Gram Panchayat Aakadli Baksiram, Via Balotra, Tehsil Pachpadra, District Barmer, Rajasthan. Petitioner versus: 1. State of Rajasthan, through Principal Secretary, Department of Women and Child Development, Jaipur. 2. Director, Women and Child Development Department, Jaipur. 3. Deputy Director, Women and Child Development Department, Barmer. 4. Child Development Project Officer, Women and Child Development Department, Balotra‑1st, Headquarters Pachpadra, District Barmer. 5. Gram Panchayat Aakadli Baksiram, Tehsil Pachpadra, District Barmer through its Sarpanch/Gram Secretary. Respondents. For Petitioner: Mr. Yash Pal Khileree. For Respondents: Mr. Anil Gaur, Additional Advocate General. Judgment Reportable 04/09/2023., The petitioner feels aggrieved with a condition in the circular dated 09 November 2016 issued by the State Government which deals with selection, appointment and dispensing with the engagement of Anganwadi Karyakarta, Mini Karyakarta and Helper. The petitioner has obtained a graduate degree in Arts and a Computer Proficiency Certificate (RS‑CIT), but is yet to marry., The respondents issued an advertisement dated 28 June 2019 inviting eligible candidates to apply for the posts of Anganwadi Karyakarta, Mini Anganwadi Karyakarta, Anganwadi Sahayika and Asha Sahyogini. The petitioner, a resident of Village Gugdi, District Barmer, desirous of working as Anganwadi Karyakarta for Anganwadi Center Gugdi (in Tehsil Balotra), approached respondent No. 4 for submitting an application form. Respondent No. 4 verbally told her that as she was unmarried, she was not eligible to apply for the post of Anganwadi Karyakarta in view of Condition No. 1 of the advertisement dated 28 June 2019. When respondent No. 4 refused to accept her application form, she sent the same on 23 July 2019 by way of speed post., On 25 July 2019, the petitioner moved the Rajasthan High Court by filing the present writ petition. On 29 July 2019, a coordinate bench passed an interim order directing the respondents to consider the application filed by the petitioner for appointment to the post of Anganwadi Karyakarta pursuant to the advertisement dated 28 June 2019 for Gram Panchayat Aakadli, Anganwadi Kendra Gugdi. However, if she is selected for appointment, the order of appointment shall not be issued to her., Mr. Khileree, learned counsel for the petitioner, submitted that Condition No. 1 of the advertisement dated 28 June 2019 as well as Condition No. 2(A)(ii) of the circular dated 09 November 2016 are absolutely irrational, discriminatory and violative of the fundamental rights of unmarried candidates. He argued that no purpose can be said to be achieved by the impugned condition, which requires a female candidate to be married for being eligible for appointment. Mr. Gaur, learned Additional Advocate General, submitted that as the petitioner had failed to submit her application form by the last date (13 July 2019), she is not entitled to any relief. He further contended that the condition requiring a candidate to be married has a rationale – after being engaged as an Anganwadi worker or helper, if a candidate gets married and shifts to her marital home located at a different place, the functioning of the centre where she was appointed would be hampered., The Rajasthan High Court observed that the question of whether a candidate can be discriminated against or denied public employment on the ground of marital status is of seminal importance. According to the Court, discrimination against unmarried women on account of the offending condition cannot be countenanced; it is ex facie illegal, arbitrary and against the scheme of the Constitution of India which guarantees equality. The Court noted that a new front of discrimination, not envisaged by the framers of the Constitution, has been opened by the respondents by including the contentious condition in the circular., In the case of Madhu Kishwar v. State of Bihar reported in (1996) 5 SCC 125, the Supreme Court expressed anguish over the reality of women being discriminated against their male counterparts, stating that self‑sacrifice and self‑denial are their nobility and fortitude yet they have been subjected to inequities, indignities, inequality and discrimination., The present case is a classic example wherein discrimination against women has taken a new facet: an unmarried woman is discriminated against a married woman. The ostensible reason that an unmarried woman after marriage would migrate to her matrimonial house does not pass the test of reasonableness and prudence. Mere fact that a candidate is unmarried cannot be a reason to disqualify her., The Court posed several questions to the policymakers: What if the candidate marries a person from the same village or vicinity? What if a married woman, after being engaged as Anganwadi Karyakarta, moves to another place? What if a woman's husband decides to live in the woman's parental home? What if a woman becomes widowed or divorced and decides to move to a new place? What if a woman does not wish to marry at all? The State can neither pre‑empt such situations nor prevent a woman from claiming a job simply because she has not tied the nuptial knot., In the opinion of the Court, depriving a woman of public employment on the ground of being unmarried, apart from violating fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India, impinges upon a woman's dignity. Moreover, marital status or the condition of a woman being married to work in Anganwadi hardly fulfills any object. The apprehension that after marriage a woman will move to her matrimonial house is baseless and cannot justify the offending condition. The circular already contains a condition that addresses the State's concern., The petition is allowed. The impugned Condition No. 2(A)(ii) of the circular dated 09 November 2016 and Condition No. 1 of the advertisement dated 28 June 2019 are quashed to the extent they require a woman to be married. The State may take requisite undertaking from unmarried women candidates or amend the circular so that if a woman engaged on any post in any Anganwadi centre migrates to a place other than the area covered by the centre on account of marriage or otherwise, her engagement will be brought to an end., The petitioner has already sent her application form and, by virtue of the interim order dated 29 July 2019, her application has been directed to be considered. Consequently, the concerned authorities, namely the Gram Panchayat and respondent No. 4, are directed to process the petitioner's application form within four weeks from today in accordance with law. It will be obligatory upon the respondents to engage the petitioner as Anganwadi Karyakarta if she is otherwise meritorious and eligible. The stay petition also stands disposed of accordingly.
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Ramchandra Shrimant Bhandare, Appellant, versus the State of Maharashtra, Respondent. Mr. Sushan Mhatre, Advocate for the Appellant. Mr. Yogesh Y. Dabke, Assistant Public Prosecutor for the Respondent-State., The appellant has challenged his conviction and sentence recorded by the Special Judge, Greater Mumbai under the Protection of Children from Sexual Offences Act at Greater Mumbai on 20 November 2017 in POCSO Case No. 94 of 2014. He was convicted for an offence punishable under Section 354 of the Indian Penal Code read with Section 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). He was sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs 5,000, and in default to undergo rigorous imprisonment for six months. He was granted the benefit of set‑off under Section 428 of the Criminal Procedure Code. The judgment mentions that the appellant was in custody from 13 December 2013 till 21 July 2014 and then was re‑arrested on 26 July 2017 and remained in custody till the date of the order., The learned Special Judge heard Shri Sushan Mhatre, learned counsel for the appellant, and Shri Yogesh Dabke, learned Assistant Public Prosecutor for the State., The prosecution case is that on 11 December 2013 at about 1.00 p.m., the appellant approached the victim, who was about five years of age on that date, touched and pinched her private parts, thereby committing an offence punishable under Section 8 of the POCSO Act and under Section 354 of the IPC. The FIR was lodged at midnight. The appellant was apprehended by local residents, brought to the police station and arrested. The investigation was carried out and the charge‑sheet was filed. During trial, the prosecution examined four witnesses: PW‑1 was the victim herself, PW‑2 was the victim’s mother, PW‑3 was the investigating officer and PW‑4 was the medical officer., PW‑1, the victim, stated that she was studying in fourth standard. Her school timings were from 7.00 a.m. to 12.30 p.m. After returning from school she took lunch and then went to a mosque for studying Arabic. She returned home at around 4.30 p.m., went out to play with friends and returned home at 7.00 p.m. On the day of the incident she was playing outside her house with friends when an uncle approached her, closed her eyes with his hands, touched and pinched her private parts, causing pain. She returned home, narrated the incident to her mother, who took her to a hospital and then to the police station where the mother lodged the FIR. PW‑1’s statement was recorded under Section 164 of the Criminal Procedure Code by the learned Magistrate. In cross‑examination she deposed that her parents kept watch on her activities, that she was not left alone by her mother, and that she did not know anything about the relationship between her father and the appellant. She denied that she was deposing before the Court at the instance of her mother. She admitted that there was a quarrel between the appellant and her father, which she clarified arose because the appellant had committed the offence. PW‑1 then identified the appellant before the Court., PW‑2, the mother of the victim, narrated that on the date of the incident her daughter returned home crying and told her what had happened. She examined her daughter’s private part, which was reddish in colour. In the evening, while she and her daughter were purchasing vegetables, they saw the appellant drinking alcohol; the victim identified the appellant as the person who had committed the offence. PW‑2’s husband, with the help of neighbours, approached the appellant, and a crowd gathered and assaulted the appellant. The police arrived and took the appellant into custody. PW‑2 also went to the police station and lodged her FIR, which is Exhibit‑13. The victim was sent for medical examination. In cross‑examination, little of consequence was elicited. She denied the suggestion that on the date of the incident the appellant had quarreled with her husband under the influence of liquor and that, because PW‑2’s husband assaulted the appellant, the appellant’s family members lodged a complaint against her husband, thereby falsely implicating the appellant. There is no material contradiction between the FIR and her deposition. The FIR was recorded at 12.10 a.m. on 13 December 2013, i.e., the same midnight., PW‑3, API Santosh Rasam, conducted the investigation. He deposed that at about 11.30 p.m., the informant, her husband and the victim came to the police station and narrated the incident, after which the FIR was lodged. The staff of Vakola police station brought the appellant to the police station in a mobile van, and the victim identified the appellant as the perpetrator. He clarified that in the third paragraph of the FIR, by mistake, the date was mentioned as 11 December 2013 instead of 12 December 2013. The victim, who was five years old at the time, was continuously crying, and he could not record her statement for seven to eight days. In the meantime, she was referred for medical examination at Cooper Hospital. The victim’s statement was recorded under Section 164 of the Criminal Procedure Code; he recorded the statement on 11 August 2017 and issued a copy to the defence. In cross‑examination, nothing material was elicited. He admitted that he did not record the statements of the victim’s friends who were playing with her., PW‑4, Dr. Ayyar, examined the victim on 12 December 2013 at Cooper Hospital. The medical examination did not reveal any injury except the history given by the mother., The defence of the appellant, recorded under Section 313 of the Criminal Procedure Code, is that he went to the victim’s father’s shop to purchase groceries, paid the money, but a quarrel arose and he was falsely implicated because of that quarrel., The learned Special Judge believed the version of the victim and, relying on other evidence, convicted and sentenced the appellant as mentioned earlier., The learned counsel for the appellant submitted that the FIR mentions the incident took place on 11 December 2013 and the FIR was lodged on 13 December 2013, leaving an unexplained delay. He argued that the appellant is falsely implicated because of the quarrel with the victim’s father and that the medical examination did not reveal any injury, including redness on the private part of the victim, rendering the prosecution case doubtful., The learned Assistant Public Prosecutor, on the other hand, relied upon the depositions of the victim and her mother to contend that the prosecution has proved its case beyond reasonable doubt., I have considered these submissions. The victim has described the incident in sufficient detail. She was barely five years of age, was crying continuously, and after gathering courage identified the appellant in Court. Her evidence does not indicate that she is a tutored witness; she denied being tutored by her mother. The victim appears to be a truthful witness., PW‑2’s evidence corroborates PW‑1’s version. The appellant was identified by PW‑1 in the evening when PW‑1 and PW‑2 were returning after purchasing vegetables from the market. There was no possibility of misidentification. PW‑1 appears to be an innocent child who has not identified any person randomly and identified the appellant in Court despite being scared., The absence of injury in the medical certificate does not affect the case because the offence of sexual assault under Section 7 of the POCSO Act is satisfied by touching the private part with sexual intent, as provided in Section 8 of the POCSO Act., In this case, the ocular evidence of the victim and her mother inspires confidence and there is no reason to doubt their versions. The arrest of the accused is also proved by the evidence of the investigating officer; the appellant was caught by residents and handed over to the police., The defence of the appellant does not help his cause. No circumstances were brought on record to show that there was any quarrel between the appellant and the victim’s father., Thus, considering all these aspects, no case for interference with the impugned judgment and order is made out. The appeal is dismissed. It is clarified that if the appellant has already completed his substantive sentence and also the sentence imposed in default of payment of fine, he shall be released only after completing both sentences and if he is not required in any other case. With these observations, the appeal is disposed of.
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CC No. 30751/2021 dated 18 October 2022. Present: Special Court for trial of cases filed against sitting as well as former Members of Parliament and Members of Legislative Assembly, triable by Magistrate, Karnataka. Complainant: State, Brucepet Police Station, Bellary City Sub‑Division, Bellary. Accused: G. Somashekara Reddy, son of the late Chenga Reddy, 50 years, residing at Ashoknagar, Hamsabhavi, Bellary., The offence was committed on 31 December 2009 and reported on 14 March 2013. No arrest was made. The accused was released on bail on 15 July 2014. The complainant is Sri Adithya Amlan Biswas. Evidence was recorded on 24 September 2021 and closed on 5 April 2022. The offence complained of is under section 25(1‑B)(h) of the Arms Act. The judge’s opinion is that the accused is found guilty., The Police Sub‑Inspector of Brucepet Police Station filed a charge sheet against the accused for the offence punishable under section 25(1‑B)(h) of the Arms Act, 1959. The prosecution case states that the accused legally obtained a .32 N.P. bore revolver bearing number 752708 and, without depositing the revolver for renewal for the period from 1 January 2010 to 9 November 2011, kept it in unlawful possession, thereby committing the offence under section 25(1‑B)(h) of the Arms Act, 1959. On the basis of the complaint of CW‑01, the case was registered as Criminal Case No. 237/2013 against the accused. After investigation, a charge sheet was filed and the Special Court for trial of cases filed against sitting as well as former MPs/MLAs, triable by Magistrate, Karnataka took cognizance of the offences., The accused appeared and was released on bail. Copies of the prosecution papers were furnished to the accused as contemplated under section 207 of the Criminal Procedure Code. The charge was framed and read to the accused. He did not plead guilty and claimed trial, so the matter was posted for evidence., The prosecution examined seven witnesses, designated PW‑01 to PW‑07, and marked twelve documents as Exhibit P‑01 to Exhibit P‑12. After closure of prosecution evidence, the accused was examined under section 313 of the Criminal Procedure Code to answer the incriminating circumstances. The accused denied involvement and did not lead any defence evidence. During cross‑examination of PW‑05, two documents were marked as Exhibit D‑01 and D‑02 by way of confrontation., The arguments of the Senior Assistant Public Prosecutor and the counsel for the accused were heard. The Special Court for trial of cases filed against sitting as well as former MPs/MLAs, triable by Magistrate, Karnataka considered two points: (1) whether the prosecution proved beyond reasonable doubt that the accused, having legally obtained the .32 N.P. bore revolver bearing number 752708 and without depositing it for renewal as required by sub‑section (1) of section 21 of the Arms Act for the period from 1 January 2010 to 9 November 2011, kept it in unlawful possession and thereby committed the offence under section 25(1‑B)(h) of the Arms Act, 1959; and (2) what order should be passed., The findings are as follows. The criminal law was set in motion on the basis of the first information report given by CW‑01, Sri Adithya Amlan Biswas, District Commissioner. The prosecution cited eleven witnesses, of whom seven were examined. The investigating officer seized copies of the gun licence registers pertaining to the accused’s revolver from two separate registers. The first register and its seized documents are marked as Exhibit P‑01 and P‑02; the second register and its seized documents are marked as Exhibit P‑03 to P‑06. The evidence of CW‑06 was presented by the Senior Assistant Public Prosecutor. One of the Panch witnesses to the second register was examined as PW‑01, and the register was marked as Exhibit P‑03, with documents marked as Exhibit P‑04 to P‑06. The prosecution proved both registers and the seizures made thereunder., CW‑07, working as Sub Divisional Assistant in the MAJ‑Section of the Office of the Deputy Commissioner, Bellary, was examined as PW‑02. He stated that the accused obtained a licence from the office and purchased the .32 N.P. bore revolver bearing number 752708. He explained that the licence must be renewed every three years and, if not renewed, the revolver should be deposited in the jurisdictional police station. The accused failed to renew the licence on 31 December 2009 and did not deposit the revolver, leading the Deputy Commissioner to issue a notice. After the case was registered, the police seized the certified extract of the arms licence register No. 10/2004‑05, marked as Exhibit P‑02., In cross‑examination of PW‑02, it was suggested that the licence was renewed from 11 November 2011 to 31 December 2012. He testified that although Exhibit P‑02 shows renewal by payment of a fine of Rs 360, the endorsement bears only the seal and no signature. CW‑08, Head Constable of Bellary Rural Police Station, examined as PW‑03, stated that on 13 June 2013 he produced the gun licence register extract, gun deposit register extract and Form No. 57 pertaining to the accused before the investigating officer, and these were seized from his possession (Exhibits P‑04 to P‑06) in the presence of the Panchas. He affirmed that the accused had not renewed the licence nor deposited the revolver after the licence expired on 31 December 2009. He further stated that the accused deposited the revolver on 10 November 2011 in the police station and on 14 June 2012 the revolver was deposited at the District Arms Repository, Bellary, as evidenced by Exhibit P‑06., The police officer who registered the case, examined as PW‑04, testified that on 30 August 2013 he received a memorandum from the Office of the Superintendent of Police, registered the case and forwarded the FIR to the court (Exhibit P‑08). The complainant, examined as PW‑05, stated that on 16 November 2011 the accused applied for renewal of his gun licence, which had expired on 31 December 2009. The accused deposited the gun on the order of the Deputy Commissioner and District Magistrate for the purpose of the by‑election. When asked why he kept the unlicensed gun, the accused replied that work pressure prevented him from renewing the licence and that the licence was lost during house renovation. The complainant wrote to the Superintendent of Police, and, finding the explanation unsatisfactory, lodged a complaint on 14 March 2013 (Exhibit P‑09). On 24 February 2014, in his capacity as Deputy Commissioner, he sanctioned the filing of the charge sheet (Exhibit P‑11)., During cross‑examination, PW‑05 confirmed the recommendation letter issued by the Superintendent of Police for licence renewal (Exhibit D‑01) and the letter written by the accused to the office (Exhibit D‑02). He admitted that the order from the Election Officer to deposit the arms for election purposes was not produced. He suggested that personal animosity towards the accused motivated the filing of the charge sheet, a suggestion he denied., CW‑09, who received the complaint of CW‑01 through Sri Bhat Krishna of the Superintendent of Police’s office, was examined as PW‑06. He testified that he received the complaint (Exhibit P‑09), registered the case, and forwarded the FIR to the court (Exhibit P‑12). He visited the Deputy Commissioner’s office and obtained a certified copy of the arms register (Exhibit P‑02) drawn from the first register (Exhibit P‑01) in the presence of CW‑02 and CW‑03, and later drew a register (Exhibit P‑03) in the police station in the presence of Panchas CW‑04 and CW‑05, seizing documents (Exhibits P‑04 to P‑06) from CW‑08. He submitted a requisition to the concerned court and, on 20 June 2013, obtained permission from the Superintendent of Police, and on 3 August 2013, sent the complete file to the Superintendent’s office., CW‑11, who filed the charge sheet, was examined as PW‑07. He stated that after receiving the case file, he sought permission from the Superintendent of Police to file the charge sheet, and on 24 February 2014 the Deputy Commissioner passed the sanction order (Exhibit P‑11), after which the charge sheet was filed. Cross‑examination revealed that the accused had applied for renewal of the revolver licence on 16 November 2011. The recommendation letter from the Superintendent of Police (Exhibit D‑01) and the accused’s letter (Exhibit D‑02) were presented. Although the records show payment of the late fee of Rs 360 and renewal, the endorsement lacks a signature., The cross‑examination of prosecution witnesses and the documents confronted to PW‑07 demonstrate that the revolver licence of the accused expired on 31 December 2009. The original licence and registers were produced before the Special Court for trial of cases filed against sitting as well as former MPs/MLAs, triable by Magistrate, Karnataka and kept in safe custody. The original licence shows that the Deputy Commissioner of Bellary issued the licence in 2005 for the purchase of the .32 N.P. bore revolver bearing number 752708, with expiry on 31 December 2005. The licence was renewed for the period 1 January 2006 to 31 December 2006, and again for 1 January 2007 onward. The accused did not renew the licence after 31 December 2009 nor deposit the arms as required under sub‑section (1) of section 21 of the Arms Act., The counsel for the accused argued that the revolver was voluntarily deposited on 10 November 2011 during the election, that the licence was renewed on 16 November 2011 upon payment of a late fee of Rs 360, and that Section 21 of the Arms Act does not prescribe a specific period for deposit. He further contended that once the late fee is accepted, prosecution cannot proceed, and cited Rule 54(2) of the Arms Rules, asserting that the burden to intimate the accused for renewal lies with the complainant. The counsel also argued that the sanctioning authority and the complainant being the same person renders the sanction unsustainable, and relied upon decisions in Amrik Chand Saluja v. State of M.P. (1991) and Mansukhlal Vithaldas Chauhan v. State of Gujarat (1997)., The Special Court for trial of cases filed against sitting as well as former MPs/MLAs, triable by Magistrate, Karnataka notes that the offence is punishable under section 25(1‑B)(h) of the Arms Act, 1959, which requires deposit of arms without unnecessary delay when the licence expires. The possession of the .32 N.P. bore revolver bearing number 752708 ceased to be lawful on 31 December 2009. The accused deposited the revolver only on 10 November 2011, more than one and a half years later. The defence of work pressure and loss of the licence pass book during house renovation is not acceptable, as both explanations cannot simultaneously justify the delay. The provision does not allow the accused to rely on such explanations; the deposit must be made without unnecessary delay, and the authority may condone delay only if satisfied, which it was not in this case., The argument that the late fee of Rs 360 was paid and the licence renewed does not absolve the accused, because the renewal entry lacks the signature of the renewing authority. The case is for failure to deposit the arms under sub‑section (1) of section 21 of the Arms Act, not for non‑renewal of the licence. Therefore, the defence that payment of the late fee precludes prosecution fails., The Special Court for trial of cases filed against sitting as well as former MPs/MLAs, triable by Magistrate, Karnataka holds that the counsel’s contention that the burden to intimate renewal lies with the complainant, invoking Rule 54 of the Arms Rules, is inapplicable, as the complaint is for non‑deposit of arms, not for failure to renew the licence. Similarly, the argument that the sanctioning authority and complainant being the same person invalidates the sanction is rejected, as precedent (Special Leave Petition (Criminal) Diary No. 39528/2018, Mukesh Singh v. State) holds that sanction is valid where investigation is not biased., The Special Court for trial of cases filed against sitting as well as former MPs/MLAs, triable by Magistrate, Karnataka refers to the decision of the Karnataka High Court in Criminal Petition No. 6173/2020 (Khadir Sab @ Kadeer Magare v. State) which held that prior sanction of the District Magistrate is required only for offences under section 25(1‑B)(a) (which refers to section 39 of the Arms Act). No prior sanction is required for offences under section 25(1‑B)(h). Accordingly, the prosecution may proceed without prior sanction., In conclusion, the Special Court for trial of cases filed against sitting as well as former MPs/MLAs, triable by Magistrate, Karnataka holds that the accused committed the offence under section 25(1‑B)(h) of the Arms Act, 1959 by failing to deposit the .32 N.P. bore revolver bearing number 752708 after the licence expired on 31 December 2009. No prior sanction is required for this offence. The appropriate order is accordingly passed.
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Notwithstanding anything contained in subsection (1), no person, other than a person referred to in sub‑section (3), shall acquire, have in his possession or carry, at any time, more than three firearms. Provided that a person who has in his possession more firearms than three at the commencement of the Arms (Amendment) Act, 1983, may retain any three of such firearms and shall deposit, within ninety days from such commencement, the remaining firearms with the officer in charge of the nearest police station or, subject to the conditions prescribed for the purposes of subsection (1) of Section 21, with a licensed dealer or, where such person is a member of the armed forces of the Union, in a unit armoury referred to in that subsection., Nothing contained in subsection (2) shall apply to any dealer in firearms or to any member of a rifle club or rifle association licensed or recognised by the Central Government using a point‑22 bore rifle or an air rifle for target practice., The provisions of subsections (2) to (6) (both inclusive) of Section 21 shall apply in relation to any deposit of firearms under the proviso to subsection (2) as they apply in relation to the deposit of any arm or ammunition under subsection (1) of that section., This case is not registered against the accused in respect of the offence under Section 3 of the Arms Act. This case is admittedly for the offence under Section 25(1)(B)(h) of the Arms Act, for not depositing the arms as mandated under Section 21(1) of the Arms Act. Based on the discussions made above, I am of the considered opinion that the accused has committed the offence alleged against him. Accordingly, Point No. 1 answered in the affirmative., In view of my findings given on Point No. 1, I proceed to pass the following: Acting under Section 248(2) of the Criminal Procedure Code, the accused is convicted for the offence punishable under Section 25(1)(B)(h) of the Arms Act, 1959. To hear regarding sentence. (Typed by me directly on the computer, corrected and then pronounced by me in open court on the 18th day of October 2022). (Preeth. J) (Special Court for trial of cases filed against sitting as well as former MPs/MLAs, triable by Magistrate in the State of Karnataka)., Hearing regarding sentence is deferred, as the counsel for the accused sought to invoke provisions of the Probation of Offenders Act. (Preeth. J) (Special Court for trial of cases filed against sitting as well as former MPs/MLAs, triable by Magistrate in the State of Karnataka)., The counsel for the accused has prayed to release the accused by extending the benefit under the provisions of Section 4 of the Probation of Offenders Act., On the other hand, the Learned Senior Assistant Public Prosecutor has opposed the same and prayed to reject the prayer of the accused., Heard and perused the materials on record., The Special Court for trial of cases filed against sitting as well as former MPs/MLAs, triable by Magistrate in the State of Karnataka has called for the report from the District Probation Officer, Bellary. From the said report, it can be gathered that there are no other criminal cases against this accused except the case on hand. It also shows that the accused is residing with his family at Ward No. 35, Ashoknagar, Havambhavi, Siruguppa Road, Bellary City. The accused is now a sitting Member of Legislative Assembly of Bellary Constituency and is also the President of KMF, Bellary and is a person of good character involved in developmental activities and social work in his constituency. Moreover, the offence committed by the accused is not a grave offence compared to other offences under the Arms Act. Taking into consideration the facts and circumstances of the case and the background of the accused as per the Probation of Offenders Report, it appears that the accused has repented for the offence. The offence, though, prescribes a minimum punishment of one year which may extend to three years and also a fine, but is not punishable by life imprisonment or death., The Learned Senior Assistant Public Prosecutor has argued that as the offence committed by the accused prescribes a minimum sentence, the Probation of Offenders Act cannot be invoked and the said Act is not applicable to the Arms Act. The counsel for the accused has relied upon the following authorities: Criminal Revision Petition No. 84/2014, between Shrimati Indira S. versus State of Karnataka, dated 11‑10‑2018; Criminal Appeal No. 455/2005, between Amit Singh and others versus State of Rajasthan, dated 10‑01‑2020; Criminal Appeal No. 391/1995, between Man Singh and others versus State of Rajasthan, dated 21‑02‑2017; 1991 SCC OnLine Raj 628, between Sugna Ram versus State of Rajasthan, dated 23‑01‑1991; (2021) 2 SCC 763, between Lakhvir Singh and others versus State of Punjab and another, dated 19‑01‑2021; ILR 2010 KAR 3885, between State of Karnataka, by K.P.T.C.L. (Vigilance) versus Shivappa., The Learned Senior Assistant Public Prosecutor has also relied upon the decision reported in 2013 (1) Crimes (Supreme Court) 317, between Shyam Lal Verma versus Central Bureau of Investigation, dated 21‑01‑2013., I have gone through all the decisions thoroughly. All the authorities relied upon by the accused are aptly applicable to the case on hand. It is also clear that the provisions of the Probation of Offenders Act can be made applicable to offences under the Arms Act, though a minimum sentence is prescribed. It is observed in the said decisions that the application of the Probation of Offenders Act also depends upon the facts and circumstances of each case, as to whether such benefit should be extended to the accused. Taking into consideration the facts and circumstances of the case, the character of the accused, his age, his permanent abode and his antecedents, it is just and necessary to release the accused under Section 4 of the Probation of Offenders Act, instead of imposing a sentence, as the same will not have a bad impact on society. Accordingly, I proceed to pass the following: The accused is released on probation of good conduct for a period of one year, subject to the following conditions: (1) The accused shall execute a personal bond for a sum of Rs. 50,000 with one surety for the like sum for his good behaviour; (2) The accused shall maintain peace and good behaviour in and around his locality; (3) The accused shall not indulge in any criminal activities; (4) The accused shall not travel abroad without the prior permission of this Court; (5) The accused shall be under the supervision of this Court for a period of one year; (6) If any of the conditions imposed by this Court is violated, the benefit extended to the accused will be automatically cancelled. The accused is directed to be present before this Court quarterly, i.e., once in three months for a period of one year, and to file his affidavit of non‑violation of the conditions mentioned above. (Typed by me directly on the computer, corrected and then pronounced by me in open court on the 29th day of October 2022). (Preeth. J) (Special Court for trial of cases filed against sitting as well as former MPs/MLAs, triable by Magistrate in the State of Karnataka)., Witnesses examined for the prosecution: PW.01 P. Hidayathulla, PW.02 N. Nagaraj, PW.03 M. Lakshman, PW.04 B. Niranjan, PW.05 Adithya Amlan Biswas, PW.06 G. Somashekar, PW.07 R. Nagaraj. Documents exhibited for the prosecution: Exhibit P.01 Mahazar; Exhibit P.02 covering copy of Register of License issued and renewed pertaining to Arms License No. 10/2004‑05; Exhibit P.03 Panchanama; Exhibit P.04 copy of extract of Gun License Register; Exhibit P.05 copy of extract of Gun Deposit Register; Exhibit P.06 copy of extract of Form No. 57; Exhibit P.07 memorandum dated 03‑08‑2013; Exhibit P.09 complaint; Exhibit P.10 endorsement dated 13‑03‑2013; Exhibit P.11 sanction order dated 24‑02‑2014. Documents exhibited for the defence: Exhibit D.01 recommendation letter dated 04‑02‑2012; Exhibit D.02 accused written letter to the office of PW.05.
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Petition for Special Leave to Appeal (Civil) No. 19038/2022 (Arising out of the impugned final judgment and order dated 18-08-2022 in Civil Writ Jurisdiction Case No. 11593/2022 passed by the High Court of Judicature at Patna) Date: 24-01-2023. The matters were called on for hearing today., For the petitioner: Mr. Dhruv Mehta, Senior Advocate; Mr. Birendra Kumar Mishra, Advocate on Record; Mr. Manish Shrivastav, Advocate; Ms. Poonam A, Advocate; Mr. Sirajuddin, Advocate. For the respondent: Mr. Azmat Hayat Amanullah, Advocate on Record. Upon hearing the counsel, the High Court of Judicature at Patna heard the learned senior counsel for the petitioner as well as the learned counsel for the respondents and perused the petition papers., The petitioner is assailing the order dated 18-08-2022 passed by the High Court of Judicature at Patna in Civil Writ Jurisdiction Case No. 11593 of 2022. The petitioner had approached the High Court seeking a direction to Respondent No. 2, District Magistrate, East Champaran, Motihari, Bihar, to grant a No Objection Certificate for starting an MS/HSD retail outlet dealership over land situated in Khata No. 544, Plot No. 1077, Thana No. 196, Tauzi No. 951, Ward No. 37 in Mauza Chhota Bariyarpur, Police Station Chhatauni, Motihari, District East Champaran, Bihar. The District Magistrate rejected the request for issuance of the No Objection Certificate., The said order was assailed before the High Court, which dismissed the petition on the ground that the respondents contended that, against the decree passed in favour of the petitioner dated 25-08-2021, an appeal had been filed before the High Court and was yet to be heard. The respondents produced, along with the counter affidavit, an extract of the present case status of FA-16 of 2022, indicating that the appeal was filed on 11-03-2022, registered on 15-03-2022, and that scrutiny for posting the appeal before the High Court was still pending., Although the respondents raised this contention, Order 41 Rule 5 of the Code of Civil Procedure provides that unless the appeal is listed and an interim order is passed, the mere filing of the appeal does not operate as a stay. Accordingly, the judgment and decree dated 25-08-2021 would continue to benefit the petitioner, and the rejection of the No Objection Certificate solely on the ground that an appeal has been filed is not justified., In view of the foregoing, the order dated 18-08-2022 passed by the High Court of Judicature at Patna in Civil Writ Jurisdiction Case No. 11593 of 2022 is set aside. The rejection of the No Objection Certificate by the District Magistrate is held unjustified, and the District Magistrate is directed to take note of the decree dated 25-08-2021 and issue the No Objection Certificate within two weeks from this day to the petitioner, subject to the result of the appeal pending before the High Court. The petition is disposed of, and any pending applications, if any, shall stand disposed of.
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Bar Council of Tamil Nadu and Puducherry, High Court Campus, Chennai – 600 104, Phone Number: 25842739, 26362695, Email: tnbarcouncil@brahoo.com, Website: barcouncil.tn.adupuducherry.org. Registration Order Number 849 of 2022 dated 09.05.2022. It is hereby notified for the general information of the public that the Bar Council of Tamil Nadu and Puducherry has passed prohibitory orders against the following advocates from practicing as advocates in all courts, tribunals and other authorities in India either in their name or in any assumed name., Mr. P.R. Adikesavan, Number 17, Giri Bhavan, General Patters Road, Mount Road, Chennai-600. The Bar Council of Tamil Nadu and Puducherry has passed a prohibitory order vide Resolution Number 43/2022 dated 04.05.2022, at the disposal of disciplinary proceedings pending against him, considering the direction of the Honourable Madras High Court dated 04.04.2022 in Suo motu Criminal Contempt Petition Number 866/2021., G. Sathish Kumar, Number 258, I Block, Nehru Nagar, Vyasarpadi, Chennai-600 039. The Bar Council of Tamil Nadu and Puducherry has passed a prohibitory order vide Resolution Number 44/2022 dated 04.05.2022, at the disposal of disciplinary proceedings pending against him, considering the criminal case registered against him in Crime Number 111/2022 under Section 302 of the Indian Penal Code read with Sections 120(b) and 302 of the Indian Penal Code, and Sections 147, 148, 341, 506 (ii) of the Indian Penal Code read with Section 149 of the Indian Penal Code, on the file of the Inspector of Police, 82 Esplanade Police Station, Chennai District., Mr. I. Ezhilarasan, Number 164, Kalliyangadu, Fire Service Back Side, Erode District, and Ms. S. Nathiya, Door Number 210, Aappakoodal Road, Kavundhapadi Pudur, Kavundhapadi (Post), Bhavani Taluk, Erode District. The Bar Council of Tamil Nadu and Puducherry has passed a prohibitory order vide Resolution Number 45/2022 dated 04.05.2022, at the disposal of disciplinary proceedings pending against them, considering the criminal case registered against them in Crime Number 235/2021 under Sections B(C) read with 20(b) and 29(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985, and Section 120(b), 212 of the Indian Penal Code, on the file of the Inspector of Police, Taluk Police Station, Erode District., Mr. A. Dineshbabu, Number 29, Velalar Street, Sqruttal Village, Menalur Post, Vembakkam Taluk, Tiruvannamalai 631702. The Bar Council of Tamil Nadu and Puducherry has passed a prohibitory order vide Resolution Number 47/2022 dated 04.05.2022, at the disposal of disciplinary proceedings pending against him, considering the cases registered against him in (i) Crime Number 731/2019 under Sections 147, 148, 427, 285 and 506 of the Indian Penal Code and Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 2015, on the file of Dusi Police Station, Tiruvannamalai District; and (ii) Crime Number 686/2019 under Sections 147, 148 and 302 of the Indian Penal Code read with Section 3 of the Tamil Nadu Prohibition of Dangerous Activities (Prevention of Damage to Property) Act, on the file of Cheyyar Police Station, Tiruvannamalai District., Mr. T. Muthuraj, Number 37175 Kambar Street, Virudhachalam, Cuddalore-606001. The Bar Council of Tamil Nadu and Puducherry has passed a prohibitory order vide Resolution Number 48/2022 dated 04.05.2022, at the disposal of disciplinary proceedings pending against him, considering the case registered against him in Crime Number 231/2021 under Sections 365, 420 and 506 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012, on the file of All Women Police Station, Vadapalani, Chennai District., The Bar Council of Tamil Nadu and Puducherry has passed a prohibitory order vide Resolution Number 49/2022 dated 04.05.2022, at the disposal of disciplinary proceedings pending against him, considering the case registered against him in Crime Number 011/2022 under Section 420 of the Indian Penal Code, on the file of the District Crime Branch, Namakkal District, for involvement in job racketing and issuing fabricated notifications in the name of Tamil Nadu State Consumer Disputes Redressal Commission, Chennai., Mr. A. Murugaiyan, Vaithiyalingam Street, Old Pallavaram, Chennai. The Bar Council of Tamil Nadu and Puducherry has passed a prohibitory order vide Resolution Number 50/2022 dated 04.05.2022, at the disposal of disciplinary proceedings pending against him, considering the case pending against him in Crime Number 181/2022 under Sections 109, 147, 148, 294(b) and 302 of the Indian Penal Code, on the file of the Suchindram Police Station., Mr. L. Prabhu, Number 7/398, Kunchanvilai, M.K. Pottal Post, Kanyakumari District. The Bar Council of Tamil Nadu and Puducherry has passed a prohibitory order vide Resolution Number 52/2022 dated 04.05.2022, at the disposal of proceedings pending before the Enrollment Committee, by considering the suppression of criminal cases and history sheet pending against him., Mr. T. A. Velanandhan, Number 11, Kumaravel Nagar, Jaya Nagar Extension, Tiruvallur - 602001. The Bar Council of Tamil Nadu and Puducherry has passed a prohibitory order vide Resolution Number 78/2022 dated 04.05.2022, at the disposal of proceedings pending before the Enrollment Committee, considering the suppression of employment details during enrollment., Mr. V. Virumandi, Number 3, Dr. Solomon Colony, 1st Cross Street, Lakshmipuram, Chrompet, Chennai 600 044. The Bar Council of Tamil Nadu and Puducherry has passed a prohibitory order vide Resolution Number 83/2022 dated 04.05.2022, at the disposal of proceedings pending before the Enrollment Committee, considering the suppression of employment during enrollment., Mr. H. Rajesh Kannan, Number 62, Dr. Ambedkar Street, Parikapattu Village, Guduvancheri, Ponneri Taluk, Tiruvallur. The Bar Council of Tamil Nadu and Puducherry has passed a prohibitory order vide Resolution Number 273/2022 dated 04.05.2022, at the disposal of disciplinary proceedings pending against him, by considering the judgment passed in Criminal Case Number 340/2021 dated 06.04.2022 by the Learned Judicial Magistrate No. 11, Tiruppur, which convicted and sentenced him to imprisonment for one year., Mr. A. Parthiban, Number 17, Nehru Nagar, 3rd Extension, SV Mill Post, Udumalaipettai, Tiruppur District. The Bar Council of Tamil Nadu and Puducherry has passed a prohibitory order vide Resolution Number 275/2022 dated 04.05.2022, at the disposal of disciplinary proceedings pending against him., Mr. E. Raja, Number 116, Periyar Street Lane, Salem - 636001. The Bar Council of Tamil Nadu and Puducherry has passed a prohibitory order vide Resolution Number 281/2022 dated 04.05.2022, at the disposal of disciplinary proceedings pending against him, considering the judgment passed in Supreme Court Case Number 981/2016 dated 08.04.2022 by the Learned Fast Track Mahila Sessions Judge, Namakkal, which convicted and sentenced him to imprisonment for seven years., Mr. V. Surendiran, Number 3/84, Middle Street, Aathur, Aathur, Nagapattinam 609204. The Bar Council of Tamil Nadu and Puducherry has passed a prohibitory order vide Resolution Number 276/2022 dated 04.05.2022, at the disposal of disciplinary proceedings pending against him, considering the cases registered against him in Manalmedu Police Station, Vayiladuthurai District, including Crime Number 357/2016 under Sections 120(b), 147, 148, 302 and 341 of the Indian Penal Code; Crime Number 107/2018 under Sections 143 and 341 of the Indian Penal Code; Crime Number 492/2020 under Sections 143, 115, 269, 270 and 341 of the Indian Penal Code; Crime Number 874/2020 under Sections 379, 420, 430 of the Indian Penal Code read with Section 21(1) of the Methyl Alcohol Act; Crime Number 1008/2020 under Sections 147, 188, 269 and 341 of the Indian Penal Code; Crime Number 1035/2020 under Sections 143 and 341 of the Indian Penal Code; and Crime Number 170/2021 under Sections 147, 148, 294(b), 307, 323, 324, 379, 427, 448 and 506(ii) of the Indian Penal Code., Mr. Manohara Reddy, Number 5/34-35 41, 11 Cross Behind Lyappa Temple, Uma Shankar Nagar, Hosur; Mrs. V. Bharathi, Number 6/3, New Balaji Nagar, Railway Station Road, Hosur; Mrs. K. Selvi, Number 154, Upstairs, Opposite Court Complex, Hosur 635109; and Mr. Sankar, Seerianahalli Village and Post, Palacode Taluk, Dharmapuri District 636808. The Bar Council of Tamil Nadu and Puducherry has passed a prohibitory order vide Resolution Number 278/2022 dated 04.05.2022, at the disposal of disciplinary proceedings pending against them, by considering the order passed by the Honourable Madras High Court in Criminal Original Petition Numbers 2302 and 4174/2021 dated 18.04.2022 for filing fake motor accident claim petitions before the courts using fabricated medical bills., Mr. J. Lenin Clemenceau Roberts, Number 43, Royal Nagar, Manavely, Ariyankuppam, Puducherry. The Bar Council of Tamil Nadu and Puducherry has passed a prohibitory order vide Resolution Number 283/2022 dated 04.05.2022, at the disposal of disciplinary proceedings pending against him, as he interfered with the administration of the Bar Council, insisted on enrolling a person as an advocate against the norms, posted defamatory messages on social media, and practiced as an advocate under another name, violating the provisions of the Advocates Act, 1961 and Bar Council of India Rules., The Registrar, Supreme Court, New Delhi; the Secretary, Bar Council of India, New Delhi; all Secretaries of other State Bar Councils; the Registrar, Madras High Court, Chennai and the Registrars of all High Courts in India; all Principal District Judges in the State and the Chief Judge, Puducherry; the parties concerned; the Notice Boards; the Principal Judge, City Civil Court, Chennai; the Chief Judge, Court of Small Causes, Chennai; the Sales Tax Appellate Tribunal, Chennai; the Income Tax Appellate Tribunal, Chennai; the State Transport Appellate Tribunal, Chennai; the Additional Bench Sales Tax Tribunal, Madurai and Coimbatore; the Tribunal for Disciplinary Proceedings, Chennai; the Central Administrative Tribunal, Chennai; the Labour Courts, Chennai, Madurai and Coimbatore; the Chief Metropolitan Magistrate, Egmore, Chennai; the Chief Secretary to the Government of Tamil Nadu, Chennai; the Secretary to the Government, Law Department, Chennai; the Secretary, Home Department, Government of Tamil Nadu, Chennai; the Director‑General of Police, State of Tamil Nadu; the Commissioner of Police, Chennai City; the members of this Bar Council including Co‑opted Members; all Bar Associations in the State of Tamil Nadu; the Madras High Court Advocates Association, Madras Bar Association, Women Lawyers Association, Law Association, Tamil Nadu Advocates Association, Chennai – are kindly requested to circulate the copies of this notification to all officers under their jurisdiction and to display these notifications on their notice boards.
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Criminal Revision No. 535 of 2023\nManoj Kumar (also known as Manoj Sao), son of Deoki Sao, resident of Village and Post Office Jamu, Police Station Markacho, District Koderma, Jharkhand. Petitioner\nVersus\n1. The State of Jharkhand\n2. Deoki Sao, son of Late Bodhi Sao, resident of Village and Post Office Jamu, Police Station Markacho, District Koderma, Jharkhand. Opposite Parties\nFor the Petitioner: Mr. Bharat Kumar, Advocate\nFor the State: Mr. Shashi Kumar Verma, Additional Public Prosecutor\nFor Opposite Party No. 2: Mr. Abhilash Kumar, Advocate\nCourt of Additional Venue on: 30/11/2023\nPronounced on: 05/01/2024, This Criminal Revision has been preferred against the impugned order dated 15/03/2023 passed by the Principal Judge of the Family Court, Koderma in Original Maintenance Case No. 11 of 2022, whereby the Court below allowed the application under Section 125 of the Code of Criminal Procedure directing the petitioner to pay a maintenance amount of Rs. 3,000 per month to the opposite party No. 2 (the father)., The brief facts leading to this revision are that a maintenance application under Section 125 of the Code of Criminal Procedure was moved on behalf of the father against his younger son. The father alleged that he is an old person having two sons, Pradip Kumar and Manoj Kumar. He described his younger son, Manoj Kumar, as quarrelsome, cruel and manhandling. The father had transferred his land to both sons on 21/02/1994, comprising a total area of 3.9835 acres, which was divided equally and cultivated by both. The elder son Pradip Kumar is maintaining him, whereas Manoj Kumar has not been maintaining him and has been insulting and assaulting him. Manoj Kumar also runs a shop in the village, earning Rs. 50,000 per month and Rs. 2,00,000 per annum from the agricultural land. On 02/11/2021, he assaulted and injured his father, who was treated by Dr. Daljeet Singh. Consequently, the father claimed a maintenance amount of Rs. 10,000 per month from Manoj Kumar., On behalf of the opposite party Manoj Kumar, a show‑cause reply was filed stating that the petitioner is his father and a habitual litigant with several cases pending in different courts of Koderma. The father was attempting to sell ancestral property, which the opposite party opposed, leading to annoyance and threats. The opposite party alleged that he, together with his other son Pradip Kumar, tortured the father and filed several cases against him. He further claimed that the petitioner is money‑mindful, has many sources of income, and filed the maintenance application to harass him. The opposite party prayed for dismissal of the maintenance application., On behalf of the petitioner, oral evidence examined P.W.‑1 Pradip Kumar, P.W.‑2 Vakil Sao, and P.W.‑3 Deoki Sao (the petitioner himself)., On behalf of the opposite party, oral evidence examined O.P.W.‑1 Gudia Devi, O.P.W.‑2 Arjun Sao, and O.P.W.‑3 Manoj Kumar., The Trial Court, after hearing the rival submissions of counsel for the parties, passed the impugned judgment on 15/03/2023, allowing the maintenance application and directing the opposite party No. 2 to pay Rs. 3,000 per month to the petitioner (his father) from the date of application, i.e., 15/02/2022. The arrears of maintenance were directed to be paid within two months., Aggrieved by the impugned judgment, the instant Criminal Revision has been preferred on behalf of the petitioner‑younger son on the grounds that the order passed by the Court below is contrary to law. The maintenance amount awarded is not proportionate to the son’s income. No affidavit disclosing the petitioner’s assets and liabilities was filed. From the deposition of the witnesses, it is evident that the father earns his livelihood from agriculture and a brick kiln. The Court below failed to appreciate the evidence in proper perspective. The petitioner prays that this Criminal Revision be allowed and the impugned judgment set aside., For disposal of this Criminal Revision, the following points of determination are framed: (1) Whether the finding recorded by the Court below on the point of determination that the father is unable to maintain himself and the son has been neglecting to maintain his father is based on proper appreciation of evidence; (2) Whether the quantum of maintenance is proportionate in view of the income and liability of the son, the petitioner herein., In the maintenance application, the father (P.W.‑3 Deoki Sao) stated that he is an old‑age person with two sons, Pradip Kumar (elder) and Manoj Kumar (younger, the petitioner). He resides with his elder son, who looks after him, while his younger son neglects to maintain him, humiliates him by hurling abuse and assaulting him, and has no source of income of his own because the ancestral agricultural land was transferred equally to both sons. On behalf of the opposite party Manoj Kumar, it was contended that he has not been neglecting his father, who has independent income from agricultural land and a brick kiln and is able to maintain himself. The opposite party alleged that the maintenance application was filed to harass the father after the father opposed the transfer of ancestral property., The petitioner examined three witnesses: P.W.‑1 Pradip Kumar, the elder son, who in his examination‑in‑chief said that his father Deoki Sao is a good person, while his brother Manoj Kumar is quarrelsome and does not maintain his father. He stated that Manoj Kumar runs a shop in the village, earning Rs. 50‑60 thousand per month and Rs. 2,00,000 per annum from agricultural land. In cross‑examination, Pradip Kumar clarified that the father had four acres of agricultural land, divided into three parts, with less than one and a half acre cultivated by the father, who lives with him and is maintained by him. He added that the land was divided again in 2007 and that Manoj Kumar earns Rs. 40‑50 thousand per month from his grocery shop and has one son and one daughter. P.W.‑2 Vakil Sao, in his examination‑in‑chief, described Manoj Kumar as quarrelsome, cruel and manhandling, hurling abuse and assaulting his father, and earning Rs. 40‑50 thousand per month from his shop. In cross‑examination, he stated that two acres of land were given to Manoj Kumar by his father and are cultivated by Manoj Kumar, while Deoki Sao does nothing but resides in the house. P.W.‑3 Deoki Sao, the father, in his examination‑in‑chief, said that his younger son does not maintain him. He explained that in 1994 he divided his agricultural land equally between his two sons, both of whom cultivate it. He also mentioned that Manoj Kumar runs a grocery shop earning Rs. 50,000 per month. In cross‑examination, he added that he has two sons and four daughters, that Manoj Kumar has been residing separately for the last 15‑16 years, that each son received two acres of agricultural land, and that his elder son has been maintaining him for the last 15 years while he himself has no agricultural land., The opposite party witnesses were examined as follows: O.P.W.‑1 Gudia Devi, who stated in her examination‑in‑chief that Deoki Sao is her father‑in‑law, runs a brick kiln business earning Rs. 4,050 thousand per month, and receives Rs. 5,000 per month from house rent. In cross‑examination, she said that her husband runs a grocery shop in the village earning Rs. 10,000 per month. O.P.W.‑2 Arjun Sao, in his examination‑in‑chief, said that Deoki Sao runs a brick kiln business, cultivates agricultural land, and receives rent from two houses, indicating a good income. In cross‑examination, he mentioned that Manoj Kumar also drives an auto‑rickshaw (income unknown) and runs a grocery shop in the village, and that all four daughters of Deoki Sao are married. O.P.W.‑3 Manoj Kumar, in his examination‑in‑chief, said that he is the younger son of Deoki Sao, whose father runs a brick kiln business and sells vegetables, earning Rs. 50‑60 thousand per month. In cross‑examination, he stated that he cultivates agricultural land, runs a shop in the village, and that his father built a house with 24 rooms, of which 12 were given to him and 12 to his elder brother, and that he resides in that house with his family and runs his shop there. He denied that he has not maintained his father., From the evidence adduced on behalf of both parties, it is proved that the father Deoki Sao is a senior citizen aged about 60 years, has two sons, and resides with his elder son Pradip Sao, while his younger son Manoj Sao has been residing separately for more than 15 years. In 1994, he gave two acres of land to each son equally; Manoj Sao cultivates his share and earns from it. Both the father and his elder son state that the father does not maintain himself and is being maintained by the elder son, not by the younger son Manoj Sao., The evidence presented by the opposite parties is outside the pleadings. In the show‑cause reply, Manoj Sao never stated that his father has a brick kiln; he only mentioned income from agricultural land. Neither Manoj Kumar nor his witnesses stated that Manoj Sao has been maintaining his father; all witnesses, including Manoj Sao, admitted that the father gave two acres of land to him, which he cultivates, and that the house in which he resides was built by his father and contains 12 rooms where he runs a grocery shop., The following quotations from scriptures are reproduced to show the importance of parents: In veneration, the Preceptor excels ten Sub‑teachers; the Father a hundred preceptors, and the Mother a thousand Fathers. In the Mahabharata, the Yaksha asked Yudhisthira: What is weightier than the earth itself? What is higher than the heavens? What is fleeter than the wind? And what is more numerous than grass? Yudhisthira answered: the mother is weightier than the earth; the father is higher than the heaven; the mind is fleeter than the wind; and our thoughts are more numerous than grass., The Honorable Supreme Court in Badshah v. Urmila Badshah Godge and another, (2014) 1 SCC 188, held that courts must adopt a social‑context adjudication approach rather than a purely adversarial one, especially in matters of social justice. The Court emphasized that maintenance provisions fall within this category, aiming to empower the destitute and achieve equality and dignity of the individual., In view of the evidence, the first point of determination is decided in favour of the father and against the son. The second point of determination—whether the quantum of maintenance is proportionate to the son’s income and liability—is also decided in favour of the father. The son earns Rs. 40‑50 thousand per month from his grocery shop, Rs. 2,00,000 per annum from agricultural land, and has a house with 12 rooms received from his father. Tentatively, his total income is about Rs. 30,000 per month. The Trial Court directed only Rs. 3,000 per month, i.e., one‑tenth of his income, which is not disproportionate. Accordingly, both points of determination are decided in favour of the father., In view of the findings recorded by the Court below on the above points of determination, the impugned judgment needs no interference. Accordingly, this Criminal Revision is dismissed and the order passed by the Family Court, Koderma is affirmed., A copy of this order shall be communicated to the concerned Court through fax.
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Candidates wishing to file a complaint to the Grievance Redressal Committee shall log in with their assigned ID only for downloading the Response Sheet. Note: The response sheet available in your Common Law Admission Test account is against the provisional answer keys. So, when computing your final score, candidates are advised to refer to the modified answer keys published. Candidates shall fill in the details given in the form for grievance redressal and sign the Declaration given in the Performa for filing the complaint. The candidates shall send the scanned copies of the documents required in support of their grievance along with the Response Sheet. Without the signature on each document including the Response Sheet, the grievance application shall not be considered. Along with the duly filled form and accompanying documents, the candidates shall send their complaints only to grievance@consortiumofnlus.ac.in by 5 pm on Monday that is 12th October 2020. No grievance received after the above deadline shall be entertained. No grievance about not following instructions shall be entertained as each candidate was expected to follow instructions. No grievance for the change of reservation category or preferences of universities shall be considered. No candidate can file more than one grievance under sections A and B. Candidates shall make themselves available for hearing, if required, at the appointed time., Name of the candidate: Admit card number: Mobile number: Nature of grievance (brief explanation): A. Against Objections Committee's decision on technical issues. State grievance with reasons clearly in not more than 50 words. State why you do not agree with the Objections Committee in not more than 50 words. Documentary proof, if any, must be attached with signature on each page. B. About Response Sheet discrepancy. State grievance with reasons clearly in not more than 50 words. Documentary proof, if any, must be attached. Note: A copy of the Response Sheet duly signed by the candidate along with the following information must necessarily be provided: Number of questions attempted; Number of questions not attempted; Number of questions marked for Review; Number of times used clear response; Number of questions visited; Number of questions whose answers were changed. Solemnly affirm that the information provided above is true to the best of my knowledge.
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ORDER : (Per the Honourable Chief Justice Alok Aradhe) Mr. I. Mallikarjuna Sharma, learned counsel for the petitioners. Ms. K. Mani Deepika, learned counsel for respondents Number 1 to 3., In this writ petition, the petitioners have assailed the validity of Sections 5, 6 and 15 of the Press and Registration of Books Act, 1867 (hereinafter referred to as the Act)., The facts giving rise to filing of this writ petition briefly stated are that the petitioners print and publish a fortnightly law journal, namely Law Animated World. Admittedly, the aforesaid law journal is now being published only online., The petitioner Number 4, namely I. Balamani, submitted an application on 16.08.2004 to the Magistrate for Newspapers enclosing an application in Annexure‑III to the Registrar of Newspapers for India for verification of title. However, the said application was not forwarded to the Registrar of Newspapers for India even after two months on the ground that the user charges of Rs. 2,000/- were not paid by the petitioners. The petitioner Number 4 thereupon made a complaint on 16.10.2004 to respondent Number 5 stating that the demand of user charges to the extent of Rs. 2,000/- is arbitrary and illegal., The petitioners filed this writ petition on 19.04.2005 in which the validity of Sections 5, 6 and 15 of the Act has been assailed on the ground that the same are violative of the fundamental rights guaranteed to the petitioners under Articles 14, 19(1) and 21 of the Constitution of India., Learned counsel for the petitioners submitted that Section 5 of the Act prescribes the rules only as to publication of newspapers, whereas the same requirement is not prescribed in respect of books. It is therefore submitted that Section 5 of the Act is violative of Article 14 of the Constitution of India. It is contended that the requirement contained in Sections 5 and 6 of the Act is violative of the fundamental rights guaranteed to the petitioners under Article 19(1) of the Constitution of India and the procedure prescribed in Sections 5 and 6 is not reasonable, fair and just. Therefore, the same constitutes infraction of Article 21 of the Constitution of India., On the other hand, learned counsel for respondents Number 1 to 3 has submitted that the provisions of the Act are intra vires and have been enacted to lend certain discipline to the exercise of printing of newspapers., We have considered the submissions made by both sides and have perused the record., The Act is enacted with an object of regulating the printing presses and newspapers, for the preservation of copies of books and newspapers printed in India and for the registration of such books and newspapers. The said Act has been amended by the Jan Vishwas (Amendment of Provisions) Act, 2023. However, by the aforesaid amendment, Sections 5, 6 and 15 of the Act have not been amended., Section 1 of the Act is the definitions section in which the expressions book and newspaper have been defined as under: Book includes every volume, part of a volume, and pamphlet, in any language and every sheet of music, map, chart or plan separately printed. Newspaper means any printed periodical work containing public news or comments on public news., Section 5 of the Act deals with the rules as to publication of newspapers, whereas Section 6 of the Act deals with authentication of declaration. Sections 5 and 6 of the Act are extracted below for the facility of reference: Rules as to publication of newspapers: No newspaper shall be published in India except in conformity with the rules hereinafter laid down: (1) Without prejudice to the provisions of section 3, every copy of every such newspaper shall contain the names of the owner and editor thereof printed clearly on such copy and also the date of its publication. (2) The printer and the publisher of every such newspaper shall appear in person or by agent authorised in this behalf in accordance with rules made under section 20, before a District, Presidency or Sub‑Divisional Magistrate within whose local jurisdiction such newspaper shall be printed or published and shall make and subscribe, in duplicate, the following declaration: I, A.B., declare that I am the printer (or publisher, or printer and publisher) of the newspaper and to be printed or published, or to be printed and published, as the case may be at ______. The last blank in this form of declaration shall be filled up with a true and precise account of the premises where the printing or publication is conducted. (2‑A) Every declaration under rule (2) shall specify the title of the newspaper, the language in which it is to be published and the periodicity of its publication and shall contain such other particulars as may be prescribed. (2‑B) Where the printer or publisher of a newspaper making a declaration under rule (2) is not the owner thereof, the declaration shall specify the name of the owner and shall also be accompanied by an authority in writing from the owner authorising such person to make and subscribe such declaration. (2‑C) A declaration in respect of a newspaper made under rule (2) and authenticated under section 6 shall be necessary before the newspaper can be published. (2‑D) Where the title of any newspaper or its language or the periodicity of its publication is changed, the declaration shall cease to have effect and a new declaration shall be necessary before the publication of the newspaper can be continued. (2‑E) As often as the ownership of a newspaper is changed, a new declaration shall be necessary. (3) As often as the place of printing or publication is changed, a new declaration shall be necessary: Provided that where the change is for a period not exceeding thirty days and the place of printing or publication after the change is within the local jurisdiction of the Magistrate referred to in rule (2), no new declaration shall be necessary if (a) a statement relating to the change is furnished to the said Magistrate within twenty‑four hours thereafter; and (b) the printer or publisher or the printer and publisher of the newspaper continues to be the same. (4) As often as the printer or the publisher who shall have made such declaration as is aforesaid shall leave India for a period exceeding ninety days or where such printer or publisher is by infirmity or otherwise rendered incapable of carrying out his duties for a period exceeding ninety days in circumstances not involving the vacation of his appointment, a new declaration shall be necessary. (5) Every declaration made in respect of a newspaper shall be void, where the newspaper does not commence publication (a) within six weeks of the authentication of the declaration under section 6, in the case of a newspaper to be published once a week or oftener; and (b) within three months of the authentication of the declaration under section 6, in the case of any other newspaper, and in every such case, a new declaration shall be necessary before the newspaper can be published. (6) Where, in any period of three months, any daily, tri‑weekly, bi‑weekly, weekly or fortnightly newspaper publishes issues the number of which is less than half of what should have been published in accordance with the declaration made in respect thereof, the declaration shall cease to have effect and a new declaration shall be necessary before the publication of the newspaper can be continued. (7) Where any other newspaper has ceased publication for a period exceeding twelve months, every declaration made in respect thereof shall cease to have effect, and a new declaration shall be necessary before the newspaper can be republished. (8) Every existing declaration in respect of a newspaper shall be cancelled by the Magistrate before whom a new declaration is made and subscribed in respect of the same: Provided that no person who does not ordinarily reside in India, or who has not attained majority in accordance with the provisions of the Indian Majority Act, 1875 (19 of 1875), or of the law to which he is subject in respect of the attainment of majority, shall be permitted to make the declaration prescribed by this section, nor shall any such person edit a newspaper. Authentication of declaration: Each of the two originals of every declaration so made and subscribed as is aforesaid shall be authenticated by the signature and official seal of the Magistrate before whom the said declaration shall have been made: Provided that where any declaration is made and subscribed under section 5 in respect of a newspaper, the declaration shall not, save in the case of newspapers owned by the same person, be so authenticated unless the Magistrate is, on inquiry from the Press Registrar, satisfied that the newspaper proposed to be published does not bear a title which is the same as, or similar to that of any other newspaper published either in the same language or in the same State. Deposit: One of the said originals shall be deposited among the records of the office of the Magistrate, and the other shall be deposited among the records of the High Court of Judicature, or other principal Civil Court of original jurisdiction for the place where the said declaration shall have been made. Inspection and supply of copies: The Officer‑in‑charge of each original shall allow any person to inspect that original on payment of a fee of one rupee, and shall give to any person applying a copy of the said declaration, attested by the seal of the High Court of Judicature which has the custody of the original, on payment of a fee of two rupees. A copy of the declaration attested by the official seal of the Magistrate, or a copy of the order refusing to authenticate the declaration, shall be forwarded as soon as possible to the person making and subscribing the declaration and also to the Press Registrar., Thus, from a perusal of Section 5 of the Act, it is evident that it mandates that no newspaper shall be published except in conformity with the rules prescribed therein. Section 5(2) of the Act provides that the printer and the publisher of every such newspaper shall appear in person or by agent authorised in this behalf in accordance with rules made under Section 20, before a District, Presidency or Sub‑Divisional Magistrate within whose local jurisdiction such newspaper shall be printed or published and shall make and subscribe a duplication which has been prescribed therein. Section 5(2A) of the Act provides that every declaration under rule (2) shall specify the title of the newspaper, the language in which it is to be published and the periodicity of its publication and shall contain such other particulars as may be prescribed., Section 6 of the Act deals with authentication of declaration and provides that each of the two originals of every declaration so made and subscribed as aforesaid shall be authenticated by the signature and official seal of the Magistrate before whom the said declaration shall have been made., Section 15 of the Act provides for penalty for printing or publishing newspaper without conforming to rules. Section 15 reads as under: Penalty for printing or publishing newspaper without conforming to rules: (1) Whoever shall edit, print or publish any newspaper without conforming to the rules hereinbefore laid down, or whoever shall edit, print or publish or shall cause to be edited, printed or published any newspaper, knowing that the said rules have not been observed with respect to that newspaper, shall, on conviction before a Magistrate, be punished with fine not exceeding two thousand rupees, or imprisonment for a term not exceeding six months, or both. (2) Where an offence is committed in relation to a newspaper under sub‑section (1), the Magistrate may, in addition to the punishment imposed under the said sub‑section, also cancel the declaration in respect of the newspaper., There is a presumption of constitutional validity of a provision and the burden is on the person to plead and prove its unconstitutionality. It is trite law that a party invoking the protection of Article 14 has to make an averment with details to sustain such a plea and has to adduce material to establish its allegations and the burden is on the party to plead and prove that its right under Article 14 has been infringed [See: State of UP v. Kartar Singh]. It is well settled legal proposition that Article 14 can be invoked if unequals are treated equally or equals are treated differently. It is equally well settled in law that mere differentiation or inequality of treatment does not per se amount to discrimination within the inhibition of equal protection clause and to attract Article 14 it is necessary to demonstrate that selection or differentiation is unreasonable or arbitrary and does not rest on any rational basis having regard to the object which the legislature has in view while making the law in question. [See: Jaila Singh v. State of Rajasthan]. A party invoking the protection of Article 14 has to make an averment with details to sustain such a plea and has to adduce material to establish its allegations and the burden is on the party to plead and prove that its right under Article 14 has been infringed [See: Kartar Singh (supra)]. It is equally well settled that in the absence of any pleading, the challenge to the constitutional validity is to be rejected in limine [State of Haryana v. State of Punjab]., A Constitution Bench of the Honourable Supreme Court in Ram Krishna Dalmia v. Justice S.R. Tendolkar held that Article 14 of the Constitution of India forbids class legislation and it does not forbid reasonable classification for the purposes of legislation. However, to pass the test of permissible classification, two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure., In K.R. Lakshman v. Karnataka Electricity Board, it has been held that the concept of equality before law means that among equals the law should be equal and should be equally administered and that the likes should be treated alike. It has further been held by the Honourable Supreme Court that all that Article 14 guarantees is a similarity of treatment and not identical treatment and the guarantee of equal protection of law and equality before the law does not prohibit reasonable classification. It has also been held that equality before law does not mean that things which are different shall be treated as though they were the same. The Honourable Supreme Court has also held that there must be a nexus between the basis of classification and the object of the legislation and so long as the classification is based on a rational basis and so long as all persons falling in the same class are treated alike, there can be no question of violating the equality clause., The legislature itself has defined the books and newspapers separately. The wrath of Article 14 of the Constitution of India is attracted only when equals are sought to be treated differently. In the instant case, Sections 5, 6 and 15 of the Act which have been enacted with the salutary object of regulating an activity of printing of newspapers, cannot be struck down on the ground that the same do not provide for similar requirement in respect of a book which is different from newspaper. In the instant case, the equals are not sought to be treated differently. Therefore, the provisions, namely Sections 5, 6 and 15 of the Act, cannot be said to be arbitrary or discriminatory., Though Article 19(1)(a) of the Constitution of India confers a fundamental right to freedom of speech and expression, however the aforesaid right can be subjected to reasonable restrictions under Article 19(2) of the Constitution of India. The Parliament by enacting Sections 5 and 6 of the Act has sought to regulate the activity of publication of newspapers which is a reasonable restriction and it does not tantamount to infringement of fundamental right guaranteed to the petitioners under Article 19(1)(a) of the Constitution of India. The petitioners have the fundamental right of protection of life and personal liberty under Article 21 of the Constitution of India. Neither the fundamental rights guaranteed to the petitioners under Article 19(1) nor under Article 21 of the Constitution of India have been infringed, in the instant case, as the activity of publication of newspaper is sought to be regulated., The petitioners have not been able to rebut the presumption of constitutional validity of a provision. We hold that the provisions of the Act are intra vires and do not suffer from any infirmity., In the result, the writ petition fails and is hereby dismissed. Miscellaneous applications pending, if any, shall stand closed. However, there shall be no order as to costs.
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Applicant: Shrimati Jyoti. Opposite Party: State of Uttar Pradesh. Counsel for Applicant: Rajendra Kumar Srivastava. Counsel for Opposite Party: Government Advocate, Amrit Shanker Dubey. Honourable Justice Saurabh Shyam Shamshery, J., The High Court of Uttar Pradesh is convened through video conferencing. A video link sent to learned counsel for the applicant remained non‑responsive. Shri Amrit Shanker Dubey, learned counsel appearing on behalf of the informant, and the Additional Government Advocate appearing on behalf of the State, participated through video conferencing., The courts have been facing difficult times for the last one and a half years due to the COVID‑19 pandemic and have adopted various measures to adjust and overcome unexpected eventualities. Adhering to the COVID protocol, wearing masks, maintaining adequate distance and getting vaccinated are among the required precautions. In order to ensure the dispensation of justice, the courts have switched to virtual mode for hearing cases., The courts have relaxed advocates’ dress code, exempting coat and gown while appearing through video conference in the modalities issued from time to time. The Bar Council of India issued an administrative order dated 14 May 2020 stating that, in view of the medical advice and the circular dated 13 May 2020 issued by the Honourable Supreme Court of India, all advocates may presently wear plain white shirt, white salwar‑kameez or white saree with plain white neck band during hearings or proceedings before all the High Courts, other courts, tribunals, commissions and forums, and that no coats or gowns/robes are required to be worn during the period when the threat of spread of coronavirus looms large or until the Council issues another administrative order modifying this direction., Recently the High Court, other High Courts and even the Supreme Court of India have witnessed various incidents where many advocates adopted a very casual approach while appearing through virtual mode, wearing vests, T‑shirts or coloured shirts, in puja attire, while driving a scooter, taking a leisurely walk, sitting inside a stationary vehicle, from marketplaces, places with noisy surroundings, places with unpleasant backgrounds, keeping talking on phone or not paying attention to the court although video and audio were on, even an advocate appeared lounging on a bed and a lady advocate with a face pack on. Appearance of advocates in casual attire is very inappropriate and unacceptable in any circumstance., Advocates should understand that their appearance for hearing of cases through virtual mode from their house, office or chamber is like an extended courtroom and is as serious as attending court proceedings inside a courtroom. They are required to wear a plain white shirt, white salwar‑kameez or white saree with plain white neck band while appearing through virtual mode from a premise where, while addressing the court, they have a decent and presentable background with peaceful surroundings and remain attentive towards the court. It would be appreciated if they also wear a black coat., The High Court has earlier ignored many such casual appearances; however, it is constrained to observe the aforesaid as today, while hearing the present case through virtual mode, an advocate appearing on behalf of one of the parties wore a coloured shirt and did not show any remorse despite his conduct being objected to. The Court has shown leniency in not imposing any cost on the erring advocate., The office bearers of the Bar Associations of the High Court should advise their members not to adopt any casual approach while appearing before the High Court of Uttar Pradesh through virtual mode, as it may cause a hurdle in the administration of justice. The Registrar General of the High Court of Uttar Pradesh is directed to send a copy of this order to the Bar Association of the High Court forthwith. The present case is listed as fresh on 28 July 2021.
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Versus Appearance: Miss Urvashi K Mehta (11469) for the Applicant(s) No. 1 Respondent(s) No. 1 Date: 08/12/2023, The present successive application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with the FIR being C.R. No. I-11208057230026 of 2023 registered with the Rajkot Cyber Crime Police Station, Rajkot of the offence punishable under Sections 354(a)(c), 376, 376(D), 498(a), 506(2), 508, 509, 34, 114 and 201 of the Indian Penal Code as well as Sections 66(e) and 67(a) of the Information Technology Act., That the complainant got married with the son of the applicant‑accused somewhere in the year 2022 and thereafter she started living at her matrimonial home. There are in all total three members at her marital home i.e., mother‑in‑law, father‑in‑law and her husband. In the wedlock two baby boys were born. It is alleged that after some time of the marriage the father‑in‑law started instigating her husband to record nude photographs and videos of the complainant so that they could upload them on one particular porn website. Accordingly the husband started recording her nude videos on his mobile and thereafter forwarded them to the mobile of her father‑in‑law. The mother‑in‑law of the complainant was also aware of the same and all these acts were being done in the presence of the mother‑in‑law. As per the complainant, her marital family was in desperate need of money to prevent their hotel being sold out by the other partners, and they decided to record the nude videos of the complainant to upload on one porn website against which they would get money. Therefore the husband started recording their intimate moments on the camera of his mobile. The complainant told him not to do so, however her husband told her to do whatever his father was saying. She then complained to her mother‑in‑law, who also sided with her son and husband and told the complainant to act as per the say of her son and husband. Not knowing what to do, the complainant merely relented. It is also alleged that when the complainant was alone at home the father‑in‑law was molesting her. The husband made her do things which, according to the complainant, were unnatural. Thus, to fulfil their common intention, all the accused persons, in connivance with each other, have committed the said offence. The complainant had left with no other option but to seek legal help. Therefore she gathered courage and lodged the impugned FIR against all the accused persons., Learned advocate Miss Urvashi Mehta appearing for the applicant has submitted that the incident took place on 01 September 2022 and the impugned FIR was lodged on 13 August 2023 and the applicant‑accused was arrested on the same day, i.e., on 13 August 2023 and since then he is in jail. It is further submitted that now the investigation has been completed and charge‑sheet has also been filed. Learned advocate Miss Mehta has further submitted that the applicant‑accused is the mother‑in‑law of the complainant and it is alleged in the first information report that the present applicant‑accused has aided, instigated and abetted the accused No.2, i.e., the husband of the complainant to commit such an offence and, therefore, she has been arraigned as an accused. The only role attributed to her is that of abettor. Learned advocate Miss Mehta has submitted that the present applicant‑accused is a lady aged about 45 years and she has been behind the bar since 13 August 2023. It is further submitted that as far as the offence under the provisions of Sections 354(A)(C), 498(A), 508, 509, 34, 114 and 201 of the Indian Penal Code are concerned, the maximum punishment to be imposed is three years and for the offences punishable under Sections 506(2) of the Indian Penal Code and Sections 66(e), 67(a) of the Information Technology Act, the maximum punishment to be imposed is seven years. Learned advocate Miss Mehta has submitted that the applicant‑accused is a lady and nowhere in the entire body of the complaint is it alleged that she has aided or abetted her husband to make physical relationship with the complainant. Even there are no allegations against the father‑in‑law of forcing or pressurising the complainant to make physical relationship with him. The only allegations made against the father‑in‑law is that he was touching her private parts under the pretext of applying ointment on her private part. It is further submitted that in the entire body of the complaint, the only allegation made against the applicant is that when the complainant complained to her about such illegal demands at the end of her father‑in‑law and husband, the applicant‑accused took side of her son and husband which does not attract the provisions of Sections 376 and 376(D) of the Indian Penal Code. Even if it is presumed that the burden casts upon the prosecution to prove the foundational facts beyond all reasonable doubt the FIR did not contain the offence alleged against the petitioner for the offence punishable under Section 376 of the Indian Penal Code. It is further submitted that there is no instance narrated in the complaint that would touch upon the offence punishable under Section 498A of the Indian Penal Code., In such circumstances, learned advocate Miss Mehta prays that, having merit in this application, the same may be allowed and the applicant‑accused may be released on bail on any suitable terms and conditions., The learned Assistant Public Prosecutor appearing on behalf of the respondent State has opposed grant of regular bail looking to the nature and gravity of the offence. Learned Assistant Public Prosecutor has submitted that the role of the present applicant‑accused is clearly spelt out from the compilation of the charge‑sheet papers. Learned Assistant Public Prosecutor Mr. Mehta has further submitted that the present applicant‑accused has actively participated in the commission of the crime since the beginning and the said fact is clearly reflected from the statements of the witnesses. It is very categorically stated by the complainant that her husband and father‑in‑law were acting and behaving in such an unusual manner that cannot be acceptable in society. It is very specifically alleged in the complaint that all the accused persons were forcing the complainant to record her own nude videos by wearing a mask which would be uploaded on one particular porn website and by doing so, they would earn some amount from the said website. It is further submitted that the father‑in‑law of the complainant was behaving in a very indecent manner with the complainant in the presence of the applicant as well as her son and as and when the complainant tried to raise her voice against such an act at the end of the father‑in‑law, she was overpowered by all the family members. Not only that, the applicant also administered threat to develop physical relationship with the father‑in‑law and, therefore, the active involvement of the present applicant‑accused is clearly found out from the materials available on record. Learned Assistant Public Prosecutor has submitted that considering the role attributed to the applicant‑accused, this is a fit case wherein discretionary power of the Gujarat High Court is not required to be exercised in favour of the applicant‑accused., Learned advocate Mr Rahul Dave has submitted that he has received instructions to appear on behalf of the complainant to oppose the present bail application. Learned advocate Mr Dave has submitted that the applicant‑accused has played an active role in the commission of such a heinous crime and, therefore, she does not deserve any discretionary relief from the Gujarat High Court. It is further submitted that the complainant did not leave her matrimonial house on her own but she had to leave her marital house due to continuous and constant torture and mental harassment meted out by all the accused persons. Learned advocate Mr Dave has also submitted that the incident as alleged is of very serious nature. The complainant was threatened for dire consequences and, therefore, due to fear and shyness, she did not tell anything about such sexual assault upon her to anyone including her parents. Learned advocate Mr Dave has submitted that the present applicant‑accused was one of the members of the WhatsApp group in which such videos were shared. It is further submitted that during the course of investigation, mobile phones of all the accused persons were recovered by the police and they found that such videos were deleted and some of them were recovered by the police which has led to show the truthfulness of the allegations made by the complainant. The mobile phones are sent to the Forensic Science Laboratory and after the receipt of the report from the Forensic Science Laboratory, the picture would be more clear. It is pertinent to note that when such videos were being shared in the WhatsApp group, the applicant did not even try to stop such an act though she was member of the said group which clearly shows her involvement in the crime. Learned advocate Mr Dave has also submitted that being a lady, the applicant had not done anything to save the integrity of another lady and, therefore, she does not deserve any relief on the ground that she is a lady. Even in some of the photographs, the applicant‑accused is also found to be there along with her son touching the private parts of the complainant. Learned advocate Mr Dave has submitted that as the father‑in‑law of the complainant is believing in superstitions, when the complainant was seven months pregnant, she was forcibly compelled to give a premature birth to a child by her in‑laws which is evident from the statement of the doctor which is part and parcel of the charge‑sheet., In such circumstances, learned advocate Mr Dave prays that the present application being devoid of any merit, the same be rejected and the applicant‑accused may not be enlarged on bail., I have given my anxious consideration to the submissions made by the learned advocates appearing for the respective parties and perused the material on record., In the light of the submissions made by the respective learned advocates, the following points arise for my consideration: Whether cognizance being taken against the applicant‑accused for offence punishable under Section 376 of the Indian Penal Code is tenable in law? Whether the allegations against the applicant‑accused for other offences are tenable in law?, To consider this issue, it is germane to notice what drove the complainant to register the complaint and what drives the applicant‑accused to the Gujarat High Court. The entire issue springs from the complaint registered by the wife alleging commission of brutal sexual acts by the husband, father‑in‑law and mother‑in‑law against her. After registration of the complaint, investigation was conducted into the matter. After investigation, the police have filed their final report/charge sheet., The charge sheet filed by the police after investigation also depicts graphic details of the lust of the husband of the complainant and her father‑in‑law whether for money or for sexual satisfaction in which the applicant‑accused has also very actively participated. Herein the case on hand, the allegations are very serious in nature. The husband himself has recorded their lovemaking moments on the camera of his mobile which were subsequently shared in one WhatsApp group of the family and also uploaded on one porn website, namely, charubate‑free adult. It is not that the husband is doing such an illegal activity with any woman with whom he has an illicit relationship. The victim in the present case is his own wife whose videos were being uploaded on the porn website by her husband itself. The applicant‑accused is the mother‑in‑law of the complainant who was also very well aware about the said fact. The allegations are also to the effect that the father‑in‑law installed a CCTV camera in the bedroom of the complainant and both the applicant‑accused and the father‑in‑law were watching the lovemaking moments of their son and daughter‑in‑law on the television screen in their bedroom. Not only that, they compelled their son to take nude videos and photographs of the complainant and shared it on one family WhatsApp group in which the applicant‑accused is also a member of the group. Therefore, it appears that the present applicant‑accused was very well aware about such an illegal and shameful act. It is alleged by the complainant that initially when she complained about the sexual assault meted out by her husband and father‑in‑law to the applicant‑accused, she took side of her son and husband and told the complainant to keep quiet. During the course of investigation, the investigating officer has retrieved some photographs in which the applicant‑accused is clearly shown with her son touching the private part of the complainant. Therefore, it cannot be said that the applicant‑accused was not aware about the sexual assault and harassment meted out to the complainant. It is alleged by the complainant that in order to earn money from a particular porn website, they had committed such a heinous act with her as they were in desperate need of money to save their hotel from being sold out by the other partners. Whatever might be the reason behind doing such a heinous and shameful act, the same must be strictly criticized and the accused must be punished in order to prevent commission of such type of offences in future. The applicant‑accused being a lady had not done anything to save the integrity of another lady when the complainant told her about each and everything that happened with her. She had to prevent her husband and son from doing such an act and by not doing so, she has played an equal role to that of the other two accused, i.e., the husband of the complainant and the father‑in‑law., Post Republic, India is governed by the Constitution. The Constitution treats woman equal to man and considers marriage as an association of equals. The Constitution does not in any sense depict the woman to be subordinate to a man. The Constitution guarantees fundamental rights under Articles 14, 15, 19 and 21 which are right to live with dignity, personal liberty, bodily integrity, sexual autonomy, right to reproductive choices, right to privacy, right to freedom of speech and expression. Under the Constitution, the rights are equal; protection is also equal., Marital rape is illegal in fifty American States, three Australian States, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia and several others. In the United Kingdom, which the present Code largely draws from, the exception has also been removed pursuant to a judgment rendered by the House of Lords in R v. R in the year 1991. Therefore, the Code that was made by the rulers then has itself abolished the exception given to husbands. Therefore, a man sexually assaulting or raping a woman is amenable to punishment under Section 376 of the Indian Penal Code. In most of the cases of such a nature, the usual practice is that if the man is the husband, performing the very same acts as that of another man, he is exempted. In my considered view, the same cannot be countenanced. A man is a man; an act is an act; rape is a rape, be it performed by a man the husband on the woman wife., Gender violence is most often unseen and is shrouded in a culture of silence. The causes and factors of violence against women include entrenched unequal power equations between men and women that foster violence and its acceptability, aggravated by cultural and social norms, economic dependence, poverty and alcohol consumption, etc. In India, the culprits are often known to the woman; the social and economic costs of reporting such crimes are high. General economic dependence on family and fear of social ostracisation act as significant disincentives for women to report any kind of sexual violence, abuse or abhorrent behaviour. Therefore, the actual incidence of violence against women in India is probably much higher than the data suggests, and women may continue to face hostility and have to remain in environments where they are subject to violence. This silence needs to be broken. In doing so, men, perhaps more than women, have a duty and role to play in averting and combating violence against women., Sexual violence is varied in degree. At the highest, or rather most aggravated level, is rape with or without attendant violence. However, there are a substantial number of incidents which fall within the rubric of sexual violence, that amount to offences under various penal enactments. These outlaw behaviours such as stalking, eve‑teasing, shades of verbal and physical assault, and harassment. Social attitudes typically characterize this latter category of crimes as minor offences. Such minor crimes are, regrettably, not only trivialised or normalised, rather they are even romanticised and therefore, invigorated in popular lore such as cinema. These attitudes which indulgently view the crime through prisms such as boys will be boys and condone them, nevertheless have a lasting and pernicious effect on the survivors., The United Nations Organisation has defined violence against women as any act of gender‑based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life. The effect of offensive behaviour against women, which laws criminalise physical, verbal, or other acts which threaten or give them acute discomfort, undermining their dignity, self‑worth and respect, is to silence or subdue the survivor., In The Standard of Social Justice as a Research Process, two scholars of psychology made a strong indictment of the (contextually Canadian) criminal justice process: The more general indictment of the current criminal justice process is that the law and legal doctrines concerning sexual assault have acted as the principal systemic mechanisms for invalidating the experiences of women and children. Given this state of affairs, the traditional view of the legal system as neutral, objective and gender‑blind is not defensible. Since the system is ineffective in protecting the rights of women and children, it is necessary to re‑examine the existing doctrines which reflect the cultural and social limitations that have preserved dominant male interests at the expense of women and children., This now takes me to the next point with regard to the alleged offences against the applicant which are offences punishable under Sections 498A, 354 and 506 of the Indian Penal Code. The complaint clearly brings out the offence punishable under Section 498A of the Indian Penal Code. Section 354 of the Indian Penal Code which deals with assault or criminal force on a woman with intent to outrage her modesty is clearly met in the complaint. Section 506 of the Indian Penal Code deals with criminal intimidation which is also met in the complaint. Therefore, the offences punishable under Sections 498A, 376, 354 and 506 of the Indian Penal Code are all clearly spelt out in the complaint, in the statements recorded during the investigation and the contents of the summary in the charge sheet. None of the grounds urged by the learned advocate with regard to the offences alleged against the wife merit acceptance. There are various disputed questions of fact that have to be thrashed out only in a full‑fledged trial. If the applicant has anything in her defence on the allegations, it is for her to put up such defence before the Sessions Court and come out clean in the trial. Therefore, at this juncture, this Court deems it fit not to interfere with the judgment passed by the trial court, particularly, in the light of the aforesaid allegations., For the foregoing reasons, this application fails and is hereby rejected.
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IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HONOURABLE SHRI JUSTICE VISHAL DHAGAT ON THE 6TH OF NOVEMBER 2023 MISCELLANEOUS CRIMINAL CASE NO. 6138 OF 2010 BETWEEN: ASHUTOSH TIWARI AND KAMLESH SHUKLA (APPLICANTS, BY SHRI VIPIN YADAV, ADVOCATE) AND THE STATE OF MADHYA PRADESH THROUGH POLICE STATION JAITPUR SHAHDOL (MADHYA PRADESH) AND VIKAS KHARE (RESPONDENTS, BY SHRI AKSHAY NAMDEO, GOVERNMENT ADVOCATE)., This petition came up for hearing on this day and the High Court of Madhya Pradesh passed the following order., Petitioners have filed this petition under Section 482 of the Criminal Procedure Code for quashing of proceedings in complaint case No. 218/2010, which is pending before the Chief Judicial Magistrate, Shahdol., Counsel appearing for petitioners submitted that a stay over proceedings was granted by this Court by order dated 07 July 2010 till the next date of hearing. Thereafter, the stay was continued by this Court on 15 March 2013 and on 02 May 2014. After that date, the case was not listed before this Court. It is submitted that, as per his information, the complaint case is pending before the Court. Counsel appearing for petitioners makes a prayer for hearing of the case since the matter has been pending before this Court since 2010., Counsel for petitioners submitted that no offence under Section 294, Section 506(II) of the Indian Penal Code and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is made out against petitioners. According to the statement given by the complainant in Court, a meeting was taking place in the staff room of the school. During the meeting, petitioners had abused the complainant by the caste name ‘Chamar’. It is submitted that the utterances of disparaging remark were made in a staff room of the school, which is not within public view; therefore, no offence under Section 3(1)(x) of the Act will be made out against petitioners., It is further submitted that as per Section 294 of the Indian Penal Code, an obscene act, song or any other utterance has to be made in a public place. The staff room of a school is not a public place. The word ‘public’ is defined in Section 12 of the Indian Penal Code as ‘any class of public’ or ‘any community’. From this definition, public means common persons or citizens. A public place will be a place where the public has access. The staff room of a school is not a public place and the general public does not have access to it. Only teachers can use the staff room for particular purposes. In these circumstances, it is submitted that an offence under Section 294 of the Indian Penal Code will also not be made out against petitioners., Counsel appearing for petitioners further argued that an offence under Section 506 of the Indian Penal Code is also not made out against petitioners. Public intimidation is defined in Section 503 of the Indian Penal Code, which says that whoever threatens another with injury to his person, reputation or property with intent to cause alarm to that person is punishable under Section 506. In the statement given in Court, it has not been stated that any alarm was caused to the complainant. It is only stated that he was threatened but nothing was stated that he was alarmed by such threat. In these circumstances, prayer is made for quashing of proceedings in the complaint case., The Government Advocate appearing for the State submitted that a private complaint case has been filed and Respondent No. 2 is not prosecuting the case. In the interest of justice, it is argued that offences under Section 294, Section 506 of the Indian Penal Code and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act are made out against petitioners. Petitioners had abused the complainant with the word ‘Chamar’ in the staff room where other teachers were present; therefore, an offence under Section 3(1)(x) of the Act will be made out. Similarly, because other teachers were present, the staff room is deemed a public place. In these circumstances, the petition may be dismissed., Respondent No. 2 was served and was represented by counsel. Today, when the matter was taken up for hearing, no one appeared for Respondent No. 2. It appears that the respondent may have lost interest in prosecuting the case; therefore, Respondent No. 2 is proceeded ex parte., The learned counsel for the petitioner as well as the Government Advocate appearing for the respondent-State were heard., Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 reads: ‘(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view.’ Section 294 of the Indian Penal Code reads: ‘Whoever, to the annoyance of others, (a) does any obscene act in any public place, or (b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment for a term which may extend to three months, or with fine, or with both.’ Section 503 of the Indian Penal Code reads: ‘Criminal intimidation. Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.’, On going through the aforesaid definitions, it is clear that the offence under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is required to be committed in public view. The staff room is not a place within public view; therefore, no offence under Section 3(1)(x) is made out against petitioners., The abuses alleged to have been given by petitioners were also not in a public place. The staff room is not a public place and the common public or citizens do not have access to it without permission of the school. In these circumstances, an offence under Section 294 of the Indian Penal Code is also not made out against petitioners., On going through the statement given by the complainant (Petitioner Witness 1) in Court, nowhere is it stated that an alarm was caused to him when abuses were made against his reputation. In these circumstances, an offence under Section 506 of the Indian Penal Code is also not made out against petitioners., Considering the aforesaid facts and circumstances of the case, the petition filed by petitioners under Section 482 of the Criminal Procedure Code is allowed. Proceedings in complaint case No. 218/2010 registered against petitioners for having committed offences under Section 294, Section 506(II) of the Indian Penal Code and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act pending before the Chief Judicial Magistrate, Shahdol District, Shahdol are quashed., The petition filed by petitioners is allowed and disposed of. Certified copy as per rules.
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Chief Justice's Court Petitioner: In Re Respondent: Zila Adhivakta Sangh Allahabad. Counsel for Petitioner: None. Counsel for Respondent: Advocate General, Ashok Kumar Tiwari, Advocate Honorable Pritinker Diwaker, Chief Justice Honorable Mrs. Sunita Agarwal, Honorable Surya Prakash Kesarwani, Honorable Manoj Kumar Gupta, Honorable Anjani Kumar Mishra, Honorable Dr. Kaushal Jayendra Thaker, Honorable Mahesh Chandra Tripathi., Owing to the continuous strike by the Kanpur Bar Association and the Lawyers' Association, Kanpur Nagar, this matter was taken up by the Seven Judges Bench of the Allahabad High Court and the following orders were passed., In the given facts and circumstances of the case, we feel it appropriate to issue notices to Sri Naresh Chandra Tripathi, President, Kanpur Bar Association; Sri Anurag Srivastava, General Secretary, Kanpur Bar Association; Sri Ravindra Sharma, President, the Lawyers' Association, Kanpur Nagar; and Sri Sharad Kumar Shukla, General Secretary, the Lawyers' Association, Kanpur Nagar. Notices be served upon the aforesaid office bearers through the Commissioner of Police, Kanpur Nagar, directing them to remain present personally before the Allahabad High Court on 07.04.2023 at 10:00 a.m., As an interim measure, it is directed that the lawyers shall resume their work forthwith to purge the contempt and, in case any hindrance is created by any lawyer or office bearer, the same would be viewed seriously., The aforesaid noticees have been duly served and, in compliance thereof, Sri Naresh Chandra Tripathi, President, Kanpur Bar Association; Sri Anurag Srivastava, General Secretary, Kanpur Bar Association; Sri Sharad Kumar Shukla, General Secretary, the Lawyers' Association, Kanpur Nagar; Sri Sarvesh Yadav, Vice President, the Lawyers' Association, Kanpur Nagar (in the capacity of President, the Lawyers' Association, Kanpur Nagar); and other office bearers, namely Sri Anoop Kumar Shukla, Vice President, Kanpur Bar Association and Sri Ajay Pratap Singh Chauhan, Secretary, Kanpur Bar Association, are present in the Allahabad High Court., In compliance with the order dated 06.04.2023, Sri Panchu Ram Maurya, Chairman, Bar Council of Uttar Pradesh, along with Sri Ashok Kumar Tiwari, learned counsel appearing for the Bar Council of Uttar Pradesh, are also present before the Allahabad High Court., As per the report of the District Judge, Kanpur Nagar dated 06.04.2023, together with enclosures taken on record, the strike is still continuing and the judicial work continues to be hampered in Kanpur Nagar despite the aforesaid orders passed by this Court., Prima facie, it appears that the aforesaid noticees have failed to discharge the obligation upon them to call off the strike and to resume the judicial work, as directed by this Court yesterday. Thus, prima facie, they appear to be in contempt of the Allahabad High Court., When this Court asked the President, Kanpur Bar Association, Sri Naresh Chandra Tripathi, why the strike has not been called off, he stated that the strike was not declared by him but by the general body of the Association. He admitted that he received the notice issued by this Court yesterday at 12:50 p.m., but did not make any effort to call the general house and only claims to have held a meeting of the office bearers, who decided to continue with the strike. He further submitted that he had never stopped anyone from entering the Court premises and that the lawyers, of their own accord, are not appearing before the Court. When further questions were put to the President regarding his conduct and the conduct of the lawyers on strike, he submitted that he is willing to go to jail., The views expressed by the President, Kanpur Bar Association, have been duly endorsed and supported by the other office bearers present in the Court, namely Sri Anup Kumar Shukla and Sri Ajay Pratap Singh Chauhan, who submitted that the strike has been called by the General Body and any decision can only be taken by the General Body, but they are also willing to go to jail., The Chairman, Bar Council of Uttar Pradesh, present in the Court, categorically stated that he does not support the call of strike by the Kanpur Bar Association and that appropriate disciplinary proceedings would be initiated against those who are actively involved in the strike. He submitted that some time be given to him to call a meeting and to inform this Court about the decision taken by the Bar Council of Uttar Pradesh., Sri Ankaj Mishra, another member of the Bar Council of Uttar Pradesh, present in the Court, also supports the view expressed by the Chairman of the Bar Council of Uttar Pradesh., While placing reliance upon the judgment of the Supreme Court in Ex. Capt. Harish Uppal versus Union of India and another, AIR 2003 SC 739, and also the judgment of the Gujarat High Court in the case of Yatin Narendra Oza versus High Court of Gujarat, AIR 2021 SC 5578, the learned Advocate General submits that strike is not permissible in any manner and he is strongly against the said strike., After hearing the aforesaid noticees as well as the other office bearers of the Kanpur Bar Association and the Lawyers' Association, it appears that though the notices were served upon the noticees on 06.04.2023 by 1:00 p.m. in pursuance of the orders passed by this Court on 06.04.2023, no general body meeting has been called by the office bearers of both the Associations at Kanpur Nagar till they appeared in the Court today and the directions issued by this Court yesterday to resume the judicial work forthwith and to purge the contempt have been flouted., Further, upon the direction issued by this Court on 06.04.2023 that all the lawyers of the District Court, Kanpur Nagar would resume their judicial work forthwith, a handwritten notice dated 06.04.2023 under the signatures of the General Secretary, Kanpur Bar Association and the Lawyers' Association, Kanpur Nagar, has been affixed on the notice board wherein the resolution dated 25.03.2023 of the Kanpur Bar Association and the Lawyers' Association, Kanpur Nagar, to continue with strike and abstain from the judicial work has been reiterated. In addition to this, a warning has also been given to the advocates in the aforesaid notice that they would not perform any judicial work, administrative work or registration of cases and, in case any lawyer is found to be working against the decision of the General Body, his membership from the Kanpur Bar Association and the Lawyers' Association, Kanpur Nagar would be terminated and a recovery of Rupees 5,000 as penalty would be made from such lawyers. A note has also been added in the said notice that the lawyers are requested to remain present at the dharna sthal on 07.04.2023 at 10:00 a.m. to give force and support to the strike. At the end of the notice, it is stated that the cooperation of all the lawyers is needed., The video recording of the strike, as made available by the District Judge, shows that the agitating lawyers indulged in slogan shouting, using abusive and derogatory language against the entire district judiciary, including the District Judge., In view of the above, we find that the aforesaid noticees and the other office bearers present in the Court today, prima facie, are in deliberate and willful contempt of the Allahabad High Court by interfering in the administration of justice, calling an illegal strike since 16.03.2023 and thereby paralysing the judicial work in the District Court, Kanpur Nagar, and they have made themselves liable to face contempt proceedings., The following charges are framed against the aforesaid noticees as well as other office bearers present in the Court today: You, Sri Naresh Chandra Tripathi, President, Kanpur Bar Association; Sri Anurag Srivastava, General Secretary, Kanpur Bar Association; Sri Sharad Kumar Shukla, General Secretary, the Lawyers' Association, Kanpur Nagar; Sri Sarvesh Yadav, Vice President, the Lawyers' Association, Kanpur Nagar (in the capacity of President, the Lawyers' Association, Kanpur Nagar); and other office bearers present in the Court, namely Sri Anoop Kumar Shukla, Vice President, Kanpur Bar Association and Sri Ajay Pratap Singh Chauhan, Secretary, Kanpur Bar Association, by your conduct have wilfully and deliberately committed contempt of the Allahabad High Court by interfering in the administration of justice, calling an illegal strike since 16.03.2023 and thereby paralysing the judicial work at the District Court, Kanpur Nagar. You, by your conduct and statements, have wilfully and deliberately committed contempt of the order dated 06.04.2023 of this Court by restraining the lawyers from performing the judicial work in the District Court, Kanpur Nagar, affixing a handwritten notice dated 06.04.2023 reiterating the resolution dated 25.03.2023 for an indefinite strike, and threatening the lawyers with adverse consequences in case any one of them attends the court proceedings. You, by using abusive unparliamentary language and outrageous behaviour during the strike period in the District Court, Kanpur Nagar, scandalised and lowered the authority of the Court and undermined the sanctity of the Institution and the dignity of the entire district judiciary, have committed contempt of the Allahabad High Court., The Office is directed to register the proceedings of contempt as a separate case and obtain orders from the Honourable Chief Justice on the administrative side for its listing before the appropriate Bench. The aforesaid noticees and the other office bearers are to file their reply or defence.
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Plaintiffs, through Mr. Sidharth Chopra, Mr. Yatinder Garg, Ms. Snehima Jauhari and Ms. Ambika Dilwali, Advocates, versus Defendants, none. Interim Application No. 16479/2022 (Exemption) is allowed, subject to all just exceptions., This application is filed on behalf of the Plaintiffs seeking leave to file additional documents that are not presently in their power, possession, control or custody. The Plaintiffs may file the additional documents strictly in accordance with the provisions of law. By way of this application under Section 80 read with Section 151 of the Code of Civil Procedure, 1908, the Plaintiffs seek exemption from serving notice on Defendant Nos. 14, 17, 22 and 23. Having perused the contents of the application, the same is allowed. The plaint is to be registered as a suit., Summons shall be issued to the defendants to be served through all permitted modes, including electronically, returnable on 15 December 2022 before the learned Joint Registrar (Judicial). The summons shall indicate that the written statements shall be filed within thirty days from receipt of summons, together with affidavits of admission or denial of the Plaintiffs’ documents; without such affidavits the written statements shall not be taken on record. The Plaintiffs are given liberty to file replications within fifteen days of receipt of the written statements, together with affidavits of admission or denial of the defendants’ documents; without such affidavits the replications shall not be taken on record. If any party wishes to seek inspection of documents, the request shall be made within the prescribed timelines. Notice shall be served on the defendants through all permissible modes, including electronically, returnable on 15 December 2022 before the learned Joint Registrar (Judicial). Replies to the application shall be filed by the defendants within four weeks of receipt of the notice, and any rejoinder within two weeks thereafter., The Plaintiff No. 1 is a leading broadcaster in India and the exclusive licensee of media rights to various sporting events. It owns sixty‑five television channels in eight languages, including general entertainment and sporting channels, and holds broadcast rights to domestic and international cricket matches organized, inter alia, by the Board of Control for Cricket in India and the International Cricket Council. Plaintiff No. 2 owns and operates the online audio‑visual streaming platform and website, and the mobile application ‘Disney+ Hotstar’, where all events for which the rights are enjoyed by Plaintiff No. 1 are also streamed. Plaintiff No. 2 is an affiliate company of Plaintiff No. 1., The Plaintiffs own the exclusive license of the media rights of the International Cricket Council Men's T20 World Cup 2022 cricket tournament, which commences on 16 October 2022 and concludes on 13 November 2022., The present suit is filed by the Plaintiffs against the following Defendants: (a) Defendant Nos. 1 to 8 are alleged rogue websites; (b) Defendant Nos. 9 to 12 are the domain name registrars of the domain names used by the rogue websites; (c) Defendant Nos. 13 to 21 are Internet Service Providers; (d) Defendant Nos. 22 and 23 are the Department of Telecommunications and the Ministry of Electronics and Information Technology; (e) Defendant No. 24 is impleaded as John Doe in the name of Ashok Kumar., The Plaintiffs assert a serious apprehension that, owing to the past conduct of these rogue websites, they are likely to illegally stream and telecast the ICC Men's T20 World Cup 2022 scheduled from 16 October 2022 onwards. This apprehension is based on the fact that the defendant websites are already hosting, streaming or providing access to infringing and illegal content, inter alia, the live broadcast of the Australia tour of India in 2022 and the South Africa tour of India in 2022, for which the Plaintiffs have exclusive rights., Having considered the plaint and accompanying documents, and having heard counsel for the Plaintiffs, the Hon'ble High Court is of the opinion that the Plaintiffs have made out a prima facie case for the grant of an ex‑parte ad‑interim injunction, which is also a dynamic injunction. The balance of convenience lies in favour of the Plaintiffs. Irreparable injury would be caused to the Plaintiffs if the interim injunction is not granted. Disclosure orders are also to be passed against the domain name registrars, and the Ministry of Electronics and Information Technology and the Department of Telecommunications ought to issue blocking orders to all Internet Service Providers to block the rogue websites. Considering the investment made by the Plaintiffs in acquiring the rights to these events, any illegal broadcasting would severely affect their monetary interest and diminish the value of the rights., Accordingly, till further orders, Defendant Nos. 1 to 8 and all persons acting for or on their behalf shall be restrained from hosting, streaming, broadcasting, rebroadcasting, retransmitting or otherwise communicating to the public any cricketing events, extracts, excerpts or highlights relating to the ICC Men's T20 World Cup 2022 from 16 October 2022 to 13 November 2022., The domain name registrars shall immediately block the said domain names and maintain the status quo. They shall also disclose to the Plaintiffs the following: (a) complete details (name, address, email address, phone number, IP address, etc.) of Defendant Nos. 1 to 8 and any other websites discovered during the proceedings and identified in an affidavit as infringing the Plaintiffs’ exclusive rights, copyrights and broadcast reproduction rights; (b) mode of payment and payment details used for registration of the domain names by the registrants; (c) details of other websites registered by Defendant Nos. 1 to 8 and discovered during the proceedings that used similar credit cards or payment gateways, as disclosed in (b), with Defendant Nos. 9 to 12; (d) details of complaints received by Defendant Nos. 9 to 12 in the past against Defendant Nos. 1 to 8 and other infringing websites., The Department of Telecommunications, the Ministry of Electronics and Information Technology and the Internet Service Providers shall block the Defendant Nos. 1 to 8 websites. The blocking orders shall be issued by the Department of Telecommunications within twenty‑four hours after service of this order. Pursuant to the blocking orders, all Internet Service Providers, i.e., Defendant Nos. 13 to 21, shall block access to the URLs and mobile applications within twenty‑four hours and shall not permit download of these applications or streaming of the rogue websites., If the Plaintiffs discover other mirror or rogue websites broadcasting or telecasting the ICC Men's T20 World Cup unauthorisedly, they may file an affidavit in this regard before the Hon'ble High Court along with supporting evidence. Upon filing such affidavit, the websites shall be blocked with immediate effect upon notice to the Department of Telecommunications and the Internet Service Providers. The Department of Telecommunications shall issue blocking orders for such further rogue websites immediately and, in any case, within twenty‑four hours, so that the websites do not continue to stream infringing content., Compliance with Order XXXIX, Rule 3 of the Code of Civil Procedure, 1908 shall be made within two days.
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The 22nd Law Commission of India was constituted by Gazette Notification for a period of three years vide Order No. FNo. 45021/1/2018-Admin-III (Legal Affairs) dated 21 February 2020 issued by the Government of India, Ministry of Law and Justice, Department of Legal Affairs, New Delhi. The term of the 22nd Law Commission was extended vide Order No. FA No. 60011/225/2022-Admin-III (Legal Affairs) dated 22 February 2023. The Law Commission consists of a Chairperson, three full‑time Members, a Member Secretary, two ex‑officio Members and two part‑time Members. The Chairperson is Honourable Justice Ritu Raj Awasthi. The full‑time Members are Honourable Justice K. T. Sankaran, Professor (Doctor) Anand Paliwal and Professor D. P. Verma. The ex‑officio Members are Dr. Niten Chandra, Secretary, Department of Legal Affairs and Dr. Reeta Vasishta, Secretary, Legislative Department. The part‑time Members are Shri M. Karunanithi, Professor (Doctor) Raka Arya, and the Law Officers Shrimati Varsha Chandr, Shri Atul Kumar Gupta (Joint Secretary and Law Officer) and Deputy Law Officer. The Law Commission is located at 2nd and 41st Floor, ‘B’ Wing, Lok Nayak Bhawan, Khan Market, New Delhi‑110003., I am pleased to forward Report No. 279 of the Law Commission of India on “Usage of the Law of Sedition”. The Law Commission received a reference from the Ministry of Home Affairs, Government of India, vide letter dated 29 March 2016, addressed to the Department of Legal Affairs, Ministry of Law and Justice, for a study of the usage of the provision of Section 124A of the Indian Penal Code, 1860 and to suggest amendments, if any. The constitutionality of Section 124A of the Indian Penal Code was challenged before the Supreme Court of India in S. G. Vombatkere v. Union of India [(2022) 7 Supreme Court Reports 433]. The Union of India assured the Supreme Court of India that it was re‑examining Section 124A and the Court may not invest its valuable time in doing the same. Pursuant to the same and vide order passed on 11 May 2022, the Supreme Court of India directed the Central Government and all the State Governments to refrain from registering any FIR or taking any coercive measures while suspending all continuing investigations in relation to Section 124A. It also directed that all pending trials, appeals and proceedings be kept in abeyance., The 22nd Law Commission, after the appointment of the Chairperson and other Members vide notification dated 7 November 2022, immediately took up this reference and is submitting this final Report for your kind consideration. We undertook a comprehensive study of the law relating to sedition and its usage in India, tracing its genesis and development. The Commission also analysed the history of sedition, both in colonial and independent India, the law on sedition in various jurisdictions, and the various pronouncements of the Supreme Court of India and the High Courts on the subject‑matter. Consequently, the Law Commission is of the considered view that Section 124A needs to be retained in the Indian Penal Code, though certain amendments, as suggested, may be introduced in it by incorporating the ratio decidendi of Kedar Nath Singh v. State of Bihar [AIR 1962 Supreme Court 955] so as to bring about greater clarity regarding the usage of the provision. We further recommend that the scheme of punishment provided under the said section be amended to ensure that it is brought in parity with the other offences under Chapter VI of the Indian Penal Code. Moreover, cognizant of the views regarding the misuse of Section 124A, the Commission recommends that model guidelines curbing the same be issued by the Central Government. In this context, it is also alternatively suggested that a provision analogous to Section 196(3) of the Code of Criminal Procedure, 1973 (Criminal Procedure Code) may be incorporated as a proviso to Section 154 of the Criminal Procedure Code, which would provide the requisite procedural safeguard before filing of an FIR with respect to an offence under Section 124A of the Indian Penal Code., The Law Commission of India can be contacted at Room No. 405, 4th Floor, ‘B’ Wing, Lok Nayak Bhawan, Khan Market, New Delhi‑110003. Email: rituraj.awasthi@gov.in. Telephone: 011‑24654951 (office), 011‑240202, 011‑240203., Upon receiving the terms of reference for the subject‑matter of this Report, the Law Commission held extensive deliberations with all the relevant stakeholders, scholars, academicians and intellectuals. Pursuant to the preliminary research conducted on this subject, the Law Commission floated a Consultation Paper on “Sedition” on its website, inviting views and suggestions from the concerned intelligentsia and the public in general. The Commission is grateful to all the persons who took out their valuable time to furnish their comments and submissions on the law relating to sedition. Having taken into consideration the suggestions so furnished, the Commission held further consultations with professors and academic experts to unravel the intricacies of the subject‑matter. In particular, the Commission expresses its heartfelt thanks to Professor (Doctor) Anurag Deep, Indian Law Institute, New Delhi, for holding in‑depth discussions with us on the subject at hand. The Commission also acknowledges the commendable assistance rendered in the preparation of this Report by Mr. Rishi Mishra, Mr. Gaurav Yadav and Mr. Shubhang Chaturvedi, who worked as consultants., The Report is organised as follows: A. Terms of Reference; B. Genesis and Development of the Concept of Sedition; C. Origin and Development of the Law of Sedition in India; D. Judicial Decisions on Sedition; E. Comparative Jurisdictions; F. Recommendations., The origin of the law on sedition can be traced back to English law. In feudal England, ‘sedition’ comprised libels and slanders that would alienate the rulers from their subjects. Traditionally, the legal elements of ‘sedition’ were obscure and failed to provide a precise definition. Offences that would now be classified as ‘sedition’ were prosecuted under ‘treason’, ‘scandalum magnatum’ or even under martial law. At the end of the sixteenth century, a newer connotation for the term ‘sedition’ began to emerge – the notion of inciting by words or writings, disaffection towards the state or its constituted authority. This secondary definition gave rise to an understanding of ‘sedition’ as being distinct from treason and not necessarily entailing direct involvement in violent actions, but rather serving as potential triggers for such acts., The law of sedition has a chequered history in India. Macaulay’s Draft Penal Code (1837‑1839) provided for a clause that incorporated the offence of sedition as follows: ‘Section 13: Whoever by words either spoken or intended to be read, or by signs or visible representations, attempts to excite feelings of disaffection to the Government established by law in the territories of the East India Company, shall be punished with banishment for life or for any term, or with simple imprisonment for a term which may extend to three years, to which fine may be added.’ Ten years after the first draft, the Second Report on the Indian Penal Code was presented by the Law Commission in 1846. Although there was opposition to the provision, the majority in the Law Commission did not accept the objections. When the Macaulay draft received its final shape in the form of the Indian Penal Code of 1860, the sedition provision was omitted. The omission was later rectified, and sedition was included as an offence under Section 124A of the Indian Penal Code through the Special Act XVII of 1870, in line with the Treason Felony Act, 1848. The section was amended in 1898 by the Indian Penal Code (Amendment) Act, 1898, providing for punishment of transportation for life or any shorter term. The provision was further amended by Act No. 26 of 1955, substituting the punishment with imprisonment for life and/or fine or imprisonment for three years and/or fine., The Law Commission has previously dealt with the issue of sedition. In its 39th Report (1968) titled ‘The Punishment of Imprisonment for Life under the Indian Penal Code’, the Commission recommended that offences like sedition should be punishable either with imprisonment for life or with rigorous or simple imprisonment which may extend to three years, but not more. The Commission observed that the section was defective because the “pernicious tendency or intention” underlying the seditious utterance had not been expressly related to the interests of integrity or security of India or public order. It suggested that the mens rea be expressed as ‘intending or knowing it to be likely to endanger the integrity or security of India or any State or to cause public disorder’. The Commission also noted that the definition did not take into account disaffection towards the Constitution, the Legislature and the administration of justice. In its 42nd Report (1971) titled ‘Indian Penal Code’, the Commission recommended that the maximum punishment for sedition be fixed at seven years’ rigorous imprisonment and fine, and proposed the following amendment: ‘Section 124A. Sedition – Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, excites, or attempts to excite, disaffection towards the Constitution, or the Government or Parliament of India, or the Government or Legislature of any State, or the administration of justice, as by law established, intending or knowing it to be likely thereby to endanger the integrity or security of India or any State, or to cause public disorder, shall be punished with rigorous imprisonment for a term which may extend to seven years and shall also be liable to fine.’ The 43rd Report (1971) on ‘Offences Against the National Security’ reiterated this revision. The 267th Report (2017) on ‘Hate Speech’ distinguished between sedition and hate speech, stating that to qualify as sedition, the impugned expression must threaten the sovereignty and integrity of India and the security of the State., The framers of the Constitution recognised that fundamental rights could be subject to reasonable restrictions. Shri A. K. Ayyar and Shri K. M. Munshi were strong advocates of limiting fundamental rights in the interest of public order, security and safety. During the Constituent Assembly debates, it was noted that the right to freedom of speech and expression under Article 19(1)(a) of the Constitution could be restricted by law for the publication or utterance of seditious, obscene, blasphemous, slanderous, libellous or defamatory matter. This proviso corresponded to Article 13(2) of the Draft Constitution presented on 21 February 1948, which allowed the State to make any law relating to sedition. The Interim Report of the Advisory Committee on Fundamental Rights, presented on 24 January 1947, and the subsequent discussions highlighted that sedition was to be treated as a restriction on the freedom of speech and expression.
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The difference between the position under the American Constitution and the Draft Constitution is one of form and not of substance. That the fundamental rights in America are not absolute rights is beyond dispute. In support of every exception to the fundamental rights set out in the Draft Constitution one can refer to at least one judgment of the United States Supreme Court. It would be sufficient to quote one such judgment of the Supreme Court in justification of the limitation on the right of free speech contained in Article 13 of the Draft Constitution. In Gitlow v. New York, in which the issue was the constitutionality of a New York 'criminal anarchy' law which purported to punish utterances calculated to bring about violent change, the United States Supreme Court said: \It is a fundamental principle, long established, that the freedom of speech and of the press, which the Constitution secures, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom.\ It is therefore wrong to say that the fundamental rights in America are absolute, while those in the Draft Constitution are not., In America, the fundamental rights as enacted by the Constitution were no doubt absolute. Congress, however, soon found that it was essential to qualify these fundamental rights by limitations. When the question arose as to the constitutionality of these limitations before the United States Supreme Court, it was contended that the Constitution gave no power to the United States Congress to impose such limitation. The Supreme Court invented the doctrine of police power and refuted the advocates of absolute fundamental rights by the argument that every state has inherent police power which is not required to be conferred on it expressly by the Constitution. To use the language of the Supreme Court in the case referred to, it said: \That a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime or disturb the public peace, is not open to question.\, What the Draft Constitution has done is that instead of formulating fundamental rights in absolute terms and depending upon the Supreme Court of India to come to the rescue of Parliament by inventing the doctrine of police power, it permits the State directly to impose limitations upon the fundamental rights. There is really no difference in the result. What one does directly the other does indirectly. In both cases, the fundamental rights are not absolute., In the second reading of the Draft Constitution, the Constituent Assembly on 1 December 1948 again debated draft Article 13. Shri Damodar Swarup Seth, criticizing the draft article as clumsily drafted, said: \Sir, this article 13 guarantees freedom of speech and expression, freedom to assemble peaceably and without arms, to form associations and unions, to move freely throughout the territory of India, to sojourn and settle in any territory, to acquire and hold and dispose of property, and to practice any profession, trade or business. While the article guarantees all these freedoms, the guarantee is not to affect the operation of any existing law or prevent the State from making any law in the general interests of the public. Indeed, the guarantee of freedom of speech and expression which has been given in this article is actually not to affect the operation of any existing law or prevent the State from making any law relating to libel, slander, defamation, sedition and other matters which offend the decency or morality of the State or undermine the authority or foundation of the State. It is therefore clear that the rights guaranteed in article 13 are cancelled by that very section and placed at the mercy of the legislature. These guarantees are also cancelled when it is stated that, to safeguard against offences relating to decency and morality and the undermining of the authority or foundation of the State, the existing law shall operate. So, while certain kinds of freedom have been allowed on the one hand, on the other hand they have been taken away by the same article. To safeguard against 'undermining the authority or foundation of the State' is a tall order and makes the fundamental right with regard to freedom of speech and expression virtually ineffectual.\, Shri S. K. Vaze of the Servants of India Society, while criticizing this article, pointed out that if the malafides of the Government are not proved and they certainly cannot be proved, then the Supreme Court will have no alternative but to uphold the restrictive legislation. The Draft Constitution further empowers the President of India to issue proclamations of emergency whenever he thinks that the security of India is in danger or is threatened by an apprehension of war or domestic violence. The President under such circumstances has the power to suspend civil liberty. To suspend civil liberties is tantamount to a declaration of martial law. Even in the United States, civil liberties are never suspended; what is suspended there, in cases of invasion or rebellion, is only the writ of habeas corpus., Although individual freedom is secured in this article, it is at the same time restricted by the will of the legislature and the executive which have powers to issue ordinances between the sessions of the legislature almost freely, unrestricted by any constitutional provision. Fundamental rights, therefore, ought to be placed absolutely outside the jurisdiction not only of the legislature but also of the executive. The Honourable Doctor B. R. Ambedkar, while justifying the limitations on civil liberties, maintained that what the Drafting Committee has done is that, instead of formulating civil liberties in absolute terms and depending on the aid of the Supreme Court of India to invent the doctrine of police powers, they have permitted the State to limit civil liberties directly., If we carefully study the law of police powers in the United States, it will be clearly seen that the limitations embodied in the Draft Constitution are far wider than those provided in the United States. Under the Draft Constitution the Law of Sedition, the Official Secrets Act and many other repressive laws will remain intact just as they are. If full civil liberties subject to police powers are to be allowed to the people of this country, all repressive laws including the Law of Sedition will have either to go or to be altered radically and part of the Official Secrets Act will also have to go. I therefore submit that this article should be radically altered and substituted by the addenda I have suggested., Shri Mahboob Ali Baig Sahib Bahadur moved the amendment for the deletion of Clauses (2) to (6) from draft Article 13 and to add a single proviso to Clause (1), which read, \provided, however, that no citizen in the exercise of the said right shall endanger the security of the State, promote ill‑will between the communities or do anything to disturb peace and tranquillity in the country.\ While introducing this amendment, he said: \Mr. Vice‑President, Sir, to me it looks as if the fundamental rights are listed in clause (1) only to be deprived of under clauses (2) to (6), for in the first place these fundamental rights are subject to the existing laws. If in the past the laws in force, the law‑less laws as I would call them, the repressive laws, which were enacted for depriving the citizens of their human rights, have deprived the citizens of these rights under the provisions of clauses (2) to (6), they will continue to do so. The laws that I might refer to as such are the Criminal Law Amendment Acts, the Press Acts and the several Security Acts that have been enacted in the Provinces. These clauses further say that if the existing laws are not rigorous, repressive and wide enough to annihilate these rights, the States as defined in Article 7, which covers legislatures, executive governments and also local bodies, may complete the havoc. Fundamental rights are fundamental, permanent, sacred and ought to be guaranteed against coercive powers of a State by excluding the jurisdiction of the executive and the legislature. If the jurisdiction of the executive and the legislature is not excluded, these fundamental rights will be reduced to ordinary rights and cease to be fundamental.\, Shri K. M. Munshi proposed an amendment to Clause (2) of draft Article 13. The amendment read: \(2) Nothing in sub‑clause (a) of clause (1) of this article shall affect the operation of any existing law, or prevent the State from making any law relating to libel, slander, defamation, or any matter which offends decency or morality or which undermines the security of, or tends to overthrow, the State.\ Through this amendment, Shri Munshi sought to omit the word 'sedition' and substitute it with 'which undermines the security of, or tends to overthrow, the State'. He stated that the object of the amendment was to remove the word 'sedition', which was of doubtful and varying import, and to introduce words which constituted the crux of an offence against the State., Shri Munshi observed: \The importance of this amendment is that it seeks to delete the word sedition and uses a much better phraseology, viz. 'which undermines the security of, or tends to overthrow, the State.' The object is to remove the word sedition which is of doubtful and varying import and to introduce words which are now considered to be the gist of an offence against the State. Sedition embraces all those practices whether by word or deed or writing which are calculated to disturb the tranquility of the State and lead ignorant persons to subvert the Government. A hundred and fifty years ago in England, holding a meeting or conducting a procession was considered sedition. Even holding an opinion which would bring ill‑will towards the Government was considered sedition. Our notorious Section 124A of the Indian Penal Code was sometimes construed so widely that criticism of a District Magistrate was urged to be covered by Section 124A. But public opinion has changed considerably since, and now that we have a democratic Government a line must be drawn between criticism of Government which should be welcome and incitement which would undermine the security or order on which civilized life is based, or which is calculated to overthrow the State.\, The Federal Court of India, in Niharendu Dutt Majumdar v. King, in I and IV Federal Court Reports, made a distinction between what sedition meant when the Indian Penal Code was enacted and sedition as understood in 1942. A passage from the judgment of the Chief Justice of India says: \This (sedition) is not made an offence in order to minister to the wounded vanity of Governments but because where Government and the law cease to be obeyed because no respect is felt any longer for them, only anarchy can follow. Public disorder, or the reasonable anticipation or likelihood of public disorder, is thus the gist of the offence. The acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency.\, Thus, a nuanced reading of the debates shows that the rationale for the deletion of the word 'sedition' from Clause (2) of draft Article 13 was that the founding fathers sought to employ words which, in their understanding, properly incorporated the meaning of the offence of sedition in accordance with its correct interpretation rendered by the Federal Court in the case of Niharendu Dutt Majumdar v. King. The mere deletion of the word 'sedition' brought no concrete change in the reasonable restrictions sought to be imposed on freedom of speech and expression. The term 'sedition' was omitted from Article 19(2) because the framers of the Constitution had included terms with wider connotations, which very much included the offence of sedition along with other subversive activities detrimental to the security of the State. On 2 December 1948, Shri Munshi's amendment was adopted by the Constituent Assembly. This draft Article 13 ultimately materialised into Article 19 of the Constitution., Judicial decisions on sedition prior to independence: Section 124A of the Indian Penal Code was extensively employed by the British to suppress the Indian nationalist movement. In Jogendra Chunder Bose v. Queen‑Empress, the accused was charged with sedition for criticizing the Age of Consent Bill and the negative economic impact of British colonialism. The Court distinguished sedition as understood under English law from Section 124A of the IPC, observing that the offence under Section 124A was milder; in England any overt act consequent to a seditious feeling was penalised, whereas in India only acts done with an intention to resist by force or to excite resistance by force fell under the section. The Court defined 'disaffection' as a feeling contrary to affection, such as dislike or hatred, and distinguished it from 'disapprobation' which is merely disapproval., In Queen‑Empress v. Bal Gangadhar Tilak, the defendant was accused of sedition for publishing an article in the newspaper Kesari invoking the example of Chhatrapati Shivaji to incite overthrow of British rule. Justice Strachey explained that 'disaffection' means hatred, enmity, dislike, hostility, contempt and every form of ill‑will to the Government. The Court held that the amount or intensity of the disaffection is immaterial; any attempt to excite feelings of disaffection, great or small, is guilty under the section, regardless of whether actual disaffection was excited., Subsequent decisions such as Queen‑Empress v. Ramchandra Narayan and Queen‑Empress v. Amba Prasad clarified that an attempt to excite feelings of disaffection towards the Government is equivalent to an attempt to produce hatred towards the Government, but that mere disapprobation does not amount to disaffection provided the accused remains loyal at heart and is ready to obey and support the Government., These cases highlighted ambiguity in interpreting Section 124A. To remove further misconception, the legislature introduced Explanation III to the section, which excluded 'comments expressing disapprobation' of Government action that did not intend to lead to an offence. The Select Committee explained that this addition was intended to protect fair and honest criticism aimed at altering Government policy., During the British period, the government was reluctant to grant freedom of expression to Indians to the extent enjoyed in England. The British found it difficult to limit the scope of sedition to direct incitement to violence because the country was under foreign rule with diverse customs and creeds., In Kamal Krishna Sircar v. Emperor, the Court refused to term a speech condemning Government legislation declaring the Communist Party of India and various trade unions illegal as seditious, observing that suggesting an alternative form of government does not necessarily bring the present Government into hatred or contempt., After independence, although observations were made by the Supreme Court of India in Romesh Thapar v. State of Madras and Brij Bhushan v. State of Delhi, the question of constitutionality of Section 124A did not directly arise before the Supreme Court of India until 1962. In Romesh Thapar, the majority held that unless a law restricting freedom of speech and expression is directed solely against undermining the security of the State or overthrowing it, such a law cannot fall within the reservations under Article 19(2)., In Brij Bhushan, the majority relied on Romesh Thapar and struck down Section 9(1‑A) of the Madras Maintenance of the Public Order Act, holding that the provisions were in excess of the powers conferred on the legislature by Clause (2) of Article 19 of the Constitution. Justice Fazl Ali, in dissent, examined the nature and scope of the law of sedition and explained the rationale for not including the term 'sedition' in Article 19(2), noting that sedition is essentially an offence against public tranquillity and that the framers preferred to use broader terms to cover sedition and other matters detrimental to the security of the State., The Punjab High Court in Tara Singh Gopi Chand v. State, relying on Romesh Thapar, declared Section 124A unconstitutional, reasoning that it contravenes the right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution., The Constitution (First Amendment) Act, 1951 amended Clause (2) of Article 19 and inserted two additional restrictions—'friendly relations with foreign States' and 'public order'—to address difficulties highlighted by judicial decisions concerning fundamental rights.
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The citizen's right to freedom of speech and expression guaranteed by Article 19(1)(a) has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence. Thus, Parliament took note of the reasoning of the majority opinion in Romesh Thapar, which had held that freedom of speech and expression could be restricted on the grounds of threat to national security and for 'serious aggravated forms of public disorder that endanger national security' and not 'relatively minor breaches of peace of a purely local significance'. The Amendment echoed the statement of law as laid down in the dissenting opinion of Justice Fazl Ali in Brij Bhushan., Subsequent to the enactment of the Constitution (First Amendment) Act, 1951, the Patna High Court in Devi Soren v. State of Bihar dealt with the validity of Section 124A of the Indian Penal Code. While upholding its validity, the High Court held that the scope of Article 19(2) has now been widened after the addition of 'in the interest of public order' as a reasonable restriction on freedom of speech and expression. The Court, while distinguishing the terms 'public order' and 'in the interest of public order', held that while the term 'public order' simpliciter might need evidence of incitement of violence or tendency of violence, the expression 'in the interest of public order' is wide enough to cover mere bad feelings without any proof of tendency to violence or disorder., The Constitution bench of the Supreme Court of India in Ramji Lal Modi v. State of Uttar Pradesh dealt with the scope of the words 'in the interests of public order' in Article 19(2). It was argued that Section 295A of the Indian Penal Code covers both varieties of insults, i.e., those which may lead to public disorder as well as those which may not. The Court, while declining to accept the argument, held that the phrase 'in the interests of public order' has a much wider connotation than 'for maintenance of public order'. The Court held that if 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 a reasonable restriction 'in the interests of public order', although in some cases those activities may not actually lead to a breach of public order. The Court further held that Section 295A punishes only the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. The calculated tendency of this aggravated form of insult is clearly to disrupt public order and the section, which penalises such activities, is well within the protection of Clause (2) of Article 19. Thus, the Court introduced two tests: 'aggravated form', which defines the criteria for what counts as an insult, and the 'calculated tendency' of the insult to disrupt public order., The full bench of the Allahabad High Court in Ram Nandan v. State dealt with the constitutionality of Section 124A. While declaring Section 124A unconstitutional, the Court held that Section 124A deals not just with the aggravated form of disaffection, but even with the mildest variety of hatred, contempt or disaffection. There could be instances where speech would contain the germs of an incitement to violence, and instances where it would not. Thus, even the mildest form of disaffection could be caught by Section 124A, which would go against the scheme of Article 19(1)(a) of the Constitution., In 1960, the Constitution bench of the Supreme Court of India in Supreme Court v. Dr Ram Manohar Lohia had the occasion to interpret the words 'in the interest of public order' in Article 19(2) of the Constitution. After considering different judicial opinions, the Court summarised the phrase in the following words: (1) 'Public order' is synonymous with public safety and tranquillity: it is the absence of disorder involving breaches of local significance in contradistinction to national upheavals such as revolution, civil strife, war, affecting the security of the State; (2) there must be a proximate and reasonable nexus between the speech and the public order; (3) Section 295A, as it now stands, does not establish in most of the cases comprehended by it any such nexus; (4) there is a conflict of decision on the question of severability in the context of an offending provision whose language is wide enough to cover restrictions both within and without the limits of constitutionally permissible legislation; one view is that it cannot be split up if there is possibility of its being applied for purposes not sanctioned by the Constitution and the other view is that such a provision is valid if it is severable in its application to an object which is clearly demarcated from other objects falling outside the limits of constitutionally permissible legislation; and (5) the provisions of the section are so inextricably mixed up that it is not possible to apply the doctrine of severability so as to enable us to affirm the validity of a part of it and reject the rest., The challenge to the constitutionality of Section 124A came directly before the Supreme Court of India for the first time in Kedar Nath Singh v. State of Bihar. The Constitution bench upheld the validity of Section 124A. The Court, after taking a detailed account of the history of Section 124A, explicitly recognised that the State needs protection from forces who seek to jeopardise the safety and stability of the State. The Court observed: 'This offence, which is generally known as the offence of sedition, occurs in Chapter VI of the Indian Penal Code, headed \Offences against the State\. This species of offence against the State was not an invention of the British Government in India, but has been known in England for centuries. Every State, whatever its form of government, has to be armed with the power to punish those who, by their conduct, jeopardise the safety and stability of the State, or disseminate such feelings of disloyalty as have the tendency to lead to the disruption of the State or to public disorder.' While distinguishing the phrase 'the Government established by law' from the persons for the time being engaged in carrying on the administration, the Court observed that 'Government established by law' is the visible symbol of the State. The very existence of the State will be in jeopardy if the Government established by law is subverted. Hence, the continued existence of the Government established by law is an essential condition of the stability of the State. That is why 'sedition', as the offence in Section 124A, has been characterised under Chapter VI relating to offences against the State. Any act within the meaning of Section 124A which has the effect of subverting the Government by bringing that Government into contempt or hatred, or creating disaffection against it, would be within the penal statute because the feeling of disloyalty to the Government established by law or enmity to it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence. In other words, any written or spoken words which have implicit in them the idea of subverting Government by violent means, which are comprehensively included in the term 'revolution', have been made penal by the section. However, the section has taken care to indicate clearly that strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means would not come within the section. Similarly, comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal. In other words, disloyalty to the Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts., The Court, hence, struck a balance between the right to free speech and expression and the power of the legislature to restrict such right by observing: 'The security of the State, which depends upon the maintenance of law and order, is the very basic consideration upon which legislation, with a view to punishing offences against the State, is undertaken. Such legislation has, on the one hand, to fully protect and guarantee the freedom of speech and expression, which is the sine qua non of a democratic form of Government that our Constitution has established. But the freedom has to be guarded against becoming a licence for vilification and condemnation of the Government established by law, in words which incite violence or have the tendency to create public disorder. A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder.', The Supreme Court in Kedar Nath Singh took note of its earlier decision in Ramji Lal Modi to observe that the latter judgment throws a good deal of light upon the ambit of the power of the legislature to impose a reasonable restriction on the exercise of the fundamental right to freedom of speech and expression. The Supreme Court took note of the strict test of proximity as laid down in Ramji Lal Modi and reinterpreted in Ram Manohar Lohia. Thus, while laying down the test for sedition, the Court held that unless the words used or the actions in question threaten the security of the State or the public or lead to any sort of public disorder which is grave in nature, the act would not fall within the ambit of Section 124A of the Indian Penal Code., It is pertinent to note that, as per the Kedar Nath Singh judgment, proof of violence is not essential for establishing the offence of sedition. The Court approved the 'tendency test' of the United Kingdom rather than relying on the 'imminent danger test' of the United States. Throughout the judgment, focus is on the tendency or incitement to violence or disorder rather than actual violence or imminent threat of violence. The accused Kedar Nath Singh was convicted and punished for his speech without any proof of direct incitement of violence or any imminent danger of public disorder, demonstrating the Court's adoption of the 'tendency test' for interpreting Section 124A of the Indian Penal Code. This objective test of tendency entails examination of the alleged seditious material, the circumstances and the conduct of the accused. The test need not necessarily inquire into the consequences of the alleged seditious expression such as actual violence or real impact. If the speech or expression is deliberately made and the content is pernicious enough, there is no requirement of proof of any overt conduct to establish a tendency of violence., After the pronouncement in Kedar Nath Singh, courts have been categorical that every criticism of the government does not amount to sedition and that the real intent of the speech must be considered before imputing seditious intent. The Supreme Court, in Raghubir Singh v. State of Bihar, held that to constitute an offence of conspiracy and sedition, it is not necessary that the accused himself author the seditious material or actually attempt hatred, contempt or disaffection. In Balwant Singh v. State of Punjab, the Court held that mere casual raising of slogans a few times against the State without any overt act, which neither evoked any response nor any reaction from the public, does not attract the provisions of Section 124A. In S. Rangarajan v. P. Jagjivan Ram, the Court observed that there must be a balance between freedom of expression and reasonable restrictions, and that exceptions should be construed precisely, with the expression having a proximate and direct nexus with the situation and being intrinsically dangerous to public interest. In Bilal Ahmed Kaloo v. State of Andhra Pradesh, the Court quashed the charges under Section 124A as it was not established that the appellant had done anything which would threaten the existence of the Government established by law or might cause public disorder. In Nazir Khan v. State of Delhi, the Court reiterated that sedition is described as disloyalty in action and includes practices that aim to excite discontent, create public disturbance, or lead to civil war, or bring into hatred or contempt the Sovereign or the Government. In Common Cause v. Union of India, the Court directed that while dealing with Section 124A, authorities must be guided by the principles laid down in Kedar Nath Singh, requiring a certification that the seditious act either led to incitement of violence or had the tendency or intention to create public disorder. In Vinod Dua v. Union of India, the Court affirmed that a citizen has a right to criticize or comment upon the measures undertaken by the Government and its functionaries so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder, and that Sections 124A can be invoked only when the words or expressions have a pernicious tendency or intention of creating public disorder., In its order dated 11 May 2023, the Supreme Court of India in S.G. Vombatkere v. Union of India directed all State Governments and the Central Government to keep all pending trials, appeals and proceedings arising out of a charge framed under Section 124A in abeyance. The Court observed that the rigours of Section 124A of the Indian Penal Code were not in tune with the current social milieu and were intended for a time when the country was under colonial rule., Reasonable restrictions can always be imposed on the right to freedom of speech and expression in order to ensure its responsible exercise and to ensure that it is equally available to all citizens. According to Article 19(3) of the International Covenant on Civil and Political Rights, 1966 (ICCPR), this freedom may be subjected to restrictions, provided they are prescribed by law and are necessary for respecting the rights or reputation of others or for the protection of national security, public order, public health or morals. Similarly, Article 19(1)(a) of the Constitution of India guarantees freedom of speech and expression to all citizens, but Article 19(2) provides for certain restrictions, namely, in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence., Article 19 of the International Covenant on Civil and Political Rights reads: 'The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be those provided by law and necessary: (a) for respect of the rights or reputations of others; (b) for the protection of national security or of public order, or of public health or morals.', Free speech is a hallmark of democracy. The purpose of this freedom is to allow an individual to attain self‑fulfilment, assist in the discovery of truth, strengthen the capacity of a person to make decisions and facilitate a balance between stability and social change. The relevance of the offence of sedition provided under Section 124A of the Indian Penal Code is a subject of continuous debate. Those opposing it see the provision as a relic of India's colonial past, while others argue that, amidst growing concerns of national security, the provision provides a reasonable restriction on utterances that are inimical to the security and integrity of the nation. Balancing freedom of expression with collective national interest is a key ingredient of this law. Indeed, dissent with the sole objective to unseat a government strengthens the democratic fabric so long as it does not use mischievous propaganda of an extreme form or lead to a tendency of violence or disorder or support disintegration of the country., As long as the means adopted by protesting voices are constitutional and legal, criticism of the government would merely be disapprobation and not disaffection. However, when such disapprobation leads to incitement of violence or suggests incitement of violence as the only recourse, the offence of sedition becomes operative. It is noteworthy that even in the United States of America, which proscribes the State from enacting legislation curtailing the First Amendment right to free speech, the judiciary has invented the doctrine of police power to protect laws made by the Congress. Thus, even in a State that follows an 'absolutist' model of free speech, the right is not absolute., The Constitution framers, while deliberating over the model to adopt, ultimately rejected the 'absolutist' model and chose the 'expressly restrictive' model. Dr B. R. Ambedkar noted: 'What the Draft Constitution has done is that instead of formulating fundamental rights in absolute terms and depending upon our Supreme Court to rescue Parliament by inventing the doctrine of police power, it permits the State directly to impose limitations upon the fundamental rights. There is really no difference in the result; what one does directly, the other does indirectly. In both cases, the fundamental rights are not absolute.', The fundamental right to speech and expression in India is subject to the eight reasonable restrictions stipulated under Article 19(2), and it can also be suspended during an emergency under Article 358 of the Constitution of India. The intention of the Constituent Assembly and Parliament was not only to distinguish the Indian model from the US model but also to keep it sufficiently away because of strong disintegrating and separatist tendencies., Article 19(1)(a) in the original Constitution guaranteed the fundamental right to freedom of speech and expression subject to the qualifiers in Clause (2), i.e., the government's authority to legislate concerning libel, slander, defamation, contempt of court, any matter offending decency or morality, or which undermines the security of or tends to overthrow the State. Upset by a series of judgments rendered by the Supreme Court and certain High Courts, Pandit Jawaharlal Nehru wrote to Dr B. R. Ambedkar expressing the view that the Constitution's provisions pertaining to law and order and subversive activities needed to be amended. Consequently, Prime Minister Nehru introduced the draft of the First Amendment in the Lok Sabha on 12 May 1951. Regarding the inclusion of 'public order' and 'incitement to an offence' as grounds for restricting free speech, Nehru exclaimed that a Constitution should not limit the power of Parliament to face a situation. He further maintained that the concept of individual freedom has to be balanced with social freedom and the relations of the individual with the social group. After its passage, the First Amendment retrospectively and prospectively empowered the government to impose reasonable restrictions on freedom of expression 'in the interests of the security of the State' (replacing the words 'tends to overthrow the State'), friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation (replacing the words 'libel' and 'slander'), or incitement to an offence., The Sixteenth Constitutional Amendment, 1963, further strengthened the reasonable restrictions on free speech by adding the expression 'the sovereignty and integrity of India' to Article 19(2). The reasons included the Chinese incursions culminating in the Indo‑China War of 1962, the Sikh agitation for a separate state, and the Dravida Munnetra Kazhagam's call for a separate Dravidanad. Faced with the Sikh agitation and aware of the DMK's proclivities, the Chief Ministers' Conference in August 1961 unanimously recommended that advocacy of secession be made a penal offence. Accordingly, a National Integration Council was established, and its report recommended that any demand for secession from the Centre be made unconstitutional. The then Law Minister Ashoke Kumar Sen, while introducing the Sixteenth Amendment Bill in the Lok Sabha on 21 January 1963, said its purpose was to give appropriate powers to impose restrictions against individuals or organisations who seek secession from India or disintegration of India for political purposes. The amendment was passed unanimously and was hailed as a great achievement, especially as it led the DMK to unequivocally declare that it gave up the demand for Dravida Nadu and stood for the sovereignty and unity of India., Thus, the objective of imposing successive reasonable restrictions on freedom of speech and expression, as evident from the discussions in the Constituent Assembly and the debates preceding the First and Sixteenth Amendments, was primarily to safeguard the sovereignty, territorial integrity and security of India as well as the interest of public order. It is crucial to understand the true import of the offence of sedition in India in this context., In a pluralistic society like India, with multiple religious, ethnic, regional and linguistic identities and a unique geopolitical position, internal security is a sine qua non for the nation's existence. The National Security Advisor, Mr Ajit Doval, noted in his address to the 2014 batch of Indian Police Service probation officers: 'We are now in the phase of fourth‑generation warfare, a difficult war against an invisible army, whether it is organised crime, terrorism, insurgency or foreign powers trying to meddle in our internal affairs.' He further stressed that wars have become too expensive and uncertain, and that civil society plays a crucial role in internal security.
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The Maoist insurgency led by the Communist Party of India-Maoist (CPI-Maoist) and various other banned outfits is arguably the largest internal security threat in India, as once declared by former Prime Minister Dr. Manmohan Singh. Having its genesis in the Naxalbari areas of West Bengal in 1967, the Maoist insurgency has evolved through various forms and shades., The Maoists' objective is to seize political power and herald a ‘New Democracy’ through a protracted armed struggle. In doing so, they reject parliamentary and democratic forms of governance in India by terming them a sham. Over more than five decades, the Maoists, under the garb of advocating liberty and self‑determination, have demolished hospitals, burned schools, damaged roads and killed people participating in the electoral process. The threat has resulted in mass‑scale violence, rape, targeted killings and other atrocities. Fatalities in Maoist‑related violence from 2004 to 2021 total 23,401 deaths and 8,529 injuries, according to the Ministry of Home Affairs., By rejecting democracy and the constitutionally established form of government, the Maoists have challenged the sovereignty of the Indian state. Their brutal killings of civilians, government officials and security forces reflect this security threat. Although there has been a substantial fall in Maoist‑related violent incidents in recent years, with many leaders neutralised or arrested, the threat has not been completely eradicated., The long‑standing militancy and violent ethnic conflicts in several North‑Eastern states constitute a serious internal security concern for the country. The Ministry of Home Affairs categorises these conflicts into three broad groups: separatist insurgencies demanding independence; autonomist insurgencies asserting sub‑regional aspirations; and intra‑ethnic conflicts among dominant and smaller tribal groups., Violence in the North‑East between 2014 and 2021 has involved thousands of incidents, resulting in the deaths of extremists, security forces and civilians, as well as numerous kidnappings and abductions. The Ministry of Home Affairs has observed a decline in insurgency‑related incidents in the region, with an 83 % reduction in civilian deaths and a 40 % reduction in security‑force casualties in 2017 compared with 2014., Despite the marked reduction, a complete wipe‑out of violence has not been achieved. The region continues to witness ethnic secessionist movements and tribal and ethnolinguistic separatist conflicts. Nagaland, then part of Assam, was the first to experience militancy, followed by similar movements in Mizoram, Tripura, Assam and Manipur. Internal conflicts between dominant and minority groups often blame the Indian state as a common enemy., Separatist militant groups and terrorist organisations such as the National Socialist Council of Nagaland (Khaplang) (NSCN‑K), United National Liberation Front (UNLF) in Manipur, United Liberation Front of Assam (ULFA), Garo National Liberation Army (GNLA) in Meghalaya, and All Tripura Tiger Force (ATTF) continue to challenge the sovereignty, unity and integrity of the nation. These sub‑regional aspirations leading to violent conflicts further dilute the democratic and constitutional ethos of India., Kashmir remains a flashpoint on India’s security agenda. The Ministry of Home Affairs, in its Annual Report 2021‑22, notes that Jammu and Kashmir has been affected by terrorist and secessionist violence, sponsored and supported from across the border, for more than three decades. Fatalities in Jammu and Kashmir from 2004 to 2021 show thousands of civilians and security personnel killed, with terrorist deaths also recorded each year., The ongoing militancy in Jammu and Kashmir is linked to infiltration of terrorists from across the international border as well as the Line of Control. The external dimension emanates from direct involvement of Pakistan in harbouring and supporting terrorist groups, while the internal dimension is tied to religious radicalisation wrapped in a Kashmiri nationalist narrative seeking separate statehood. The role of China, including the issuance of visas to people from Jammu and Kashmir and border skirmishes along the Line of Actual Control, also contributes to internal security challenges., Secessionist tendencies persist in other parts of the country. The movement for a separate Sikh state, ‘Khalistan’, peaked after 1984 but lost local support in the 1990s. Nevertheless, organisations across the Indian diaspora in Canada, Australia, the United Kingdom and the United States continue to mobilise the cause. In 2015, Sikhs for Justice launched a Referendum 2020 movement seeking an independent ‘India‑occupied Punjab’. The Indian government classified Sikhs for Justice as an unlawful association in 2019 and banned it., Various banned organisations, including the Students Islamic Movement of India (SIMI), Jamat‑ul‑Mujahideen Bangladesh (JMB), Popular Front of India (PFI), Rehab India Foundation (RIF), Campus Front of India (CFI), All India Imams Council (AIIC), National Confederation of Human Rights Organisations (NCHRO), National Women’s Front, Junior Front, Empower India Foundation, Indian Mujahideen and others, have been involved in fomenting anti‑national activities and terrorist acts. In 2017, the SIMI chief and ten others were convicted under Sections 124A, 122, 153A of the Indian Penal Code and relevant provisions of the Unlawful Activities (Prevention) Act., Section 124A of the Indian Penal Code, which criminalises sedition, is often alleged to be misused by governmental authorities to quell political dissent. According to data from the National Crime Records Bureau, 399 sedition cases were filed across the country, with a high of 93 in 2019, 73 in 2020 and 76 in 2021. Of the 322 cases filed between 2016 and 2020, chargesheets were filed in 144, 23 were found to be false or mistaken, and 58 were closed for lack of evidence. The conviction rate has fluctuated between 30 % and 33 %. Misuse is frequently attributed to police interpretation of the provision, which can vary depending on the officer’s rank and personal bias., The United Kingdom’s offence of sedition originated in the Statute of Westminster 1275 and was historically used to suppress speech deemed inimical to the Crown. Over time, the UK recognised that existing offences covered seditious conduct, and the Law Commission recommended repeal. The offence was finally abolished by Section 73 of the Coroners and Justice Act 2009, with the rationale that it was an archaic, over‑broad common‑law offence that could chill free speech and was unnecessary given other statutes., In the United States, the Constitution’s First Amendment protects freedom of expression, but the Sedition Act of 1798 made sedition a punishable offence. The Act was repealed in 1820, reinstated in 1918 during World War I, and later superseded by the Espionage Act of 1917. US courts have applied the “clear and present danger” test, as articulated in Schenck v. United States, to determine when speech can be lawfully restricted. Notable cases such as Abrams v. United States, Gitlow v. New York and Dennis v. United States have shaped the jurisprudence on sedition, balancing national security concerns with First Amendment protections.
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Again applying the clear and present danger test, the Supreme Court of India upheld the conviction on the grounds that: \the words of the act cannot mean that, before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited. If the Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required. The argument that there is no need for the Government to concern itself, for the Government is strong, it possesses ample powers to put down a rebellion, it may defeat the revolution with ease needs no answer. For that is not the question. Certainly, an attempt to overthrow the Government by force, even though doomed from the outset because of inadequate numbers or power of the revolutionists, is a sufficient evil for Congress to prevent. The damage which such attempts create both physically and politically to a nation makes it impossible to measure the validity in terms of the probability of success, or the immediacy of a successful attempt.\, The restriction on free speech has, however, been narrowly construed in subsequent cases. In Yates v. United States the Supreme Court distinguished 'advocacy to overthrow' as an abstract doctrine from an 'advocacy to action'. It was reasoned that the Smith Act did not penalise advocacy of abstract overthrow of the government and the Dennis decision did not in any way blur this distinction. It was held that the difference between these two forms of advocacy is that 'those to whom the advocacy is addressed must be urged to do something, now or in the future, rather than merely to believe in something'., In New York Times v. Sullivan the Supreme Court remarked that speech must be allowed a breathing space in a democracy and the government must not be allowed to suppress what it thinks is 'unwise, false or malicious'., In Whitney v. California the Supreme Court held that 'to knowingly be or become a member of or assist in organising an association to advocate, teach or aid and abet the commission of crimes or unlawful acts of force, violence or terrorism as a means of accomplishing industrial or political changes involves such danger to the public peace and the security of the State, that these acts should be penalised in the exercise of its police power.' Legislations penalising such acts were not considered an arbitrary and unreasonable exercise of State power., The Whitney case was overruled by Brandenburg v. Ohio, wherein the Supreme Court categorically held that 'freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.', The ratio laid down in the Brandenburg case was that 'mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action.' Pursuant to this case, restrictions on expression are subject to intense scrutiny. Thus, criticism or advocacy must lead to incitement of immediate lawless action in order to qualify for reasonable restriction under the First Amendment., The Constitution of the United States, though it forbids apparent restrictions on speech, contains various doctrines that are practised to avert hate speech. Doctrines such as the 'reasonable listener test', 'present danger test', and 'fighting words' are examples. The chilling effect concept has been recognised most frequently and articulated most clearly in decisions chiefly concerned with the procedural aspects of free speech adjudication., The first comprehensive legislation that contained the offence of sedition was the Crime Act, 1920. The provisions on sedition in this Act were broader than the common law definition as subjective intention and incitement to violence or public disturbance were not the sine qua non for conviction under these provisions. The Hope Commission constituted in 1984 recommended that the Australian definition of sedition should be aligned with the Commonwealth definition. Subsequently, the provisions on sedition were again reviewed by the Gibbs Committee in 1991. It was suggested that while the offence of sedition should be retained, convictions should be limited to acts that incited violence for the purpose of disturbing or overthrowing constitutional authority. In 2005, amendments were made in Schedule 7 of the Anti‑Terrorism Act (No. 2) 2005, including the sedition offence and defences. The Australian Law Reform Commission reviewed whether the use of the term sedition was appropriate to define the offences mentioned under the 2005 amendment. After a detailed study the ALRC Report suggested that the Australian Government should remove the term 'sedition' from federal criminal law and rename the relevant parts of the Criminal Code to refer to 'urging political or inter‑group force or violence'., The recommendation of the Australian Law Reform Commission was implemented in the National Security Legislation Amendment Act, 2010, wherein the term sedition was removed and replaced with references to 'urging violence offences'. Someone commits an urging violence offence if they intentionally urge another person or group to use force or violence to: (a) overthrow the Constitution, government or lawful authority; or (b) against a group distinguished by race, religion, nationality, national or ethnic origin or political opinion. Hence, although the nomenclature of the new offence has been changed, its essence remains essentially the same as sedition., The English common law sedition offences in Canada had their origins in the Court of Star Chamber. The most important of these, seditious libel, was later developed by courts to limit civil liberties flowing from the Revolution Settlement. The Settlement of 1688‑89 formally ended the English Revolution and included the Declaration of Rights, which established the supremacy of the acts of Parliament and the liberties of the subjects as represented by Parliament, including freedom of speech. The authority of scandalum magnatum permitted truth as a defence, but no such defence was available to a defendant charged with sedition. The offence only required criticism that 'scandalised' the government or brought the authorities into 'disesteem', without proof of actions against the state. Over the centuries, the law on sedition developed in accordance with the times., In modern day Canada, sedition is the use of speech or words to incite others to rebel against the government or governing authority. According to Section 5(g) of the Criminal Code of Canada, it is a crime to speak seditious words, publish a seditious libel, or be part of a seditious conspiracy. The Supreme Court of Canada, in Boucher v. The King, defined sedition as 'any practice whether by word, deed or in writing calculated to disturb the tranquillity of the State, and lead ignorant persons to endeavour to subvert the Government and the laws of the empire.' The Court added that the objective of sedition is to induce discontent and insurrection and bring the administration of justice into contempt., As per Section 59(1) of the Criminal Code, 'seditious words' are those that express a seditious intention. The Supreme Court has ruled that the settlement did not resolve all issues between the executive and legislature, giving rise to very different interpretations of its application. In this context, indirect limitations on criticism of the state emerged through executive control., Section 59(2) of the Criminal Code defines 'seditious libel' as one that expresses a seditious intention. It has been stated by the Supreme Court to be a libel that 'brings into hatred or contempt, or excites disaffection' with the government or the Crown through unlawful means., A 'seditious conspiracy' is defined in Section 59(3) of the Criminal Code as an agreement between two or more persons to carry out a seditious intention. According to the Supreme Court, this occurs when people work together to 'raise discontent and disaffection and stir up jealousies, hatred and ill‑will' against the government. A 'seditious intention', though not exhaustively defined, is presumed where anyone (a) teaches or advocates, or (b) publishes or circulates any writing that advocates the use, without authority of law, of force as a means of accomplishing a governmental change within Canada., Sedition is treated as an indictable offence punishable by a maximum of 14 years imprisonment, as per Section 61 of the Criminal Code. However, peaceful and lawful protests against the government or its policies are not considered sedition., Having discussed the nuances of the law of sedition in India extensively, the Law Commission is of the considered opinion that Section 124A of the Indian Penal Code should be retained. The reasons for the same are summarised hereunder., As discussed at length in Chapter 6, myriad threats to India's internal security exist. The Federal Court in Niharendu Dutt Majumdar observed that 'the right of every organised society to protect itself against attempts to overthrow is beyond denial.' Fitzgerald states that 'the fundamental requirement of any society is the ability to protect itself against annihilation or subjection; and the chief duty of any government is to safeguard the State and its institutions against external and internal attack.' B.P. Sinha, Chief Justice, observes in Kedar Nath Singh: 'Every State, whatever its form of Government, has to be armed with the power to punish those who, by their conduct, jeopardise the safety and stability of the State, or disseminate such feelings of disloyalty as have the tendency to lead to the disruption of the State or to public disorder.', Even though there are Central and State laws to deal with terror cases, such as the Unlawful Activities (Prevention) Act, 1967 and the Maharashtra Control of Organised Crime Act, 1999, Section 124A of the Indian Penal Code serves as the traditional penal mechanism to address the issue. Prompt and effective suppression of disintegrating tendencies is in the immediate interest of the nation. As Shri Soli J. Sorabjee once remarked in reference to Section 124A, 'The provision, properly interpreted and correctly applied, protects and preserves the integrity of the Indian State and is also a deterrent for persons who are minded to commit acts of incitement to violence and acts which cause disturbance of public order.' The ever‑proliferating role of social media in propagating radicalisation against India and bringing the government into hatred, often at the initiation and facilitation by adversarial foreign powers, further requires such a provision to be present in the statute. Section 124A of the Indian Penal Code has its utility in combating anti‑national and secessionist elements as it seeks to protect the elected government from attempts to overthrow it through violent and illegal means. The continued existence of the government established by law is an essential condition for the security and stability of the State. In this context, it becomes imperative to retain Section 124A and ensure that all such subversive activities are nipped in their incipiency., Sedition is a reasonable restriction under Article 19(2) of the Constitution of India. The contention that Section 124A is violative of Article 19(1)(a) does not hold ground because, as shown in the Constituent Assembly Debates, the Assembly substituted 'sedition' with 'which undermines the security of, or tends to overthrow, the State', considering the latter phrase to be of wider import. The first Amendment of the Constitution incorporated the words 'public order', 'friendly relations with foreign states', and 'incitement to an offence' as further restrictions on Article 19(1)(a). The Supreme Court, while dealing with the constitutionality of Section 124A in Kedar Nath Singh, held that Section 124A was constitutional as the restriction it sought to impose on the freedom of speech and expression was a reasonable restriction under Article 19(2)., The Supreme Court has observed that where two interpretations of a legal provision are possible, one rendering the provision constitutional and the other rendering it unconstitutional, the former construction should prevail. The doctrine of reading down has been employed sparingly by this Court to save statutes from being struck down, ensuring that the operation of the statute remains within the purpose of the Act and constitutionally valid., The Unlawful Activities (Prevention) Act, 1967 was enacted in view of various United Nations Security Council resolutions to prevent terrorist activities and to freeze the assets of terrorists. The objective, as explained in the Statement of Objects and Reasons, was to enable State authorities to deal with subversive activities directed against the territorial integrity and sovereignty of India. The Act also deals with demands for the cession of a part of the territory of India from the Union., The Unlawful Activities (Prevention) Act was amended in 2004, incorporating certain provisions of the Prevention of Terrorism Act, 2002. In 2008, it was further amended, adding other provisions of the Terrorist and Disruptive Activities Act, 1987. The Act was again amended in 2012, removing vagueness in the definition of 'terrorist act' to include offences that may threaten the economic security of the nation. Similarly, the National Security Act, enacted in 1980, provides a law for preventive detention., While the Unlawful Activities (Prevention) Act is a special law dealing with terrorist or subversive activities, the National Security Act deals only with preventive detention. Special laws and anti‑terror legislations aim to prevent or punish offences targeted towards the State. Section 124A of the Indian Penal Code seeks to prevent the violent, illegal, and unconstitutional overthrow of a democratically elected government established by law. Hence, the existence of the former does not by implication cover all elements of the offence envisaged under Section 124A. In the absence of Section 124A, any expression that incites violence against the Government would be tried under the special laws and counter‑terror legislations, which contain much more stringent provisions., It is often said that the offence of sedition is a colonial legacy because of its history of usage against India's freedom fighters. However, the entire framework of the Indian legal system is a colonial legacy, including the police force and the All India Civil Service. Merely ascribing the term 'colonial' to a law or institution does not by itself render it anachronistic. The colonial origins of a law are normatively neutral. The mere fact that a legal provision is colonial in origin does not ipso facto validate the case for its repeal. The requirement of any such legal provision in the present circumstances is what needs to be examined., Each country's legal system grapples with its own set of realities. Repealing Section 124A of the Indian Penal Code on the mere basis that certain countries have done so is essentially turning a blind eye to the glaring ground realities existing in India. Comparative studies of sedition laws in other jurisdictions show that even in advanced democracies, cosmetic changes have been made without removing the core substance of the offence. These jurisdictions have their own history, geography, population, diversity, and laws, which are not comparable to Indian circumstances. A colonial government is essentially a foreign one, where the ruler‑ruled relationship is that of master and servant. In a democratic government, the ruler is a servant of the people who elect him. Colonial rulers penalised harmless criticism to secure their own interests, whereas in a democracy people may indulge in healthy and constructive criticism. Section 124A seeks to penalise only the pernicious tendency to incite violence or cause public disorder in the guise of exercising the right to freedom of speech and expression., The test laid down by the Supreme Court in Kedar Nath Singh is a settled proposition of law. Unless the words used or the actions in question tend to incite violence or cause public disorder, the act would not fall within the ambit of Section 124A of the Indian Penal Code. However, in the absence of any such express indication, a plain reading of Section 124A may seem vague and confusing, resulting in misinterpretation and misapplication. Consequently, we recommend that the ratio of Kedar Nath Singh be incorporated in the phraseology of Section 124A to bring greater clarity in interpretation, understanding and usage of the provision., To prevent any alleged misuse of Section 124A of the Indian Penal Code, it is suggested that a mandatory recourse similar to that provided under Section 196(3) of the Code of Criminal Procedure, 1973 be undertaken prior to registration of a First Information Report with respect to an offence under this section. This can be achieved by introducing procedural safeguards that can be laid down by the Central Government through issuance of model guidelines. Alternatively, an amendment may be introduced in Section 154 of the Code of Criminal Procedure by incorporating a proviso: 'Provided further that no First Information Report for an offence under Section 124A of the Indian Penal Code shall be registered unless a police officer, not below the rank of Inspector, conducts a preliminary inquiry and, on the basis of the report made by the said police officer, the Central Government or the State Government, as the case may be, grants permission for registering a First Information Report.', The said police officer, not below the rank of Inspector, shall conduct a preliminary inquiry within seven days for the limited purpose of ascertaining whether a prima facie case is made out and some cogent evidence exists. The officer shall record the reasons in writing and only thereafter shall permission be granted under the proposed proviso. This safeguard is recommended by the Law Commission taking into consideration the observations made by the Supreme Court in S.G. Vombatkere v. Union of India., The 42nd Report of the Law Commission termed the punishment for Section 124A to be very odd. It could be either imprisonment for life or imprisonment up to three years only, but nothing in between, with the minimum punishment being only a fine. A comparison of the sentences provided for offences in Chapter VI of the Indian Penal Code suggests a glaring disparity. It is therefore suggested that the provision be revised to bring it in consonance with the scheme of punishment for other offences under Chapter VI, allowing courts greater room to award punishment in accordance with the scale and gravity of the act committed., The current Section 124A of the Indian Penal Code reads as follows: '124A. Sedition.—Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.' Explanation 1: The expression 'disaffection' includes disloyalty and all feelings of enmity. Explanation 2: Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence. Explanation 3: Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence., In accordance with the foregoing, we propose that Section 124A be amended as follows: '124A. Sedition.—Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India, with a tendency to incite violence or cause public disorder shall be punished with imprisonment for life, to which fine may be added, or with imprisonment of either description for a term which may extend to seven years, to which fine may be added, or with fine.' Explanation 1: The expression 'disaffection' includes disloyalty and all feelings of enmity. Explanation 2: Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence. Explanation 3: Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence. Explanation 4: The expression 'tendency' means mere inclination to incite violence or cause public disorder rather than proof of actual violence or imminent threat to violence.
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The State Directorate of Vigilance and Anti‑Corruption, represented by the Deputy Superintendent of Police, Vigilance and Anti‑Corruption, Chennai City, and Thiru I. Periyasamy, son of Irulappa Servai, residing at Durairaj Nagar, West Govindapuram, Dindigul, formerly Minister for Tamil Nadu Housing Board, Government of Tamil Nadu, are respondents in a criminal revision case filed under Section 397 of the Code of Criminal Procedure to call for the records on the file of the Additional Special Court for Trial of Criminal Cases Related to Elected Members of Parliament and Members of Legislative Assembly of Tamil Nadu, Chennai, passed in Criminal Miscellaneous Petition No. 4204 of 2023 in Criminal Case No. 13 of 2019, dated 17 March 2023, and to set aside the same. For the respondents: Mr. P. S. Raman, Advocate General, assisted by Mr. M. D. Muhilan, Government Advocate (Criminal Side) for Respondent 1; Mr. Ranjit Kumar, Senior Counsel, and Mr. A. Ramesh, Senior Counsel, for Respondent 2., This suo motu revision, under Sections 397 and 401 of the Code of Criminal Procedure, 1973, is directed against an order dated 17 March 2023 passed by the Additional Special Court for Trial of Criminal Cases Related to Elected Members of Parliament and Members of Legislative Assembly of Tamil Nadu at Chennai (hereinafter the Special Court) in Criminal Miscellaneous Petition 4204 of 2023 in Criminal Case No. 13 of 2019 discharging the second respondent herein (the third accused before the Special Court) from the case., A summary of the background facts is as follows: Mr. I. Periyasamy, the second respondent (A3), was elected as a Member of the Tamil Nadu Legislative Assembly on a DMK ticket in May 2006 and served as Minister for Housing from 2007 to May 2011. The prosecution alleges that between 2008 and 2009, Inspector C. Ganesan (A1) of the SBCID (Core Cell), Chennai, conspired with Kavitha (A2) and Minister I. Periyasamy (A3) to illegally obtain a High Income Group (HIG) plot in the Mogappair Eri Scheme of the Tamil Nadu Housing Board. Ganesan submitted an undated application to the then Chief Minister Dr. M. Karunanidhi claiming that his family was paying exorbitant rent in a private house, while in fact they were residing in Tamil Nadu Housing Board quarters paying a nominal rent of Rs 1,180. The application, numbered 5732/HB‑5(I)/08 on 06 March 2008, was processed by Secretary R. Sellamuthu of the Housing and Urban Development Department on 07 March 2008 and approved by Minister I. Periyasamy on 10 March 2008, resulting in Government Order No. 170 allotting Plot No. 1023 (HIG) to Ganesan within 96 hours. On 18 March 2008 the Tamil Nadu Housing Board issued a memo enclosing the Government Order, and the Manager (Marketing and Service), Mogappair Division, issued a provisional allotment requiring payment of Rs 74,13,100 by 31 March 2008. Prior to this, Ganesan entered into a Joint Development Agreement with Kavitha on 16 March 2008, granting her an 85 % share and retaining a 15 % share for himself, for which Kavitha paid the same amount as a non‑refundable deposit. A regular allotment order was issued on 28 March 2008, and a sale deed dated 07 August 2008 transferred the plot to A1. On 19 January 2009 A1 executed a power of attorney in favour of Kavitha, who then sold the plot to Kalaiammal for Rs 1,01,38,400, paying A1 a cheque of Rs 19,66,000 as his 15 % share, which A1 encashed on 20 July 2009. The prosecution contends that the entire conspiracy was orchestrated by Minister Periyasamy, who allotted the HIG plot under the Impeccable Honest Government Servant quota despite A1 not requesting it, thereby securing an unfair pecuniary advantage., In May 2011 the DMK government was voted out of power and the Directorate of Vigilance and Anti‑Corruption (DVAC) investigated the HIG allotment. A report submitted on 23 January 2012 led to the Tamil Nadu Vigilance Commission authorising registration of a regular case on 07 February 2012. An FIR (Crime No. 4 of 2012) was filed against C. Ganesan (A1), Padma (A2) and I. Periyasamy (A3) for offences under Sections 120‑B, 420 and 109 of the Indian Penal Code and Sections 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988. The investigating officer examined 22 witnesses and collected 45 documents, and a final report under Section 173(2) of the Code of Criminal Procedure was laid before the Special Court on 25 March 2013. The Speaker of the Tamil Nadu Assembly sanctioned the prosecution on 17 December 2012. The Special Court took cognizance of the case (Criminal Case No. 19 of 2013) on 24 June 2013 and issued summons for a hearing on 19 August 2013., On 19 August 2013 the accused appeared before the Special Court through counsel. The prosecution filed Criminal Miscellaneous Petition No. 42 of 2014 seeking permission for further investigation, which was allowed on 30 January 2014. A supplementary charge sheet filed on 13 June 2014 alleged that A1 was residing in a Tamil Nadu Housing Board flat at K. K. Nagar paying Rs 1,180 and had suppressed this fact. A1 filed a discharge petition under Section 239 of the Code of Criminal Procedure on 04 September 2013, which was dismissed on 06 August 2015, and the matter was adjourned for framing charges on 31 August 2015. A2 filed Criminal Miscellaneous Petition No. 1184 of 2015 seeking discharge; after ten hearings it was dismissed on 12 January 2016 and the matter was again posted for framing charges on 02 February 2016., The Special Court observed that the accused were repeatedly filing discharge petitions to gain time. On 19 February 2016 the Court recorded that no further petition would be entertained. Ganesan (A1) filed Criminal Revision Petition No. 1112 of 2015 before this Court challenging the Special Court’s dismissal of his discharge petition; an order dated 09 February 2016 dispensed with his personal appearance. On 25 February 2016 I. Periyasamy (A3) filed Criminal Miscellaneous Petition No. 366 of 2016 seeking discharge, contending that the prosecution was malicious and that no material linked him to the crime. The Special Court rejected his contentions, noting the lack of separate sanction under Section 197 of the Code of Criminal Procedure for offences under Sections 409 and 420 of the Indian Penal Code and that the Governor, not the Speaker, was the competent authority for sanction under Section 19 of the Prevention of Corruption Act. The discharge petition was dismissed on 06 July 2016, ending the three‑year saga before the Special Court., A2 Kavitha filed Criminal Revision Petition No. 983 of 2016 and A3 I. Periyasamy filed Criminal Revision Petition No. 957 of 2016 before this Court challenging the Special Court’s dismissal of their discharge petitions. Although no stay was granted, the Court called for the records from the Special Court on 22 July 2016, effectively neutralising the Special Court proceedings. The Special Court was forced to adjourn the matter for 34 hearings until 28 June 2019. On 05 July 2019 the matter was transferred to the Special Court for MP/MLA cases and renumbered as Criminal Case No. 13 of 2019. The Special Court addressed a letter to the High Court on 03 September 2019 requesting transmission of records, which were returned on 19 October 2019, six years after the original filing., On 31 October 2019 the Special Court noted the continued absence of the accused and directed their presence on 06 November 2019 for framing of charges. The Special Public Prosecutor sought deferment, and the Court, seeing through the tactic, passed an order on 28 November 2019 directing the accused to appear on 04 December 2019 for framing of charges, otherwise suitable orders would be passed. The accused appeared on 04 December 2019, charges were framed, and the accused denied the charges and claimed trial. The matter was posted to 18 December 2019, and on that date the counsel for the accused sought to challenge the framing of charges before this Court, leading to further adjournments to 10 January 2020, 27 January 2020, 05 February 2020, 06 February 2020 and 12 February 2020., On 12 February 2020 a memo indicated that Government Advocate Mohamed Muzammil had stated that the High Court had directed him to inform the trial court to adjourn the cases, resulting in an adjournment to 03 March 2020. A3 I. Periyasamy also filed Criminal Original Petition No. 34130 of 2019 under Section 482 of the Code of Criminal Procedure to quash the proceedings before the Special Court; an interim stay was granted on 09 March 2020. A1 filed Criminal Revision Petition No. 187 of 2020 challenging the Special Court’s framing of charges; this Court stayed the proceedings on 06 March 2020 and listed the matter for arguments on 20 March 2020. The COVID‑19 pandemic intervened, and the proceedings were deferred. On 30 April 2021 this Court extended the interim stay till 21 June 2021, and again till 16 July 2021. By this time the DMK had returned to power and A3 was again a minister., In the meantime the Special Court issued summons to Witness 1, Mr. P. Dhanabal, former Speaker of the Tamil Nadu Legislative Assembly, to depose. The police failed to serve the summons despite multiple orders, prompting the Court on 31 December 2021 to observe wilful disobedience and to direct the Additional Deputy Superintendent of Police concerned to appear. The Court also maintained a status‑quo on 05 January 2022 after hearing challenges to the discharge petitions, noting that the matters would be listed for further hearing., After eleven months, this Court dismissed the quash petitions and criminal revisions challenging the Special Court’s orders, thereby upholding the discharge of the accused. A3 I. Periyasamy filed Special Leave Petition (Criminal) Nos. 11381‑11382 of 2022 before the Supreme Court, which was withdrawn on 12 December 2022, ending the saga of the discharge petitions. In May 2022 the Special Court saw a change of judge, and on 15 February 2023 LW‑1, Mr. P. Dhanabal, appeared as Witness 1 and was examined. On 21 February 2023 a petition (Criminal Miscellaneous Petition No. 4204 of 2023) was filed by A3 Periyasamy under Section 19 of the Prevention of Corruption Act, ostensibly seeking discharge, which the Court identified as a mis‑characterisation of the provision., On 08 September 2023 this Court initiated the suo motu proceeding, finding that the Special Court’s order dated 17 March 2023 discharging the second respondent suffered from manifest illegalities and legal errors resulting in miscarriage of justice. Notices were issued to the State and the second respondent, who was served on 12 October 2023 and entered appearance through counsel. The Court fixed 12 February 2024 and 13 February 2024 for final hearing, and the matters were heard on those dates, with the matter reserved for orders on 13 February 2024., During the hearing, Mr. P. S. Raman, learned Advocate General, assisted by Mr. K. M. D. Muhilan, learned Government Advocate for the first respondent (DVAC), and Mr. Ranjit Kumar and Mr. A. Ramesh, learned Senior Advocates, assisted by C. Arun Kumar and R. Ashwin, learned counsel for the second respondent, made the following submissions: (a) The DVAC consistently objected that the second discharge petition was not maintainable once trial had commenced, as reflected in paragraphs 12‑14 of its counter‑affidavit filed on 04 March 2023; (b) Citing Ratilal Bhanji Mithani v. State of Maharashtra (1979) 2 SCC 179, the Advocate General argued that once charges are framed, the Magistrate has no power under Section 227 or any other provision to cancel the charge and discharge the accused; (c) The Advocate General pointed out that the second petition was filed under Section 19 of the Prevention of Corruption Act, 1988 after the trial had commenced, and that a learned single judge of this Court (S. Nagamuthu, J) in K. Selvam v. State (2010) 2 MWN (Cri) 463 held that Section 19 does not empower a Magistrate to discharge an accused after the trial has begun., Mr. Ranjit Kumar and Mr. A. Ramesh, learned Senior Counsel for the second respondent, submitted that the DVAC had registered an FIR against two persons for offences under Sections 120‑B, 420, 109 of the Indian Penal Code and Sections 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988, and that the Special Court correctly concluded that sanction was necessary to prosecute the second respondent for the Indian Penal Code offences, although no sanction under Section 197 of the Code of Criminal Procedure had been obtained. They argued that the amendment to Section 19 of the Prevention of Corruption Act, 1988 introduced a change of circumstance justifying the second discharge petition, that the expression \at the time of commission of the offence\ in Section 19(1)(b) refers to the date of the offence and not the date of taking cognizance, and that sanction and permission are distinct concepts. They relied on the Supreme Court decision in Nanjappa v. State of Karnataka (2015) 14 SCC 186, which allows discharge where no valid sanction exists, and on Narasimha Rao’s case (1998) 4 SCC 626, which holds that the Governor, not the Speaker, is the appropriate authority for sanction under Section 19 when the respondent is a minister. They distinguished State of Karnataka v. Subbe Gowda (2023) SCC Online SC 911, noting that in that case the discharge petition was filed after a memo withdrawing an earlier petition, whereas here the petition was filed mid‑trial. They also contended that the Special Leave Petition (Criminal) 11381‑11382 of 2022, withdrawn on 12 December 2022, does not affirm the order of this Court, and that the written submission challenging the jurisdiction of this Court under Sections 397/401 of the Code of Criminal Procedure was not canvassed in oral arguments., Finally, the Court examined the powers under Sections 397 and 401 of the Code of Criminal Procedure. Section 397(1) authorises the High Court or any Sessions Judge to call for and examine the record of any proceeding before an inferior criminal court within its jurisdiction for the purpose of ascertaining the correctness, legality or propriety of any finding, sentence or order, and may suspend execution of any sentence or order, or release the accused on bail pending examination. Section 401(1) confers on the High Court, in its discretion, the powers of a Court of Appeal or a Court of Session when it calls for a record, and provides that a tie among the judges shall be resolved as per Section 24. The Supreme Court has recognised the suo motu revisional powers of the High Court under these provisions in cases such as Eknath Shankarrao Mukkawar v. State of Maharashtra (1977) 3 SCC 25.
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High Court's power of enhancement of sentence, in an appropriate case, by exercising suo motu power of revision is still extant under Section 397 read with Section 401 of the Criminal Procedure Code, 1973, inasmuch as the High Court can by itself call for the record of proceedings of any inferior criminal court under its jurisdiction. The provision of Section 401(4) is a bar to a party, who does not appeal, when appeal lies, but applies in revision. Such a legal bar under Section 401(4) does not stand in the way of the High Court's exercise of power of revision, suo motu, which continues as before in the new Code., In Krishnan v. Krishnaveni, (1997) 4 SCC 241, the Supreme Court of India once again reiterated the suo motu revisional powers of the High Court under Sections 397 and 401 of the Criminal Procedure Code. It observed: Section 401 of the Code gives to every High Court the power of revision. Sub‑section (1) of the said section provides that in the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389 and 391 and on a Court of Sessions by Section 307. Apart from the express power under Section 397(1), the High Court has been invested with suo motu power under Section 401 to exercise revisional power., The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401 upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). When the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is the duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities committed by an inferior criminal court in its juridical process or illegality of sentence or order., More recently, in Honniah v. State of Karnataka, (2022) SCC Online SC 1001, the Supreme Court of India speaking through Justice D. Y. Chandrachud and Justice J. B. Pardiwala observed as follows: The revisional jurisdiction of a High Court under Section 397 read with Section 401 of the Criminal Procedure Code is a discretionary jurisdiction that can be exercised by the revisional court suo motu so as to examine the correctness, legality or propriety of an order recorded or passed by the trial court or the inferior court. As the power of revision can be exercised by the High Court even suo motu, there can be no bar on a third party invoking the revisional jurisdiction and inviting the attention of the High Court that an occasion to exercise the power has arisen. In the light of the aforesaid legal position, the power of this Court to initiate a suo motu revision under Sections 397 and 401 of the Criminal Procedure Code against an order of an inferior criminal court is no longer res integra and has travelled far beyond the orbit of courtroom debates., It must also be noted that at the time of initiating suo motu proceedings vide order dated 08 September 2023 as well during the final hearing of this matter, the High Court was holding the portfolio for Member of Parliament/Member of Legislative Assembly cases across the State of Tamil Nadu. That apart, pursuant to the administrative order dated 7 February 2024 of the Honorable Chief Justice, the instant case, Suo Motu Criminal Revision Case No. 1559 of 2023, as well as other connected cases have been specifically ordered to be listed before the High Court for hearing and disposal., To recapitulate the facts, it will be recalled that the second respondent (A3) had filed Criminal Miscellaneous Petition 366 of 2016 before the Special Court seeking discharge on various grounds including lack of sanction under Section 197 of the Criminal Procedure Code and the invalidity of the sanction order under Section 19 of the Prevention of Corruption Act, 1988. This discharge application was dismissed by the Special Court on 06 July 2016. The second respondent (A3) challenged the aforesaid order of the Special Court before the High Court in Criminal Revision Case 957 of 2016. A3 also filed Criminal Original Petition 34130 of 2019 under Section 482 of the Criminal Procedure Code seeking to quash the charges framed against him and all further proceedings before the Special Court. The High Court, by a common order dated 11 November 2022, dismissed Criminal Revision Case 957 of 2016 and Criminal Original Petition 34130 of 2019 filed by the second respondent (A3) and Criminal Revision Cases No. 1112 of 2015 and No. 983 of 2016 filed by A1 and A2 challenging the orders of the Special Court declining discharge. While dismissing the petitions the High Court observed: It is made clear that the observations made herein are only for the limited purpose in deciding the above petitions. The trial Court, uninfluenced by the observations made herein, shall proceed with the trial against A1 to A3 on its own merits during trial. Consequently, the connected miscellaneous petitions are closed., The common order of the High Court dated 11 November 2022 was assailed before the Supreme Court of India in Special Leave Petition 11391 (Criminal) of 2022. On 12 December 2022, the Supreme Court passed the following order: After making some submissions, learned Senior Advocates appearing for the respective parties seek permission to withdraw the present Special Leave Petitions. The Special Leave Petitions are dismissed as withdrawn., On 21 February 2023, the second respondent (A3) once again filed a petition seeking discharge. The petition was styled and filed under Section 19 of the Prevention of Corruption Act, 1988 although the said provision had nothing to do with discharge. The petition proceeds to state that (a) trial has commenced and that (b) the then Speaker of the Tamil Nadu Legislative Assembly had been examined and cross‑examined as LW‑1. It then sets out the following legal grounds seeking discharge: (a) The Speaker had accorded sanction under Section 19(1)(c) of the Prevention of Corruption Act, 1988. This sanction was invalid as it was granted by an incompetent authority. The competent authority, according to A3, was the Governor as he is the executive head of the State Government. (b) The Speaker is not the competent authority to grant sanction since he is not empowered to remove an MLA from office. What is contemplated under Section 19 is sanction but the Speaker in the instant case had granted only permission. (c) The prosecution was bad for want of sanction under Section 197 of the Criminal Procedure Code since the Indian Penal Code offences alleged against the second respondent (A3) were admittedly done while discharging his duty as a Minister. (d) The prosecution and the Speaker (LW‑1) failed to take note of Section 19(4) of the Prevention of Corruption Act, 1988., It must be noticed that the ground of lack of sanction under Section 197 of the Criminal Procedure Code and the incompetency of the Speaker to grant sanction under Section 19 of the Prevention of Corruption Act, 1988 were expressly raised by A3 and rejected by the Special Court in paragraph 8 of its order dated 06 July 2016 while dismissing the first discharge application of the second respondent (A3), an order which was also affirmed by the High Court on 11 November 2022., Reverting to the narration, the Special Court, which was directed by the High Court vide order dated 11 November 2022 to proceed with trial, very generously decided to entertain the second discharge petition of A3 under Section 19 of the Prevention of Corruption Act, 1988 by taking the same on file as Criminal Miscellaneous Petition 4204 of 2023 on 21 February 2023. As noticed in the earlier order dated 08 September 2023, the Special Court proceeded thereafter in lightning speed and finally allowed Criminal Miscellaneous Petition 4204 of 2023 within 21 days, i.e., on 17 March 2023, discharging the accused despite a clear and categorical direction by the High Court to proceed with trial. The High Court has no hesitation in observing that the conduct of the Special Court in entertaining the second discharge application contrary to the directions of the High Court is thoroughly condemnable and is seriously suspect on several counts., The following conclusions are discernible from the impugned order dated 17 March 2023 in Criminal Miscellaneous Petition 4204 of 2023 discharging the second respondent (A3): (a) An MP is a public servant. By analogy, the same logic applies to an MLA. (b) In paragraph 30, the Special Court arrived at the conclusion that the Supreme Court in P. V. Narasimha Rao v. State (CBI/SPE), (1998) 4 SCC 626 had held that an MP is a public servant within the meaning of Section 21 of the Indian Penal Code. (c) In paragraph 31, the Special Court set out its understanding of the ratio of P. V. Narasimha Rao v. State, (1998) 4 SCC 626. Of particular interest is the conclusion in paragraph 31(iii) and (iv) that the Speaker cannot be reckoned as a competent authority for the purposes of Section 19(1)(c) of the Prevention of Corruption Act, 1988 in respect of MPs/MLAs. According to the Special Court, in the absence of any power in the Speaker to remove MPs/MLAs, Section 19 of the Prevention of Corruption Act, 1988 does not apply to such members. (d) Having held as above, the Special Court concludes in paragraph 38 that as per the plain language of Section 19(1)(a) sanction to prosecute a public servant should be obtained from the Central Government or the State Government as the case may be and that any other person of an authority competent to remove him from his office shall be competent to accord sanction to prosecute. The Special Court did not notice that it was nobody’s case that Section 19(1)(a) of the Prevention of Corruption Act, 1988 was applicable to the second respondent (A3). Even the second respondent (A3) had no case that sanction had to be obtained under Section 19(1)(a). On the contrary, his petition contended that sanction under Section 19(1)(c) was faulty. (e) Moreover, Section 19(1)(a) cannot possibly apply since that provision is confined to a person employed or was, at the time of the commission of the offence, employed in connection with the affairs of the Union and is not removable from office save with the sanction of the Central Government. By applying Section 19(1)(a) to an MLA, the Special Court equated the second respondent (A3), a Minister of the Tamil Nadu Government, to a person employed with the Union Government who is removable from office with the sanction of the Central Government. This conclusion is completely perverse and bizarre apart from being legally and politically incorrect. (f) The Special Court then proceeds to commit another legal blunder by applying Section 19(2) of the Prevention of Corruption Act overlooking the fact that the provision would apply only in cases where there is a doubt as to the sanctioning authority. This is clear from the decision of the Supreme Court in Abhay Singh Chautala v. Central Bureau of Investigation, (2011) 7 SCC 141. In the case on hand, the Special Court categorically, but incorrectly, held that the sanctioning authority is the Governor. Thus, even if one goes by the Special Court’s flawed reasoning there was never any doubt as to the sanctioning authority so as to apply Section 19(2). Consequently, the conclusion of the Special Court to apply Section 19(2) is completely specious and perverse. (g) Applying (or mis‑applying) Section 19(2) the Special Court concluded that the time for reckoning the requirement of sanction is the date of commission of the offence, overlooking the settled position that under the Prevention of Corruption Act, 1988, the relevant date for sanction is the date on which the Court takes cognizance of the offences. By applying Section 19(2) the Special Court concluded that as A3 was a Minister at the time of commission of the offence, the authority competent to remove him was the Governor and not the Speaker. (h) Ironically, having erroneously applied Section 19(1)(a) and Section 19(2) in paragraph 38, the Special Court then abruptly concludes at paragraph 57 that the competent authority for sanction under Section 19(1)(c) is the Governor and not the Speaker., From a reading of the impugned order of the Special Court dated 17 March 2023 and the submissions of the learned senior counsel, the following questions arise for consideration: (i) Whether a second discharge petition is maintainable, and if so, at what stage? (ii) Whether the prosecution of the second respondent (A3) in Criminal Case 13 of 2019 is bad for want of sanction under Section 197 of the Criminal Procedure Code? (iii) Who is the competent authority to grant sanction under Section 19 of the Prevention of Corruption Act, 1988 in respect of the offences alleged to have been committed by the second respondent (A3)?, Mr. Ranjit Kumar, learned senior counsel submitted that there was no bar for the Special Court to entertain a second petition for discharge particularly since the Special Court in its order dated 06 July 2016, passed in the first discharge petition of A3, had granted liberty to do so. The learned senior counsel invited the attention of the High Court to the decisions in Nanjappa v. State of Karnataka, (2015) 14 SCC 186 and State of Karnataka v. C. Nagarajaswamy, (2005) 8 SCC 370 to contend that the question as regards lack of sanction goes to the root of the matter and affects the very jurisdiction of the Court to try the case. In such circumstances, it would be an exercise in futility to proceed with trial once the Court finds that the sanction is invalid or defective., The question as to when and at what stage a discharge petition could be entertained in a prosecution under the Prevention of Corruption Act fell for consideration before the Supreme Court of India in State of Karnataka v. S. Subbegowda, (2023) 4 Maharashtra Law Journal (Criminal) 393. The Supreme Court, after considering its earlier decision in Nanjappa v. State of Karnataka, (2015) 14 SCC 186, observed as follows: Having regard to the aforesaid provisions contained in Section 19 of the said Act, there remains no shadow of doubt that the statute forbids taking of cognizance by the Court against a public servant except with the previous sanction of the Government or authority competent to grant such sanction in terms of clauses (a), (b) and (c) to Section 19(1). It is also a well‑settled proposition of law that the question with regard to the validity of such sanction should be raised at the earliest stage of the proceedings, however it could be raised at a subsequent stage of the trial also. In our opinion, the stages of proceedings at which an accused could raise the issue with regard to the validity of the sanction would be (a) the stage when the Court takes cognizance of the offence, (b) the stage when the charge is to be framed by the Court, or (c) the stage when the trial is complete, i.e., at the stage of final arguments in the trial. Such issue, of course, could be raised before the Court in appeal, revision or confirmation, however the powers of such court would be subject to sub‑section (3) and sub‑section (4) of Section 19 of the said Act. It is also significant to note that the competence of the court trying the accused also would be dependent upon the existence of a valid sanction, and therefore it is always desirable to raise the issue of validity of sanction at the earliest point of time. It cannot be gainsaid that in case the sanction is found to be invalid, the trial court can discharge the accused and relegate the parties to a stage where the competent authority may grant a fresh sanction for the prosecution in accordance with the law. From the aforesaid, it is clear that a plea of discharge can be sought (a) at the time of taking cognizance, (b) at the stage of framing charges and (c) at the stage of final arguments. In the present case, the second discharge petition was filed after stages (a) and (b) and before stage (c). Consequently, a plea of discharge, after framing charges and in the midst of trial was not maintainable. This conclusion is fortified by the following observations in paragraph 15 of Subbegowda’s case: As a matter of fact, such an interlocutory application seeking discharge in the midst of trial would also not be maintainable. Once cognizance was taken by the Special Judge and the charge was framed against the accused, the trial could neither be stayed nor scuttled in the midst of it in view of Section 19(3) of the said Act. In the instant case, though the issue of validity of sanction was raised at an earlier point of time, the same was not pressed for. The only stage open to the respondent‑accused in that situation was to raise the issue at the final arguments in the trial in accordance with law. Thus, once the first discharge petition had been rejected and the trial had commenced, it was not open to the accused to commence another round of discharge proceedings in the midst of trial., In K. Selvam v. State, (2010) Criminal Law Journal 3240, a learned single judge of the High Court, Justice S. Nagamuthu, observed: As held by the Supreme Court in Ratilal Bhanji Mithani v. State of Maharashtra and Others, (1979) SCC (Criminal) 405, after framing of charges, the question of discharge of an accused does not arise. This view is consistently taken by the Supreme Court in several judgments. The law stands well settled that once charges have been framed, the question of discharging an accused does not arise at all. The learned judge further observed: If there are ten accused in a case under the Prevention of Corruption Act and for each accused there are separate sanctioning authorities, and at every stage, as soon as one sanctioning authority is examined, if a petition is filed seeking discharge, the proceedings will be endlessly going on. No statute can be interpreted in such a way as it is sought to be made in this case by the petitioner. For all these reasons, I firmly hold that a petition for discharge after the trial has commenced, even in respect of the accused falling under the provisions of the Prevention of Corruption Act, is not at all maintainable and therefore, the lower court was right in dismissing the petition., A similar attempt was made in K. Selvam v. State, (2010) Criminal Law Journal 3240, to file a discharge petition under Section 19 of the Prevention of Corruption Act, 1988. This was repelled by the High Court with the following observations: In so far as the power to discharge an accused after the framing of charges is concerned, I find no provision in Section 19 of the Act or in any other provisions of the said Act to empower the Magistrate to do so. Similar provision is not found in the Code of Criminal Procedure also. Therefore, Section 19 of the Act cannot be interpreted in such a manner to empower the Magistrate to discharge an accused after the trial has commenced. The decisions in State of Karnataka v. S. Subbegowda (2023) 4 Maharashtra Law Journal (Criminal) 393 and K. Selvam v. State (2010) Criminal Law Journal 3240 apply on all fours to the case on hand. The High Court has no hesitation in concluding that the second respondent was committing the grossest abuse of process by filing Criminal Miscellaneous Petition 4203 of 2023 seeking discharge for the second time with the obvious intent of scuttling the trial., Mr. Ranjit Kumar, learned senior counsel would contend that the decision in Nanjappa v. State of Karnataka, (2015) 14 SCC 186 was clear to the effect that a plea of discharge could be raised at any stage which implied that it could be raised even in the midst of trial. Before analyzing this decision, it is necessary to bear in mind the caution administered by the Constitution Bench in Padma Sundara Rao v. State of Tamil Nadu, (2002) 3 SCC 533. Courts should not place reliance on decisions without discussing how the factual situation fits with the facts of the decision relied upon. There is always peril in treating the words of a judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington v. British Railways Board [(1972) 2 WLR 537 : 1972 AC 877 (HL) [Sub nom British Railways Board v. Herrington, (1972) 1 All ER 749 (HL)]]. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. In view of the above, it is necessary to notice the facts of Nanjappa v. State of Karnataka, (2015) 14 SCC 186. Nanjappa was working as a Bill Collector in a taluk in Karnataka. He was prosecuted for demanding a bribe of Rs 500 to procure a copy of a certain resolution from the Panchayat. The trial court acquitted the accused after finding the evidence to be slender and after finding that the Chief Officer of the Zilla Panchayat had not accorded sanction under Section 19 of the Prevention of Corruption Act. On appeal, the High Court of Karnataka held that the issue of sanction was not raised at any stage before the trial court. Hence, the appellant was not entitled to raise the same at the conclusion of trial. Reappreciating the evidence, the High Court convicted the appellant for the offences charged. On appeal at the instance of Nanjappa, the Supreme Court held: The legal position regarding the importance of sanction under Section 19 of the Prevention of Corruption Act is thus much too clear to admit equivocation. The statute forbids taking of cognizance by the court against a public servant except with the previous sanction of an authority competent to grant such sanction in terms of clauses (a), (b) and (c) to Section 19(1). The question regarding validity of such sanction can be raised at any stage of the proceedings. The competence of the court trying the accused so much depends upon the existence of a valid sanction. In case the sanction is found to be invalid the court can discharge the accused and relegate the parties to a stage where the competent authority may grant a fresh sanction for the prosecution in accordance with law. If the trial court proceeds, despite the invalidity attached to the sanction order, the same shall be deemed to be null and void in the eyes of law and shall not forbid a second trial for the same offences, upon grant of a valid sanction for such prosecution., From the foregoing discussion, it is clear that Nanjappa v. State of Karnataka, (2015) 14 SCC 186 was a case where the issue of sanction was agitated before the trial court at the stage of final arguments. This is in complete consonance with the later view of the Supreme Court in State of Karnataka v. S. Subbegowda (2023) 4 Maharashtra Law Journal (Criminal) 393, wherein Nanjappa v. State of Karnataka, (2015) 14 SCC 186 has been referred to and followed. The use of the expression “any stage” by the Supreme Court in Nanjappa cannot be divorced from the facts of the case before it., Mr. Ranjit Kumar, learned senior counsel also referred to State of Karnataka v. C. Nagarajaswamy, (2005) 8 SCC 370, to contend that the power of discharge is available even after the framing of charges. This decision has been elaborately considered by Justice S. Nagamuthu in K. Selvam v. State (2010) Criminal Law Journal 3240. The High Court is in complete agreement with the following conclusions of the learned judge: In that case, factually, cognizance was taken on the basis of a sanction order, charges were framed, the accused was tried and finally, he was acquitted by the Trial Court on the ground that the sanction order was without jurisdiction and therefore, the very taking of cognizance as against the accused was bad in law. Subsequently, after obtaining fresh valid sanction, proceedings were again initiated on which cognizance was once again taken by the Trial Court. The accused sought quashing of the latter proceedings. The matter ultimately came before the Supreme Court of India. In those circumstances, the question before the Supreme Court was whether the order of acquittal recorded in the earlier proceedings for want of valid sanction would be a bar for the fresh proceedings in terms of Section 300 of the Criminal Procedure Code. A close reading of the above would substantiate the understanding that it was not at all the question before the Supreme Court as to whether an accused can be discharged after the framing of charges., For all the aforesaid reasons, the inescapable conclusion is that once the trial had commenced Criminal Miscellaneous Petition No. 4204 of 2023 filed by the second respondent (A3) seeking discharge was not maintainable. Consequently, the Special Court committed a gross illegality in entertaining and allowing a second discharge petition in the midst of trial. The High Court has no hesitation in holding that the order dated 17 March 2023 passed in Criminal Miscellaneous Petition No. 4204 of 2023 discharging A3 smacks of manifest illegality and grave procedural impropriety warranting interference under Sections 397 and 401 of the Criminal Procedure Code., Mr. Ranjit Kumar and Mr. A. Ramesh, learned Senior Advocates submitted in unison that the prosecution against the second respondent for offences under the Indian Penal Code was invalid for want of sanction under Section 197 of the Criminal Procedure Code. The Special Court has, in paragraph 30 of the impugned order, also opined that the second respondent was a public servant within the meaning of Section 21 of the Indian Penal Code., To test this argument, it is first necessary to set out Section 197(1) of the Criminal Procedure Code, in so far as it is material, which reads as follows: 197. Prosecution of Judges and public servants: (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction (save as otherwise provided in the Lokpal and Lokayuktas Act, 2013) (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government. From a plain reading of Clause (1) of Section 197 of the Criminal Procedure Code it is clear that it would apply only to persons who commit offences while acting or purporting to act in the discharge of his official duty and are removable from office with the sanction of the Government. Admittedly, on the date of the commission of the offence, the petitioner was an MLA and a Minister in the State Cabinet. It is too fundamental that an MLA, who is an elected representative of the people, cannot be removed from office at the behest of the Government. The point is no longer res integra.
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In State of Kerala v. K. Ajith, (2021) 17 Supreme Court Cases 318, the Supreme Court of India has observed thus: A plain reading of Section 197 Code of Criminal Procedure clarifies that it applies only if the public servant can be removed from office by or with the sanction of the Government. However, Members of Legislative Assembly cannot be removed by the sanction of the Government, as they are elected representatives of the people of India. They can be removed from office, for instance when disqualified under the Xth Schedule of the Constitution for which the sanction of the Government is not required., The argument that a Member of Legislative Assembly is a public servant within the meaning of Section 21 of the Indian Penal Code was raised and rejected long ago by a Constitution Bench in R.S. Nayak v. A.R. Antulay, (1984) 2 Supreme Court Cases 183, wherein it was held as follows: To say that a Member of Legislative Assembly by virtue of his office is performing policing or prison officers' duties would be apart from doing violence to language lowering him in status. Additionally, clause (7) does not speak of any adjudicatory function. It appears to comprehend situations where as preliminary to or an end product of an adjudicatory function in a criminal case, which may lead to imposition of a prison sentence, a person in exercise of the duty to be discharged by him by virtue of his office places or keeps any person in confinement. The decisions in Homi D. Mistry v. Shree Nafisul Hassan [ILR 1957 Bom 218 : 60 Bom LR 279], Harendra Nath Barua v. Dev Kanta Barua [AIR 1958 Ass 160] and Edward Kielley v. William Carson, John Kent [(1841-42) 4 Moo PCC 63] hardly shed any light on this aspect. Therefore, the submission that a Member of Legislative Assembly would be comprehended in clause (7) of Section 21 so as to be a public servant must be rejected. Consequently, the contention that the prosecution against the 2nd respondent (A3) was bad for want of sanction under Section 197 Code of Criminal Procedure must be rejected as completely misconceived., The next ground of attack by Mr. Ranjit Kumar and Mr. A. Ramesh, learned senior counsel for the 2nd respondent, was on the sanction/permission accorded under Section 19 of the Prevention of Corruption Act, 1988. According to them, sanction ought to have been given by the Governor and not by the Speaker. It was submitted by them in unison that Section 19(1)(b) would apply to the 2nd respondent (A3), and consequently by virtue of the Prevention of Corruption (Amendment) Act, 2018 the amended Section 19(1)(b) constituted a change of circumstance for agitating the issue of sanction in the second discharge petition. In fairness to the learned senior counsel, neither of them attempted to support the palpably perverse logic of the Special Court, which has been adverted to earlier., Mr. Ranjit Kumar would also contend that in its order dated 06.07.2016 the Special Court had granted liberty to agitate the issue of sanction under Section 19 after the evidence of the Speaker. In these circumstances, the sanction granted by LW-1, the former Speaker could be gone into by the Special Court., Section 19(1) of the Prevention of Corruption Act, 1988 reads as follows: 19. Previous sanction necessary for prosecution. (1) No court shall take cognizance of an offence punishable under sections 7, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014)] (a) in the case of a person who is employed, or as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government; (b) in the case of a person who is employed, or as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government; (c) in the case of any other person, of the authority competent to remove him from his office: Provided that no request can be made by a person other than a police officer or an officer of an investigation agency or other law enforcement authority to the appropriate Government or competent authority for the previous sanction of such Government or authority for taking cognizance by the court of any of the offences specified in this sub‑section, unless (i) such person has filed a complaint in a competent court about the alleged offences for which the public servant is sought to be prosecuted; and (ii) the court has not dismissed the complaint under section 203 of the Code of Criminal Procedure, 1973 and directed the complainant to obtain the sanction for prosecution against the public servant for further proceeding. Provided further that in the case of request from a person other than a police officer or an officer of an investigation agency or other law enforcement authority, the appropriate Government or competent authority shall not accord sanction to prosecute a public servant without providing an opportunity of being heard to the concerned public servant. Provided also that the appropriate Government or any competent authority shall, after the receipt of the proposal requiring sanction for prosecution of a public servant under this sub‑section, endeavour to convey the decision on such proposal within a period of three months from the date of its receipt. Provided also that in case where, for the purpose of grant of sanction for prosecution, legal consultation is required, such period may, for the reasons to be recorded in writing, be extended by a further period of one month. Provided also that the Central Government may, for the purpose of sanction for prosecution of a public servant, prescribe such guidelines as it considers necessary. Explanation: For the purposes of sub‑section (1), the expression public servant includes a person (a) who has ceased to hold the office during which the offence is alleged to have been committed; or (b) who has ceased to hold the office during which the offence is alleged to have been committed and is holding an office other than the office during which the offence is alleged to have been committed., As already noticed above, the 2nd respondent had initially pitched his case under Section 19(1)(c). The Special Court in paragraph 38 of the impugned order founded its reasoning on Section 19(1)(a). Not to be outdone, the contention raised on behalf of the 2nd respondent in the course of arguments was based neither on Section 19(1)(a) nor on Section 19(1)(c) but on Section 19(1)(b). Thus, a game of musical chairs was being played by the 2nd respondent on the issue of sanction within the three limbs of Section 49. Having closely examined the provisions, the contention that Section 19(1)(b) applies to the case of the 2nd respondent is completely misconceived. In the first place, Section 19(1)(b) applies only to a person who is employed or was, at the time of the commission of the offence, employed in connection with the affairs of the State and could be removed from office by the State Government. As we have already seen, the decision in State of Kerala v. K. Ajith, (2021) 17 Supreme Court Cases 318 settled the position that a Member of Legislative Assembly is not a person who can be removed with the sanction of the Government., Interestingly, prior to 2018, Sections 19(1)(a) and 19(1)(b) covered only cases where sanction is sought and the accused continued to remain in the employment of the respective Governments. The 2018 Amendment amended Clauses (1)(a) and (1)(b) of Section 19, and did not touch Section 19(1)(c). The object of the 2018 Amendment in amending only Clauses (1)(a) and (1)(b) of Section 19 can be gleaned from the 69th Report of the Department Related Standing Committee of the Rajya Sabha (February, 2014), and reads thus: Previous sanction of appropriate Government or competent authority is to be sought under Section 19 of the Prevention of Corruption Act, 1988 for corruption related cases whereas previous sanction of appropriate authority is to be sought for any sort of offences committed by public servants while discharging their official duty under Section 197 of the Code of Criminal Procedure, 1973. Amendment proposed to Section 19 of the Prevention of Corruption Act, 1988 through Clause -10 of the Bill is to extend the protection of previous sanction already available to serving public servant to honest public servants after their retirement or demitting public office in order to protect them from frivolous, vexatious even malicious prosecution. From the above, it is clear that the object of the 2018 Amendment was to extend the protection already available under Section 197 Code of Criminal Procedure to those officers who had retired or had demitted public office. It was for this reason that only Clauses (1)(a) and (1)(b) of Section 19 were amended to extend the protection to public servants under the Union under Section 19(1)(a), and public servants under the State under Section 19(1)(b). Consequently, Clauses (1)(a) and (1)(b) of Section 19 can apply only if the public servant can be removed from office with the sanction of the respective Government. In view of the decision in State of Kerala v. K. Ajith, (2021) 17 Supreme Court Cases 318, the case of the petitioner cannot fall in either clauses i.e., Clauses (1)(a) and (1)(b) of Section 19., The 2nd respondent was fully aware and appraised of this position since his second petition for discharge is founded entirely on Section 19(1)(c) and not on Clauses (1)(a) and (1)(b) of Section 19. Thus, the contention raised on the basis of Section 19(1)(b) is rejected as an afterthought and is completely devoid of merits., Turning to Section 19(1)(c) the argument which found favour with the Special Court is that the sanction/permission ought to have been accorded only by the Governor and not the Speaker. In Parkash Singh Badal v. State of Punjab, (2007) 1 Supreme Court Cases 1, it was held that the terminus a quo for a valid sanction under Section 19 is the time when the Supreme Court of India is called upon to take cognizance of the offence. In the case on hand, cognizance was taken by the Special Court on 24.06.2013, on which date the 2nd respondent (A3) was admittedly not a Minister but only a Member of Legislative Assembly as could be seen from paragraph 4‑II of his second petition seeking discharge., The legal position as regards sanction/permission under Section 19 of the Prevention of Corruption Act, 1988 for the prosecution of a Member of Legislative Assembly is governed by the decision of the Supreme Court of India in P.V. Narasimha Rao v. State (CBI/SPE), (1998) 4 Supreme Court Cases 626. The majority opinion delivered by Justice S.C. Agrawal held, in the context of a Member of Parliament, the Constitution does not confer on any particular authority the power to remove him from office. While holding that a Member of Parliament/Member of Legislative Assembly was nonetheless a public servant for the purposes of Section 2(c) of the Prevention of Corruption Act, 1988, the following procedure was devised in relation to the prosecution of a Member of Parliament/Member of Legislative Assembly under the Prevention of Corruption Act, 1988: Since there is no authority competent to remove a Member of Parliament and to grant sanction for his prosecution under Section 19(1) of the Prevention of Corruption Act, 1988, the Supreme Court of India can take cognizance of the offences mentioned in Section 19(1) in the absence of sanction but till provision is made by Parliament in that regard by suitable amendment in the law, the prosecuting agency, before filing a charge sheet in respect of an offence punishable under Sections 7, 10, 11, 13 and 15 of the 1988 Act against a Member of Parliament in a criminal court, shall obtain the permission of the Chairman of the Rajya Sabha/Speaker of the Lok Sabha, as the case may be. In the instant case, as on the date of taking cognizance of the offences, the 2nd respondent was a Member of Legislative Assembly with the result that it was the Speaker and not the Governor who was the competent authority to grant permission to prosecute the 2nd respondent in terms of the judgment of the Supreme Court of India in P.V. Narasimha Rao v. State (CBI/SPE), (1998) 4 Supreme Court Cases 626. On this analysis, the permission/sanction granted by the Speaker in the instant case does not suffer from any infirmity or want of authority., Coming to the other submission of Mr. Ranjit Kumar, learned senior counsel that the second discharge application was filed pursuant to the liberty granted by the Special Court, it is first necessary to set out the relevant passage from the order of the Special Court dated 06.07.2016 passed in the first discharge petition: On perusal of records admittedly at the time of registration of the case the petitioner was not a Minister and only a Member of Legislative Assembly. And hence, the contention raised by the learned senior counsel cannot be accepted without giving an opportunity to the prosecution to examine the sanctioning authority to establish that the Speaker has got the authority to accord sanction. A reading of the aforesaid passage does not suggest the grant of any liberty as contended by the learned senior counsel. Even if the Supreme Court of India is to read this passage the way suggested by him, in the light of the law laid down in State of Karnataka v. S. Subbegowda (2023) 4 MLJ (Cri) 393 (Supreme Court of India), it is not possible to conclude that the discharge petition could be maintained mid‑way through trial., The other contention of the learned senior counsel is that in the course of his cross‑examination, LW‑1 has admitted that the competent authority to grant permission was the Governor. It is not in dispute that charges were framed against the accused on 04.12.2019. LW‑1, the former Speaker was examined on 15.02.2023. The attention of the Supreme Court of India was drawn to the following passage in the cross‑examination of LW‑1: If told that generally only the Governor is empowered to issue consent order for filing a criminal case against a Minister, it is correct. If told that with the prior permission of the Speaker of the Legislative Assembly only a corruption case could be filed against a member but not by consent order, I do not know about it. The first sentence is a response to a tactless suggestion put to the witness that the Governor is the competent authority for filing a criminal case against a Minister. But, the 2nd respondent was not a Minister on the date of taking cognizance of the offence but was only a Member of Legislative Assembly as has been admitted by him in paragraph 4‑II of his second discharge petition. Consequently, the 2nd respondent (A3) cannot score any brownie points on the basis of this answer given by LW‑1., In conclusion and for the reasons stated above, the impugned order dated 27.03.2023, of the Special Court discharging the 2nd respondent (A3) from the case on the ostensible ground of a supposed defect/invalidity in sanction under Section 19 of the Prevention of Corruption Act, 1988 suffers from manifest perversity and gross illegality. It is also tainted by procedural impropriety as the Special Court had acted in open defiance of the order dated 11.11.2022 passed by the Supreme Court of India in Criminal Revision Case 1112 of 2015, Criminal Revision Case 957 and 983 of 2016 dismissing the first round of discharge petitions and directing the Special Court to proceed with trial. To compound the illegality, the Special Court has discharged the 2nd respondent (A3) from the case for all eternity as if the order of discharge on the ground of want of sanction operated as an acquittal. The Supreme Court of India has no hesitation in concluding that this case warrants the exercise of powers under Section 397/401 Code of Criminal Procedure to prevent the subversion of the criminal justice system through a palpably illegal order of discharge., The legitimacy of the administration of criminal justice will be eroded and public confidence shaken if Members of Legislative Assembly and Ministers facing corruption cases can short‑circuit criminal trials by adopting the modus operandi that has been carried out in this case. The public should not be led to believe that a trial against a politician in this State is nothing but a mockery of dispensing criminal justice. The Supreme Court of India is duty‑bound, under the Constitution, to ensure that such things do not come to pass., In the result, the following order is passed: i. The impugned order dated 27.03.2023 passed by the Additional Special Court for Trial of Criminal Cases Related to Elected Members of Parliament and Members of Legislative Assembly of Tamil Nadu (hereinafter the Special Court) in Criminal Miscellaneous Petition 4204 of 2023 in Criminal Case 13 of 2019 is set aside. ii. As the case in Criminal Case 13 of 2019 has been transferred to the Special Court for trial of Prevention of Corruption Act Cases, Chennai pursuant to the discharge of A3 from the case, the Special Court for Prevention of Corruption Act Cases, Chennai shall forthwith re‑transmit the case records to the Additional Special Court for Trial of Criminal Cases Related to Elected Members of Parliament and Members of Legislative Assembly of Tamil Nadu, Chennai. iii. Upon such transmission, the case shall stand restored to the file of the Additional Special Court for Trial of Criminal Cases Related to Elected Members of Parliament and Members of Legislative Assembly of Tamil Nadu, Chennai in its original case number. The aforesaid exercise shall be completed within one month from today i.e., on or before 26.03.2024. iv. All the accused shall appear before the Special Court on 28.03.2024. Upon such appearance, all the accused shall furnish a bond of Rs.1,00,000/- each with two sureties under Section 88 Code of Criminal Procedure to the satisfaction of the Special Court. v. The Trial Court shall re‑commence trial and ensure that the accused cross‑examine the prosecution witnesses on the day they are examined‑in‑chief, as directed by the Supreme Court of India in Vinod Kumar vs. State of Punjab, [2015 (1) MLJ (Crl.) 288]. If the accused adopt any dilatory tactics, it is open to the Trial Court to insist upon their presence and remand them to custody, as laid down by the Supreme Court of India in State of Uttar Pradesh vs. Shambhu Nath Singh [JT 2001 (4) SC 319]. vi. The trial court shall, as far as practicable, conduct trial from day to day, and shall complete the same on or before 31.07.2024. A compliance report be sent thereafter to the Registrar General of the High Court. vii. Though obvious, it is made clear that the Supreme Court of India has not examined or commented upon the merits of the case which shall be decided by the Special Court on merits, without being influenced by any of the observations made above. Suo Motu Criminal Revision Case 1559 of 2023 is allowed on the aforesaid terms.
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CM-10538-CWP-2023 ; CM-10539-CWP-2023 in/and Present: - Mr. Amandeep Vashisth, Advocate and Mr. Manish Soni, Advocate for the petitioner. Ms. Shruti Jain Goyal, Senior Deputy Advocate General, Haryana., The instant writ petition has been filed for raising a challenge to the investigation and the proceedings arising out of FIR No. 408 dated 29.09.2022 registered under Sections 409, 420 and 120-B of the Indian Penal Code, 1860 read with Sections 7, 7-A and 13 of the Prevention of Corruption Act, 1988 as well as the charge‑sheet dated 17.04.2023 and all ancillary proceedings arising therefrom., During the course of arguments, it was submitted by counsel for the petitioner that the Investigating Officer in the present case is Shri Ramaswamy Parthasarathy, Deputy Superintendent of Police, Anti Corruption Bureau, Faridabad, who is a retired Central Bureau of Investigation Officer and has been engaged in the State Vigilance Bureau., The charge‑sheet in question has been submitted in Supreme Court of India under his signature along with the signatures of Superintendent of Police Shri Seshan Balasubramony, also a retired officer engaged on contract., The said officers retired from the Central Government in 2022 and were engaged on a contractual basis as consultants to guide the Investigating Officer in the Anti Corruption Bureau. However, in the present case, instead of guiding the Investigating Officers, the contract employees have not only conducted the investigation and filled up the case diary but have also filed the final report under Section 173(8) of the Criminal Procedure Code., The retired police officials, not being legally authorized, competent or empowered to perform the official duties of the Investigating Officer and not being Police Officers under the Haryana Police Act, 2007 or empowered under the Prevention of Corruption Act, 1988, could not have conducted the investigation in the matter., It was argued that contractual appointment to the post of Superintendent of Police and Deputy Superintendent of Police runs contrary to the independence of the Investigating Agency and that such contractual appointment at those ranks is impermissible under the Police Act since appointment to police service can only be by direct recruitment, promotion or deputation., Having been engaged on contract basis, they cannot discharge functions as Gazetted Officers required to carry out the investigation under the Prevention of Corruption Act, 1988 or be conferred with the power of an Investigating Officer competent to submit a final report., Various other issues were also raised. Considering that the conduct of the investigation itself has been through persons engaged by the respondents on contract, the State Government was called upon to furnish details as to the provision of law under which an Investigating Officer at the Gazetted ranks could be engaged on contractual basis and be authorized under the Criminal Procedure Code and/or the provisions of the Haryana Police Act, 2007 or the Prevention of Corruption Act, 1988 to conduct investigation and to file a charge‑sheet., Reply by way of an affidavit of Pankaj Nain, Deputy Inspector General, Anti Corruption Bureau (Headquarters), Haryana has been filed. In the reply, the respondents have given a background specifying reasons for engagement of retired officers and the procedure followed for such engagement and that the engagement having been approved by the Chief Minister, there was no perversity in the functions being discharged., The State counsel was heard at length and the documents attached with the reply have been perused., The proposal sent by the Director General, State Vigilance Bureau to the Chief Secretary to the Government in the Vigilance Department was for engagement of Central Bureau of Investigation officials on deputation basis. The initial proposal did not suggest engagement of retired officers; however, in paragraph No.5 thereof, the proposal used a slash against serving/retired officers but referred to the same as engagement by way of deputation. The said proposal was stated to have been approved., The subject specified the proposal to be for deputation of Central Bureau of Investigation officers in the State Vigilance Bureau. Notwithstanding that the proposal was initially sent for engagement on deputation, the subsequent letter dated 09.12.2016 arbitrarily substituted the word 'deputation' for 'engagement'. By virtue of this change, the file was sent to the Government to engage retired officers from the Central Bureau of Investigation in the rank of Superintendent of Police/Deputy Superintendent of Police on contract basis. The proposal related to their engagement as outsourced consultants., Notwithstanding the aforesaid change in the subject from proposal for appointment by way of deputation to proposal for engagement of retired officers, the same was approved by the Chief Secretary to the Government of Haryana. Surprisingly, although the persons so engaged were to work as consultants on a fixed honorarium of Rs. 50,000 per month as outsourced officers, the terms of engagement were then sought to be modified to engage the officials at the rank of Superintendent of Police and Deputy Superintendent of Police on the minimum basic pay plus allowances, which was approved in relaxation vide communication dated 09.04.2022., There is no reference in the reply furnished by the State as to under what substantive provision of law the police officers could be engaged on contract basis to conduct investigation of the cases and to exercise the powers of Gazetted Officers and also file the final reports., An attempt was made by counsel for the respondent to contend that the engagement is in exercise of the executive powers; however, perusal of the documents appended with the reply does not show that any such power has been exercised by the competent authority., Further, the rank of Superintendent of Police in the State of Haryana is assigned in the cadre of All India Services (Indian Police Service) and it is incomprehensible to perceive that appointment at the post of an IPS cadre is being made on a contractual basis, more so when the State is not competent to make appointment to the substantive post itself., The Criminal Procedure Code confers the powers to investigate a cognizable case on Police Officers and the Police Officer is required to submit a report on completion of investigation under Section 173(4) of the Criminal Procedure Code. The expression 'Police Officer' has not been defined under the Criminal Procedure Code; however, the Haryana Police Act, 2007 defines a Police Officer to be a member of the Police Service of the State constituted under this Act and includes the IPS officer of the State cadre., Hence, a Police Officer competent to investigate and to file a final report is required to ex facie satisfy his status and test as a Police Officer under the Haryana Police Act, 2007. For a person to be a member of the Police Service, he has to be in the cadre as per the service jurisprudence since Police service means the service constituted under this Act., The Police Act does not approve or authorize engagement of a Police Officer on contract basis., Further, the Prevention of Corruption Act, 1988 mandates that in relation to offences arising out of the Prevention of Corruption Act, 1988, investigation is not to be conducted by an officer below the rank of Deputy Superintendent of Police, i.e., a Gazetted Officer., It is still not answered how the status of a Gazetted Officer could be conferred on a person who had been engaged on a contract basis as a consultant and under what order or capacity he could discharge the functions of an Investigating Officer and file final reports., The counsel appearing on behalf of the State could not give any satisfactory explanation other than reiterating that the file had been put up at the highest level and had been approved., A pointed query was also raised as to how, in the absence of any statutory power as an Investigating Officer, the same could be exercised and under what authority an act which is beyond the statutory power could be validated by such approval., The counsel for the petitioner prayed that the trial is about to commence and that the case is fixed for framing of charge. The proceedings ipso facto do not satisfy the requirements of law., Since vital questions arise for consideration of the Supreme Court of India as to whether Investigating Officers could be appointed to the Gazetted rank of Superintendent of Police and Deputy Superintendent of Police by way of contract and whether they were authorized to conduct investigation in law and file charge‑sheet, which is yet to be determined., Taking into consideration the circumstances noted above and noticing that the same might impact the entire proceeding itself, it is deemed expedient and necessary at this juncture to issue the following interim directions: (i) The investigation handed over by the State Vigilance Bureau to the persons engaged on contract basis shall henceforth be withdrawn with immediate effect till further orders; and (ii) The charge‑sheet filed by the above‑said contractual engagees as the Investigating Officer shall not be proceeded any further and the proceedings therein shall remain stayed till the next date of hearing., The matter is to come up on 16.12.2023 for further consideration. A photocopy of this order be placed on the file of the connected case., Vishal Sharma, Neutral Citation No.: 6 of 6
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S.B. Civil Writ Petition No. 3753/2006 Petitioner Versus State of Rajasthan through Chief Secretary, Government Secretariat, Jaipur; Deputy Secretary (J), Chief Minister Relief Fund, Government of Rajasthan, Government Secretariat, Jaipur; District Collector, District Jaipur; Rajendra alias Nenhe son of Motilal, presently in Central Jail, Jaipur. Respondent. For Petitioner(s): Ms. Naina Saraf, Advocate. For Respondent(s): None present. Order., Yatra naryastu pujyante ramante tatra Devata, yatraitaastu na pujyante sarvaastatrafalaah kriyaah is a famous shloka in Manusmruti which means where women are honoured, divinity blossoms there and where women are dishonoured, all actions no matter how noble remain unfruitful., The crime of rape can be regarded as the highest torture inflicted upon womanhood. It causes not only physical torture to the body of the woman but it adversely affects her mental, psychological and emotional sensitivity. Therefore, rape is treated as the most heinous crime against the very basic human right and women's most important fundamental right, namely the right of life. It is less a sexual offence than an act of aggression aimed at degrading and humiliating women. Such cases are required to be handled by the courts with utmost sensitivity and high responsibility., An unfortunate incident occurred with a two‑year‑old minor daughter of the petitioner on 19.07.2004, when rape was committed by respondent No.4 and a First Information Report No. 213/2004 was registered against the accused with the Police Station Sodala, Jaipur for the offences under Sections 365 and 376 of the Indian Penal Code. After investigation, he was charge‑sheeted and tried by the Court of Additional Sessions Judge (Fast Track) No.1, Jaipur City, which found him guilty and convicted him for the offences under Sections 365 and 376 IPC vide judgment dated 31.05.2005 and sentenced him to undergo ten years rigorous imprisonment with a fine of Rupees 500 for each offence, but no compensation has been awarded to her., After the aforesaid judgment, the petitioner submitted an application before the District Collector, Jaipur for grant of compensation of Rupees 3,00,000 to his daughter, a minor rape victim, but the said application remained undecided for want of any such provision in law., The need for compensating rape survivors was recognized by the Supreme Court of Bangladesh in the case of Al Amin Vs. State reported in (1999) 19 BLD (HCD) 307 where it was held that mere punishment of the offenders of sexual assault cannot give much solace to the victim and her family members. Adequate monetary compensation may redress the wrong and damage caused to the victims and the family members. This has to be awarded independently having no nexus with the provision of imposition of fine embodied in the Penal Code. A permanent mode of compensation has to be worked out. The Government may consider the matters under observations., Modern approach of victimology acknowledges that a crime victim has a right to be adequately compensated, rehabilitated and repaired. From the humanitarian point of view, there has been no scope to disagree that victims of crime especially the victims of rape must have something like reparation or compensation that can reduce their continuing sufferings and trauma., Previously, compensation to the victim was recognized under Section 357 of the Code of Criminal Procedure, where if the sentence involved levy of fine, the court could award compensation to the victim out of the fine amount, as determined by the court. Subsequently, on the basis of the 154th Law Commission Report, by an amendment on 31.12.2009, Section 357A was added to the Code of Criminal Procedure providing provision for compensation even in the case of acquittal of the accused. Under Section 357A of the Code of Criminal Procedure, all states in coordination with the Central Government were required to formulate a Victim Compensation Scheme for the state and the discretion was left upon the State and District Legal Services Authorities to decide the quantum of compensation., In exercise of the powers conferred by Section 357A of the Code of Criminal Procedure, the State Government framed a scheme for providing funds for the compensation to the victims or their dependents, who have suffered loss or injury as a result of the crime and who require rehabilitation. The scheme is known as the Rajasthan Victim Compensation Scheme, 2011 (the Scheme of 2011). Rule 5 of the Scheme of 2011 deals with the procedure for grant of compensation and the following schedule has been attached with this scheme, which deals with particulars of loss of injury and maximum limit of compensation:\n\n1. Loss of Life – Rupees 2,00,000\n2. Loss of any limb or part of body resulting 80 % or above handicap – Rupees 1,00,000\n3. Loss of any limb or part of body resulting 40 % & below 80 % handicap – Rupees 50,000\n4. Rape of minor – Rupees 3,00,000\n5. Rape – Rupees 2,00,000\n6. Rehabilitation – Rupees 1,00,000\n7. Loss of any limb or part of body resulting 40 % handicap – Rupees 25,000\n8. Loss of any injury causing severe mental agony to women and child victims in case like human trafficking – Rupees 25,000\n9. Simple loss or injury to child victim – Rupees 20,000\n10. Permanent disfiguration of the head or face by acid – Rupees 2,00,000., After enactment of the Scheme of 2011, the responsibility of its implementation has been shouldered on the Rajasthan State Legal Services Authority (RSLSA) and the District Legal Services Authority (DLSA). In order to maintain uniformity in implementation of the Scheme of 2011, the RSLSA issued general guidelines on 25.07.2012., As per the Scheme of 2011, a minor victim of rape is entitled to get compensation of Rupees 3,00,000 while the minor daughter of the petitioner has received a sum of Rupees 10,000 only from the Chief Minister's Relief Fund. The petitioner submitted an application before the District Collector, Jaipur District to grant compensation of Rupees 3,00,000 on 19.09.2005 but till date no amount has been awarded to the minor daughter of the petitioner. Hence, under these compelling circumstances, the petitioner has knocked the doors of the Rajasthan High Court by way of filing the present writ petition and has invoked the extraordinary jurisdiction of the Rajasthan High Court, contained under Article 226 of the Constitution of India., Now the question which arises before the Rajasthan High Court is whether the minor daughter of the petitioner is entitled to get the benefit of the Victim Compensation Scheme under Section 357A of the Code of Criminal Procedure and whether the provisions contained under the Victim Compensation Scheme, 2011 are applicable with retrospective effect or prospective effect., Prior to amendment in Section 357A of the Code of Criminal Procedure and prior to the 154th report of the Law Commission and enactment of the Scheme of 2011, the Union of India constituted the Malimath Committee, which was headed by Justice V. S. Malimath, former Chief Justice of the Karnataka and Kerala High Courts. The task assigned to this Committee was to examine the fundamental principles of criminal law to restore confidence in the criminal justice system., The Malimath Committee has made recommendations as to the compensation for victims. In paragraphs 6.8.7 and 6.8.8, the Committee recommended as follows: 6.8.7 Sympathising with the plight of victims under criminal justice administration and taking advantage of the obligation to do complete justice under the Indian Constitution in defence of human rights, the Supreme Court of India and High Courts in India have evolved the practice of awarding compensatory remedies not only in terms of money but also in terms of other appropriate reliefs and remedies. Medical justice for the Bhagalpur blinded victims, rehabilitative justice to the communal violence victims and compensatory justice to the Union Carbide victims are examples of this liberal package of reliefs and remedies forged by the apex court. The recent decisions in Nilahati Behera v. State of Orissa [(1993) 2 SCC 746] and in Chairman, Railway Board v. Chandrima Das are illustrative of this new trend of using constitutional jurisdiction to do justice to victims of crime. Substantial monetary compensations have been awarded against the instrumentalities of the State for failure to protect the rights of the victim.\n6.8.8 These decisions have clearly acknowledged the need for compensating victims of violent crimes irrespective of whether offenders are apprehended or punished. The principle invoked is the obligation of the State to protect basic rights and to deliver justice to victims of crimes fairly and quickly. It is time that the criminal justice system takes note of these principles of the Indian Constitution and legislates on the subject suitably., Thereafter, the Supreme Court of India in the case of Chairman, Railway Board Vs. Chandrima Das reported in (2000) 2 SCC 465 upheld the judgment passed by the Calcutta High Court and compensation of Rupees 10,00,000 was granted to a Bangladeshi foreign tourist with whom gang rape was committed at Howrah Railway Station., Hence, it is clear that the concept of grant of compensation to victims was not a new concept and it was recognised by the courts and that is why the courts have granted compensation to several rape victims in exercise of their inherent powers. Even in the case of Hari Singh Vs. Sukhbir Singh & Ors. reported in (1988) 4 SCC 551, the Supreme Court of India felt that the principles of compensation to crime victims need to be reviewed and expanded to cover all cases. It was also realised that the compensation should not be limited only to fines or penalties but the State should grant an adequate amount of compensation to the victims of the crime from its funds, even in the cases of acquittal of the accused or where the offender is not traceable or identifiable. It is in this background that the amended provisions of Section 357A of the Code of Criminal Procedure came into picture as the basis of the 154th report submitted by the Law Commission of India., Thereafter, the new provision of grant of Victim Compensation Scheme was brought into picture by way of introducing Section 357A in the Code of Criminal Procedure in the year 2009 but this amended provision nowhere mentions that the benefits of this Section are prospective or retrospective in nature., There is no doubt that procedural statutes are generally retrospective in nature and statutes which are substantive are prospective in their application, unless any express stipulation is made thereunder. Dealing with the similar situation, the Kerala High Court in the case of District Collector Vs. District Legal Service Authority & Ors. reported in 2020 SCC OnLine Ker 8292 held in paragraphs 24 to 26 as follows: 24. Section 357A of the Code of Criminal Procedure was brought in with effect from 31.12.2009 through the Code of Criminal Procedure Amendment Act, 2008 (Act 5 of 2009). The amended provisions do not mention anywhere that the amendment is prospective or even retrospective in character. 25. There is no dispute that procedural statutes are generally retrospective in operation, while statutes that are substantive are prospective in their application unless by express stipulation or by necessary intendment the provisions provide otherwise. 26. Substantive law is that part of the law which creates, defines and regulates the rights, duties and powers of parties, while procedural law, as the name itself indicates, relates to that part of the law which prescribes procedures and methods for enforcing rights and duties and for obtaining redress., In simpler terms, when substantive law creates, defines or regulates rights, procedural law creates the method for enforcing or having redress for the rights so created. The celebrated work by Salmond on Jurisprudence (12th Edition, South Asian Edition, 2016) states: \the law of procedure may be defined as that branch of the law which governs the process of litigation. It is the law of actions – using the term action in a wide sense to include all legal proceedings civil or criminal. All the residue is substantive law, and relates, not to the process of litigation, but to its purposes and subject matter. Substantive law is concerned with the ends which the administration of justice seeks; procedural law deals with the means and instruments by which those ends are to be attained. The latter regulate the conduct and relations of courts and litigants in respect of the litigation itself; the former determines the conduct and relations in respect of the matters litigated.\ In Ramanatha Aiyer’s Advanced Law Lexicon 4th Edition (2013), substantive law is stated to be that part of a law that creates, defines, and regulates the rights, duties, and powers of parties. The Supreme Court of India has approved these propositions on substantive law, as can be seen from the decision in Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa and Others v. N. C. Badharaj [(2001) 2 SCC 721] wherein it was held that \substantive law is that part of law which creates, defines and regulates rights in contrast to what is called adjective or remedial law which provides a method of enforcing rights\., A reading of Sections 357A(1)(4) and (5) of the Code of Criminal Procedure makes it explicit that the said sub‑clauses create a right upon the victim to obtain an award of compensation on satisfying the conditions stipulated therein. There was no statutory provision akin to Section 357A(4) of the Code of Criminal Procedure earlier. There was neither any remedy available to a victim to claim compensation against the State nor any obligation for the State to pay compensation towards a victim, especially when the accused had not been identified or traced and the trial had not taken place. The Rajasthan High Court is mindful of the occasions when the High Courts and the Supreme Court of India have ordered payment of compensation to victims. As rightly pointed out by Adv. Vinod, the learned Government Pleader, those were all instances in which the facts warranted such a grant of compensation since the crimes were either on account of State action or inaction. Section 357A(1)(4) and (5) of the Code of Criminal Procedure has thus created a right upon a victim in cases where the offender is not traced or identified and the trial has not taken place, to obtain compensation from the State Government for the rehabilitation of the victim. It has created and defined rights for a victim, and a duty upon the State Government to pay compensation. Thus Section 357A(1)(4) and (5) of the Code of Criminal Procedure is a substantive law and not a procedural law., As a substantive law, the aforesaid statutory provision will have only prospective application. However, in the case of Section 357A(1)(4) and (5) of the Code of Criminal Procedure, there is a difference. Rehabilitation of the victim is the scope, purport and import of Section 357A(4) of the Code of Criminal Procedure, when read along with Section 357A(1). This is more explicit when understood in the background of the recommendation of the 154th report of the Law Commission of India. Rehabilitation of the victim was a remedial measure. It remedied the weakness in the then existing provisions for compensating crime victims, especially those whose perpetrators had not been traced. The provision is remedial. Remedial statutes or provisions are also known as welfare, beneficent or social‑justice‑oriented legislation., While interpreting a provision brought in as a remedial measure, that too as a means of welfare for victims of crimes in which the perpetrators have not been identified and in which trial has not taken place, the Rajasthan High Court must always be wary and vigilant of not defeating the welfare intended by the legislature. In remedial provisions, as well as in welfare legislation, the words of the statute must be construed in such a manner that they provide the most complete remedy which the phraseology permits. The court must, always, in such circumstances, interpret the words in such a manner that the relief contemplated by the provision is secured and not denied to the class intended to be benefited., While interpreting Section 357A(4) of the Code of Criminal Procedure, the Rajasthan High Court cannot be oblivious of the agonised face of the victim and the trauma and travails such victims have undergone, especially when their offenders have not even been identified or traced out or a trial conducted. The agonising face of the victims looms large upon the Rajasthan High Court while considering the question raised for decision., With the aforesaid principles hovering over Section 357A(1)(4) and (5) of the Code of Criminal Procedure, the provision ought to be interpreted in such a manner that it benefits victims. If the said benefit could be conferred without violating the principles of law, then courts must adopt that approach. A substantive law that is remedial can reckon a past event for applying the law prospectively. Such an approach does not make the substantive law retrospective in its operation. On the other hand, it only caters to the intention of the legislature., In other words, when an application is made by a victim of a crime that occurred prior to the coming into force of Section 357A(4) of the Code of Criminal Procedure, a prospective benefit is given, taking into reckoning an antecedent fact. Adopting such an interpretation does not make the statute or the provision retrospective in operation. It only confers prospective benefits, in certain cases, to even antecedent facts. The statute will remain prospective in application but will draw life from a past event also. The rule against retrospectivity of substantive law is not violated or affected merely because a prospective benefit under a remedial statutory provision is measured by or dependent on antecedent facts; it does not necessarily make the provision retrospective in operation., The above view is fortified by the decision in The Queen v. The Inhabitants of St. Mary, Whitechapel (1848 12 QB 120) at 127, where Lord Denman CJ stated that \a statute is not properly called a retrospective statute because a part of the requisites for its action is drawn from a time antecedent to its passing\. The observations in the decision in Master Ladies Tailors Organisation v. Minister of Labour and National Service (1950 (2) All ER 525) are also relevant. It was held at page 527 that \the fact that a prospective benefit is in certain cases to be measured by or depends on antecedent facts does not necessarily make the provision retrospective\. The two English decisions were relied upon by the Supreme Court of India in Sree Bank Ltd. (in liquidation) v. Sarkar Dutt Roy & Co. (AIR 1966 SC 1953), while it was considering the retrospective application of Section 450 of the Banking Companies Act, 1949., In the judgment in Piyali Dutta v. State of West Bengal and Others (2017 Cr.LJ 4041), the Calcutta High Court held that Section 357A is time‑neutral, i.e., it does not distinguish between victims of a crime happening before the introduction of the section in the statute and those incidents of crime happening post its introduction. It was also held that the section does not make any distinction between victims on the basis of the time of occurrence of the crime and that segregation on the basis of time is unacceptable and would militate against the right to equality and equal treatment by the State guaranteed under the Constitution of India. Finally, the court held that victims under Section 357A of the Code of Criminal Procedure are entitled to get compensation for incidents that occurred even prior to the coming into force of the said provision. Paragraph 37 of the judgment reads as follows:\n(i) The provisions in Section 357A(1)(4) and (5) of the Code of Criminal Procedure are substantive in character.\n(ii) The victims under Section 357A(4) of the Code of Criminal Procedure are entitled to claim compensation for incidents that occurred even prior to the coming into force of the said provision.\n(iii) By giving the benefit to victims under Section 357A(4) of the Code of Criminal Procedure for crimes that occurred prior to 31.12.2009, the statutory provision is not given retrospective effect, and instead a prospective benefit is given based on an antecedent fact., Dealing with the similar situation, the Calcutta High Court in the case of Achiya Bibi Vs. State of West Bengal & Ors. reported in 2019 SCC OnLine Cal 1950 held in paragraphs 19 to 21 as follows: 19. Section 357A has come into the statute book in order to compensate and rehabilitate the victim. It is recognition of the right of a victim to receive compensation and rehabilitation notwithstanding the result of a criminal proceeding. The right to receive rehabilitation and compensation is not dependent upon or must await a recommendation made by a court under Section 357A(2) or an order on conclusion of trial under Section 357A(3). Rehabilitation and compensation cannot be denied to a victim on the ground that the criminal proceeding is yet to attain finality or that the court in seisin of the proceeding is yet to make a recommendation.\n20. West Bengal Victim Compensation Scheme, 2017 has come into effect on 17 February 2017. It has been promulgated by the State Government in coordination with the Central Government, in exercise of powers conferred by Section 357A of the Code of Criminal Procedure, 1973. Victim is defined in Clause 2(i) of the Scheme of 2017 as a person who has suffered loss or injury as a result of crime and requires rehabilitation. Clause 4 of the Scheme of 2017 has prescribed the eligibility of compensation. It contemplates grant of compensation to a victim where the offender is not traced or identified but the victim is identified and where no trial takes place. A person falling within the definition of the victim under the Scheme of 2017 and being eligible for compensation in terms of Clause 4 of the Scheme of 2017 cannot be denied the compensation. Clause 4 of the Scheme of 2017 is essentially a scenario under Section 357A(4) of the Code of Criminal Procedure, 1973. Clause 4 of the Scheme of 2017 cannot be construed to mean that the authority considering an application for grant of compensation under the Scheme of 2017 must await a decision of the court in seisin of the criminal proceedings. It can, however, take into consideration the quantum of compensation the victim received pursuant to order of the court in seisin of the criminal proceedings in awarding the compensation under the Scheme of 2017. It cannot deny consideration of an application for compensation simply on the ground that the court in seisin of the criminal proceeding is yet to decide whether the applicant is entitled to compensation or not or that such court did not pass an order directing compensation to be given. Operation, invocation and implementation of the Scheme of 2017 are not dependent upon any order of the court. The Scheme of 2017 is such that it operates notwithstanding the absence of any order of the court. The benefits of the Scheme of 2017 can neither be withheld nor its applicability or operation be suspended, pending a decision of a court or a direction of a court. The Scheme of 2017 is for the benefit of a victim and it must be implemented with the requisite urgency., Brajnandan Sinha (supra) considered what constitutes a court within the meaning of the Contempt of Courts Act, 1952. It held that a commissioner appointed under the Public Servants (Inquiries) Act, 1850 is not a court within the meaning of the Act of 1952. Ankush Shivaji Gaikwad (supra) considered Section 357 of the Code of Criminal Procedure. It held that award or refusal of compensation in a particular case may be within the discretion of the court. However, there exists a mandatory duty on the court to apply its mind to the question of award of compensation in every criminal case. The court has to take into account the capacity of the accused to pay. It observed that the power to award compensation was intended to reassure the victim that the victim is not forgotten in the criminal justice system. Piyali Dutta (supra) considered the West Bengal Victim Compensation Scheme, 2017 in the context of whether the scheme was retrospective in nature or not. It held that incidence of crime happening prior to the scheme's coming into effect cannot be denied compensation if such victim is otherwise entitled to compensation. Piyali Dutta (supra) was considered in Serina Mondal alias Piyada (supra). The court held that the object and purpose of the Scheme of 2017, which replaced an earlier scheme of 2012, is that a victim of a serious crime, especially a woman, needs urgent and immediate attention and both physical and mental rehabilitation. Such rehabilitation is not dependent on the pace of investigation or trial. Therefore, the requirements that the accused not be traced or identified and that the trial not have commenced need not be satisfied for entitlement of compensation under the 2017 scheme. The legislature could not impose an occurrence leading to the same result twice over as a condition precedent; multiple pre‑conditions must be independent occurrences., In the facts of the present case, therefore, the impugned decision of the State Legal Services Authority and the District Legal Services Authority cannot be sustained. The State Legal Services Authority is directed to disburse compensation to the petitioner under the Scheme of 2017 forthwith., Following the judgment of the Kerala High Court in the case of District Collector Vs. District Legal Service Authority (supra), the Karnataka High Court held in the case of Vakalpudi Venkanna Vs. The State of Karnataka & Ors. reported in MANU/KA/2277/2022 that the provisions contained under Section 357A of the Code of Criminal Procedure as well as the Karnataka Victim Compensation Scheme, 2011 are applicable to incidents that occurred prior to the said provision or scheme coming into force. The court observed that Section 357A and the scheme are applicable for the purpose of awarding compensation to the petitioner in relation to the demise of his son Narasimhulu, who expired on 08.10.2009, and that the order passed by the Victim Compensation Committee on 22.07.2015 indicates entitlement to compensation under Section 357A and the scheme., Following the judgments passed by the Kerala High Court in District Collector Vs. District Legal Service Authority, the Calcutta High Court in Achiya Bibi (supra) and the Karnataka High Court in Vakalpudi Venkanna (supra), this court finds no valid reason to take a different view., The Honorable Supreme Court of India in the case of Mohd. Haroon & Ors. Vs. Union of India & Ors.
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[Writ Petition (Criminal) No.155/2013] has held that no compensation can be adequate but since the State has failed in protecting such serious violation of fundamental rights, the State is duty bound to provide compensation, which may help victim's rehabilitation. The Honourable Supreme Court also noted that the obligation of the State does not extinguish on payment of compensation, rehabilitation of victim is also of paramount importance. The mental trauma that the victim suffers due to commission of such heinous crime makes rehabilitation a must in each and every case., Hence, it would be safe to hold that the amended provisions contained under Section 357A of the Criminal Procedure Code as well as the Rajasthan Victim Compensation Scheme, 2011 are applicable to the incidents occurred prior to enactment of the said provision and the Scheme, 2011 and the victim like the minor daughter of the petitioner is entitled to get compensation in terms of the Scheme of 2011., Crime of rape committed with the minor victim is a dehumanising one and an affront to human dignity. Hence, compensation should be awarded as a solace to the victim., In view of the discussions made hereinabove, the instant writ petition is partly allowed with direction to the respondents to pay a compensation of Rs. 3,00,000 to the victim daughter of the petitioner, after adjusting the amount of compensation received by her earlier., The respondents and Rajasthan State Legal Services Authority as well as the District Legal Services Authority, Jaipur are directed to comply with this order, in terms of the provisions contained under the Scheme of 2011 and the guidelines issued by the Rajasthan State Legal Services Authority within a period of three months from the date of receipt of this order., Minor victims of rape are entitled to get compensation of Rs. 3,00,000 where the incident occurred prior to the year 2009 provided they submitted a claim in this regard prior to the year 2009. A general mandamus is issued in favour of all minor victims of rape where the incident of rape was committed prior to year 2009 for award of compensation. This general mandamus would be applicable only in those cases where the applications were submitted prior to amendment of Section 357A of the Criminal Procedure Code. The Chief Secretary of the Government of Rajasthan and the Member Secretary, Rajasthan State Legal Services Authority are directed to look into the matter and do the needful at the earliest for disbursement of the amount of compensation without any further delay to such minor victims of rape., Before parting with this order, it is made clear that this order would not provide a new cause of action to any applicant and it would apply to the cases which are either pending before the competent authority and/or to the cases where litigation with regard to claim of victim compensation is pending on the date of this order only., Office/Registry is directed to send a copy of this order to the respondents, Chief Secretary of the Government of Rajasthan, Member Secretary Rajasthan State Legal Services Authority and Secretary District Legal Services Authority, Jaipur for necessary action and compliance of the order., All applications (pending, if any) stand disposed of. The parties are left free to bear their own costs., Keeping in view the fact that the identity of the victim and her parents should not be disclosed, the name of the petitioner and his father is dictated in alphabets. The Office is directed to issue the cause title of this petition along with a copy of this order to the respective parties of the litigation.
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The Insolvency and Bankruptcy Board of India has filed the above Transfer Petitions under Article 139(A) read with Article 142 of the Constitution of India seeking transfer of the Writ Petitions filed before High Courts to the Supreme Court of India., By a Notification dated 15 November 2019, the Ministry of Corporate Affairs, Government of India, in exercise of its power conferred under Section 1(3) of the Insolvency and Bankruptcy Code, 2016, brought into force the following provisions of the Insolvency and Bankruptcy Code, 2016 insofar as they related to personal guarantors to corporate debtors with effect from 1 December 2019: Clause (e) of Section 2; Section 78 (except with regard to fresh start process) and Sections 79; Sections 94 to 187 inclusive; Clause (g) to Clause (i) of sub‑section (2) of Section 239; Clause (m) to Clause (zc) of sub‑section (2) of Section 239; Clause (zn) to Clause (zs) of sub‑section (2) of Section 240; and Section 249., Writ Petitions were filed in the Delhi High Court and other High Courts challenging the Notification dated 15 November 2019 and the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process of Personal Guarantors to Corporate Debtors) Rules, 2019. The Writ Petitioners also sought a declaration that Sections 95, 96, 99, 100, 101 of the Insolvency and Bankruptcy Code, 2016 are unconstitutional insofar as they apply to personal guarantors of corporate debtors. The Writ Petitions filed in the Delhi High Court are scheduled to be heard finally on 10 November 2020. The Petitioner contended that several Writ Petitions have been filed in the other High Courts. The Petitioner requests the transfer of the Writ Petitions from all the High Courts to the Supreme Court of India to avoid the confusion caused by possible divergence of opinions expressed by the High Courts., Ms Madhavi Divan, learned Additional Solicitor General appearing for the Petitioner submitted that in view of the importance of the matter, it is imminent that all the Writ Petitions are transferred to the Supreme Court of India for an early resolution of the dispute. The learned Additional Solicitor General submitted that different opinions by the High Courts before which the Writ Petitions are pending would lead to confusion. The learned Solicitor General supported the submissions of the learned Additional Solicitor General and urged that the dispute pertaining to the validity of the Notification dated 15 November 2019 needs to be decided expeditiously. According to the learned Solicitor General, the best course would be to transfer the cases to the Supreme Court of India where the dispute can be finally resolved., The learned counsel appearing for the Respondents‑Writ Petitioners in the High Courts objected to the transfer of the Writ Petitions on the following grounds: (a) that the Writ Petitions in the Delhi High Court are ready for hearing as they are listed on 10 November 2020 for final disposal, therefore the Delhi High Court should be permitted to complete the hearing; (b) if the High Courts decide the matter, the Supreme Court of India will have the benefit of their opinion on the subject matter of the dispute; (c) that the Insolvency and Bankruptcy Board of India cannot maintain these Transfer Petitions and that Transfer Petitions could have been filed by the Union of India; (d) that transfer of the Writ Petitions from various High Courts to the Supreme Court of India would not hasten the process and lead to early disposal, and that the Writ Petitions will remain pending in the Supreme Court of India for a long period of time., After hearing the submissions made by the parties, we are of the considered opinion that the Writ Petitions pending in the High Courts pertaining to the challenge to the Notification dated 15 November 2019 and related issues have to be transferred to the Supreme Court of India. Transfer of the Writ Petitions to the Supreme Court of India would avoid conflicting decisions by the High Courts which are in seisin of the Writ Petitions. The Insolvency and Bankruptcy Code is at a nascent stage and it is better that the interpretation of the provisions of the Code is taken up by the Supreme Court of India to avoid any confusion and to authoritatively settle the law. Considering the importance of the issues raised in the Writ Petitions which need finality of judicial determination at the earliest, it is just and proper that the Writ Petitions are transferred from the High Courts to the Supreme Court of India., We direct the transfer of the Writ Petitions giving rise to the above Transfer Petitions which are pending before the High Courts to the Supreme Court of India. The Registries of the High Courts are directed to transmit the records of the Writ Petitions forthwith., As we have transferred the Writ Petitions filed challenging the Notification dated 15 November 2019 and related issues to the Supreme Court of India, we direct that no further Writ Petitions involving the challenge to the Notification dated 15 November 2019 by which Part III of the Insolvency and Bankruptcy Code, 2016 and other provisions insofar as they relate to personal guarantors to corporate debtors have been brought into force shall be entertained by any High Court. The interim orders passed by the High Courts, if any, shall continue till further orders., The Transfer Petitions are allowed, accordingly.
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Civil Writ (Public Interest Litigation) Petition No. 13628/2020 Prahlad Sharma, Son of Late Shri Mool Chand Sharma, Petitioner versus Union of India and Others, Respondents. For the petitioner: Dr. Abhinav Sharma, Advocate. For the respondents: Mr. R. D. Rastogi, Additional Solicitor General with Mr. C. S. Sinha, Advocate for Respondent No. 1; Major R. P. Singh, Additional Advocate General with Mr. Jaivardhan Singh Shekhawat, Advocate for Respondents No. 2 to 4; Mr. C. L. Saini, Advocate and Mr. Prateek Kasliwal, Advocate with Ms. Gauri Jasana, Advocate and Mr. Shubham Bhati, Advocate for Respondent No. 5; Members of Bar Council of Rajasthan. Order heard., The issue regarding framing appropriate legislation for the protection of advocates raised in this petition has remained pending since 2020. Judicial notice can be taken of the recent murder of a lawyer in the State, which has led to widespread agitation. At this stage, the respondents have not filed a reply. The State has filed an affidavit, but it contains limited detailed submissions., The record shows that after filing this petition, the State drafted a Bill titled Draft Rajasthan Advocate (Prevention of Offences and Damage of Loss to Property) Bill. The Learned Additional Advocate General will state that, considering the present situation, the matter will be considered at the highest executive level within a very short period., It is also noted that, given the difficulties faced by advocates such as harassment, threat or violence for discharging their duties as officers of the Supreme Court of India, the Bar Council of India has taken initiative and finalized a draft Advocates (Protection) Bill, 2021, which has been forwarded to the Government of India, Ministry of Law and Justice., Although the grievance of the members of the Bar has been taken up for consideration at various levels, no legislation has been enacted to date. The future steps contemplated by the respondents will become clear only after their reply., Learned counsel for the petitioner submits that, in view of the present situation, the Supreme Court of India may consider issuing guidelines until appropriate legislation is enacted by the legislature., We request the learned counsel appearing for the Union of India, the State Government and the Bar Council of Rajasthan to give their response on this aspect on the next date of hearing., Considering the nature of the issue involved in this petition, it is appropriate to seek assistance of the Bar Council of India., Therefore, the Bar Council of India, through its Secretary, should be impleaded in this petition as Respondent No. 6. An amended cause title should also be filed. Notice shall be issued to the Bar Council of India through its Secretary and made returnable within two weeks. The Bar Council of India may also provide appropriate suggestions towards framing of guidelines., Within the aforesaid period, all respondents who are already represented through their respective counsel should positively file their replies. In the meantime, the Learned Additional Advocate General will apprise the Supreme Court of India regarding various steps taken at the executive level., The case is listed for 20 March 2023. Mohita.
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Leave granted. On the basis of FIR No. 4 of 2018 dated 08-01-2018, registered at Vishrambagh Police Station, Pune, Maharashtra, which was originally registered under Sections 153A, 505(1B) and Section 34 of the Indian Penal Code, Section 120(B) was added on 06-03-2018 and further Sections 13, 16, 17, 18, 18B, 20, 38 and 40 of the Unlawful Activities (Prevention) Act, 1967 were added on 17-05-2018. The appellant’s name was added to the FIR on 22-08-2018 and he was arrested from his residence in Delhi on 28-08-2018. The appellant moved Writ Petition No. 2559 of 2018 seeking a writ of habeas corpus in the Delhi High Court. The Delhi High Court, apart from issuing notice, ordered that no further precipitate action of removing the appellant from Delhi be taken till the matter was taken at 04:00 P.M. The order was passed at 02:45 P.M., In the meantime, the Chief Metropolitan Magistrate at Saket, Delhi disposed of an application seeking transit remand with the following order: Police Station Vishrambagh, Pune, Maharashtra; under Sections 153A/505(1)(B)/117/34 of the Indian Penal Code and Sections 13/16/17/18/18B/20/39/40 of the Unlawful Activities (Prevention) Act. State versus Gautam Pratap Navlakha, 28-08-2018. Present: Shri Jagdamba Pandey, Learned Assistant Public Prosecutor for the State; Investigating Officer Assistant Police Inspector Sushil V. Bobde along with ACP Ganesh Gawade and DCP Bachchan Singh, Inspector Sanjay Gupta, Police Special Cell, Lodhi Colony, New Delhi. Accused Gautam Pratap Navlakha produced in police custody. Shri Om Prakash, Learned Legal Aid Counsel for the accused. The handwritten application was preferred by Assistant Police Inspector Sushil V. Bobde seeking transit remand of two days for the accused. The identity of the officer was established upon showing his identity card. The Investigating Officer submitted that the accused is required in the case registered at Vishrambagh Police Station, Pune, and has been arrested from his house at Kalkaji, Delhi without warrant. He is required to be produced before the competent Court, i.e., the Special Court, Shivaji Nagar, Pune, and therefore his transit remand may be granted., The Chief Metropolitan Magistrate considered the submissions of the Investigating Officer and the Assistant Public Prosecutor. As per the police papers, FIR No. 4/18 has been registered under the aforementioned sections at Vishrambagh Police Station, Pune, wherein the accused is required. According to the arrest memo, the accused Gautam Pratap Navlakha was arrested on 28-08-2018 at 2:15 p.m. at Kalkaji, Delhi. Intimation of arrest was given to his partner/friend. As the accused is required for further investigation, his transit remand is granted till 30-08-2018. The accused shall be produced before the Special Court, Shivaji Nagar, Pune, on or before 30-08-2018 without fail, be medically examined as per the directions of the Supreme Court, and a copy of this order shall be given to the Investigating Officer. The application for transit remand is disposed of accordingly. Necessary record shall be maintained by the Commissioner, Manish Khurana, District Court, Saket, New Delhi, dated 28-08-2018., Thereafter, when the writ petition filed by the appellant before the Delhi High Court came up at 04:00 P.M., the Delhi High Court passed the following order on 28-08-2018: The Court was informed at 4 p.m. by Mr. Rahul Mehra, learned Standing Counsel for the State, that an order was passed by the learned Chief Metropolitan Magistrate, South East District, Saket, in the post‑lunch session granting transit remand for producing the petitioner before the Special Court, Shivaji Nagar, Pune, on or before 30‑August‑2018. The Court was shown documents produced before the learned Chief Metropolitan Magistrate, most of which (including FIR No. 4 of 2018) are in Marathi and the application for transit remand is in Hindi. It is not possible to make out from these documents what precisely the case against the petitioner is. Since it was already 4:30 p.m., the Court directed that, pursuant to the order dated 28‑August‑2018 of the learned Chief Metropolitan Magistrate, the petitioner will not be taken away from Delhi and the case will be taken up as the first case tomorrow morning. Translations of all documents produced before the Chief Metropolitan Magistrate shall be provided to the Court tomorrow. The petitioner shall, in the meanwhile, be kept at the same place from where he was picked up, with two guards of the Special Cell, Delhi Police, along with local police originally present to arrest him, outside the house. Barring his lawyers and the ordinary residents of the house, the petitioner shall not meet any other persons or step out of the premises till further orders., A writ petition was filed in the Supreme Court as Writ Petition (Criminal) Diary No. 32319 of 2018 on the next day. The petition was filed by five distinguished persons, as observed by the Court in the judgment reported in Romila Thapar and Others versus Union of India and others. The subject matter was the allegedly high‑handed action of the Maharashtra Police and the arrest of five activists, including the appellant, on 28‑08‑2018 from their homes. The relief sought was a credible investigation into the arrest of the five human‑rights activists. Interim orders were passed by the Supreme Court, under which the benefit of house arrest of the appellant, inter alia, was extended to the others. The order of house arrest of the appellant was extended. The relief sought for an independent investigation was rejected by the majority of Judges, with Justice D.Y. Chandrachud dissenting. Paragraph 40 of the judgment reads: “Accordingly, this writ petition is disposed of with liberty to the accused concerned to take recourse to appropriate remedy as may be permissible in law.” The interim order passed by the Supreme Court on 29‑08‑2018 (Romila Thapar v. Union of India, 2018 SCC OnLine SC 1343) shall continue for a period of four weeks to enable the accused to move the court concerned. The proceedings shall be decided on their own merits, uninfluenced by any observation made in this judgment, which is limited to the reliefs claimed in the writ petition to transfer the investigation to an independent investigating agency or court‑monitored investigation. The investigating officer is free to proceed against the accused as per law. All accompanying applications are also disposed of in terms of this judgment., This judgment was rendered on 28‑09‑2018 by the Supreme Court. Thereafter, the writ petition filed by the appellant before the Delhi High Court was allowed. The relief originally sought was a writ of habeas corpus. The Court later became concerned with the legality of the order of transit remand passed by the Chief Metropolitan Magistrate, which we have adverted to. Paragraphs 28 to 31 of the Delhi High Court judgment dated 01‑10‑2018 state: (28) Several non‑compliances of the mandatory requirements of Article 22(1), Article 22(2) of the Constitution and Section 167 read with Sections 56 and 41(1)(ba) of the Code of Criminal Procedure, which are mandatory in nature, make the order passed by the learned Chief Metropolitan Magistrate on 28‑August‑2018 granting transit remand to the petitioner unsustainable in law. The order is hereby set aside. (29) In view of Section 56 read with Section 57 of the Code of Criminal Procedure, in the absence of the remand order of the learned Chief Metropolitan Magistrate, the detention of the petitioner, which has clearly exceeded 24 hours, is again untenable in law. Consequently, the house arrest of the petitioner comes to an end as of now. (30) It is clarified that this order will not preclude the State of Maharashtra from proceeding further in accordance with law. (31) At this stage, Mr. Navare submitted that the Court should extend the house arrest of the petitioner by two more days since the Supreme Court had itself extended his house arrest for four weeks. The submission overlooks the fact that the Supreme Court extended the petitioner’s house arrest only to enable him to avail of the remedies permissible to him in accordance with law. The extension was for that limited purpose and therefore the Court is unable to accede to the request of Mr. Navare., The appellant filed Writ Petition No. 4425 of 2018 dated 05‑10‑2018 for quashing the FIR. The Delhi High Court protected the appellant from arrest during the pendency of the said writ petition. A charge‑sheet was filed against the appellant’s co‑accused on 15‑11‑2018, followed by a supplementary charge‑sheet on 21‑02‑2019. On 13‑09‑2019, the Bombay High Court dismissed the appellant’s writ petition against the FIR, but the interim protection from arrest was extended by three weeks. The Special Leave Petition filed by the appellant (SLP (Criminal) No. 8862 of 2019) was disposed of by allowing the appellant to apply for anticipatory bail before the competent court. The Court extended the interim protection for another four weeks from 15‑10‑2019 and gave liberty to apply for regular or anticipatory bail. The application for anticipatory bail was dismissed by the Sessions Court on 12‑11‑2019. The appellant approached the Bombay High Court seeking anticipatory bail, which was declined by order dated 14‑02‑2020, but the High Court granted protection from arrest for four weeks. The Special Leave Petition challenging that order was dismissed by the Supreme Court on 16‑03‑2020. The Supreme Court noted that the appellant had enjoyed protection for approximately one and a half years and granted three weeks to surrender. On 08‑04‑2020, the Supreme Court extended the time by one week for surrendering, and the appellant surrendered before the National Investigation Agency, Delhi, on 14‑04‑2020. Seven days of police custody was granted by the Sessions Court, New Delhi, on 15‑04‑2020, followed by a further seven‑day remand on 21‑04‑2020. Before the expiry of police custody, he was remanded to judicial custody on 25‑04‑2020. He was transferred to Mumbai on 26‑05‑2020 and remanded to judicial custody. The appellant moved for default bail on 11‑06‑2020, calculating the period of custody to include 34 days of house arrest from 28‑08‑2018 to 01‑10‑2018, eleven days of custody with the National Investigation Agency from 15‑04‑2020 to 25‑04‑2020, and forty‑eight days in Tihar Jail, Delhi and Taloja Jail, Mumbai from 25‑04‑2020 to 12‑06‑2020. The National Investigation Agency filed an application for extension of time to file a charge‑sheet after 110 days of custody on 29‑06‑2020. The NIA Special Court rejected the default bail application on 12‑07‑2020. The appellant preferred an appeal before the Bombay High Court challenging the order dated 12‑07‑2020. On 09‑10‑2020, the NIA filed the charge‑sheet against the appellant, inter alia. By the impugned order dated 08‑02‑2021, the Bombay High Court dismissed the appeal filed under Section 21 of the NIA Act., We heard Shri Kapil Sibal, learned Senior Counsel, as well as Smt. Nitya Ramakrishnan, learned Senior Counsel assisted by Shri Shadan Farasat for the appellant, and Shri S.V. Raju, learned Additional Solicitor General, on behalf of the respondent., During the period of house arrest, the appellant was not supposed to meet anyone except his lawyers and the ordinary residents of the house. He could not step out of the premises and two guards of the Special Cell of Delhi Police were stationed outside the house. The Investigating Officer did not have any access to him or occasion to interrogate him. The transit remand order being stayed, it could not be said that the appellant was under detention of the police for investigation. Under Section 167(2) of the Code of Criminal Procedure, 1973, the magistrate must authorise the detention. The Delhi High Court, having stayed the transit remand and set it aside, held the detention to be illegal; therefore, the appellant cannot claim the benefit of default bail because the detention was not authorised by a magistrate. The period of house‑arrest custody cannot be treated as authorised custody under Section 167(2). The Court relied on the decision in Chaganti Satyanarayan & Ors. v. State of Andhra Pradesh, holding that the period of 90 days commences only from the date of remand and not from any earlier date, even if the accused was taken into custody earlier. Without a valid magistrate authorisation, the appellant was not entitled to default bail, and the house‑arrest period from 28‑08‑2018 to 01‑10‑2018 had to be excluded., The learned Senior Counsel for the appellant contended that the High Court’s reasoning that the 34‑day house‑arrest period could not be counted within the 90‑day period was untenable. He argued that nothing prevented the officers from interrogating the appellant after obtaining leave of the Delhi High Court. He submitted that Section 167 of the Code of Criminal Procedure contemplates granting custody as the magistrate thinks fit and does not make police access a condition. Judicial custody, granted from the first day of remand, also counts for the purpose of calculating default bail. Under Section 43D(2)(b) of the Unlawful Activities (Prevention) Act, police custody can be sought at any time, and there was no stay of investigation. The two conditions for attracting Section 167 are: (a) a person is arrested under Section 57 of the Code of Criminal Procedure while investigating a cognisable offence, and (b) he is produced before a magistrate after arrest. Both conditions were fulfilled as the appellant was arrested on 28‑08‑2018 and produced before the magistrate for remand. The appellant argued that the Delhi High Court’s setting aside of the remand and holding the detention illegal does not negate the existence of a remand under Section 167. He maintained that the house‑arrest order was a modification of the nature of the remand, not a stay of it, and that the High Court did not have inherent power to place a person in custody. Therefore, the period of house arrest should be counted as custody under Section 167., Mr. S.V. Raju, learned Additional Solicitor General, supported the order of the Delhi High Court. He pointed out that at the time the writ petition seeking a writ of habeas corpus was filed, the order of transit remand had not yet been passed by the Chief Metropolitan Magistrate, Saket. In the appellant’s anticipatory bail application, the appellant sought protection, which was granted and continued in various proceedings. He relied on the bar under Section 43(D)(4) of the Unlawful Activities (Prevention) Act against the grant of anticipatory bail. He referred to paragraph 12 of the order rejecting the appellant’s plea for anticipatory bail, noting that the appellant understood the house arrest as protection from custody and therefore not custody within the meaning of Section 167 of the Code of Criminal Procedure. In short, house arrest was permitted as an exercise of the extraordinary powers of the Court., It is further pointed out that house arrest, according to the appellant, is unknown to the Code. The respondent argues that an accused remanded to custody under Section 167 of the Code of Criminal Procedure cannot be released unless bailed or acquitted. There is no bail in favour of the appellant, and he was not remanded to judicial custody. The so‑called custody during house arrest was neither judicial nor police custody within the meaning of Section 167, as the investigating agency had no access to the accused. Thus, the 34‑day house‑arrest period was neither judicial nor police custody. The Delhi High Court’s order contemplated that house arrest came to an end with its judgment. The fact that the High Court did not grant bail on 01‑10‑2018 shows that it was not an order under Section 167. The High Court’s judgment treated the arrest of the appellant as non‑established because he was not bailed or placed in judicial custody. Consequently, the appellant became a free person entitled to apply for anticipatory bail, which he did. The refusal of anticipatory bail indicates that the earlier proceedings were treated as non‑established for practical purposes. The surrender by the appellant precluded him from projecting house arrest as custody within the meaning of Section 167. The order passed by the Chief Metropolitan Magistrate, Saket, was only an order for production, not for detention in custody. Reading Sections 56, 57 and 167 together, the order of transit remand is understood as extending the 24‑hour period for producing the accused before the competent magistrate, i.e., the court in Pune. Such orders are either police remand or judicial custody; the special order under Section 57 is for forwarding the accused to a magistrate with jurisdiction. If the accused is presented before a magistrate lacking jurisdiction, the magistrate cannot remand him to judicial custody. Therefore, the transit remand order is not an order for computing the 90‑day period; it is merely a production order. Even if it were considered an order under Section 167, it was in force for only a few hours before the Delhi High Court stayed it at around 4 p.m. on the same day. Including that one‑day period would not make the appellant eligible for default bail. The respondent cautions that the appellant’s interpretation would render police custody under Section 167 illusory., The investigating authorities would be deprived of the opportunity for custodial interrogation during the first 15 days or 30 days in case of offences under the Unlawful Activities (Prevention) Act. An interpretation that frustrates a fair investigation under the statute should be avoided., The maxim *actus curiae neminem gravabit* applies in the present case; the act of the Court should not negatively impact the investigating agency., The order passed by the Delhi High Court in the writ petition seeking habeas corpus was not an order under Section 167 of the Code of Criminal Procedure. If the appellant’s submission were accepted, it would mean that the appellant was remanded to police custody after 30 days, i.e., on 15‑04‑2020 and 21‑04‑2020, which he never objected to. This shows that the appellant’s present contention is a mere after‑thought. The period of arrest must be excluded and the period reckoned from the date of production, as based on the decision in Chaganti Satyanarayan (supra). Treating 15‑04‑2020 as the date of production aligns with that decision., Several issues arise regarding whether the 34‑day house‑arrest period should be counted towards the 90‑day period under Section 167 of the Code of Criminal Procedure: (1) What is the nature of an order of transit remand? Is it an order passed under Section 167? (2) What is the nature of the interim order dated 28‑08‑2018 passed in the writ petition by the appellant in the Delhi High Court? Are these orders passed under Section 167? (3) What is the effect of the Delhi High Court judgment dated 01‑10‑2018 wherein the arrest and transit remand were found illegal? (4) Does the house arrest amount to police custody or judicial custody? Can there be an order for custody other than police or judicial custody under Section 167? (5) Is house arrest not custody under Section 167 because the appellant could not be interrogated by the investigating officer? (6) What is the effect of the appellant being in police custody from 15‑04‑2020 to 25‑04‑2020 and his alleged acquiescence to the order and custody? (7) Do broken periods of custody traceable to Section 167 suffice to total the maximum period of custody permitted for default bail, or does the law envisage only continuous custody? (8) What is the impact of the mandates of Article 21 and Article 22 of the Constitution?, Before addressing the various issues, it is necessary to note certain salient features of the Constitution, the Code of Criminal Procedure and the Unlawful Activities (Prevention) Act. Article 21 of the Constitution declares that no person shall be deprived of his life or personal liberty except according to procedure established by law. Article 22(1) and (2) provide protection against arrest and detention: (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult and be defended by a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty‑four hours of such arrest, excluding the time necessary for the journey, and no such person shall be detained in custody beyond the said period without the authority of a magistrate., Chapter V of the Code of Criminal Procedure deals with the arrest of persons. Section 41 deals with situations in which any police officer may arrest any person without an order from a magistrate or without a warrant. Sections 41(1)(a) to 41(1)(d) provide safeguards to avoid arbitrary arrest and confer certain rights on the person arrested. These provisions were inserted by Act 5 of 2009 with effect from 01‑11‑2010. Section 43 of the Code of Criminal Procedure provides for the power to arrest even by a private person and the procedure to be followed in such a case. Section 48 reads: “A police officer may, for the purpose of arresting without warrant any person whom he is authorised to arrest, pursue such person into any place in India.” Sections 56 and 57 of the Code of Criminal Procedure are also relevant: Section 56 – “Person arrested to be taken before magistrate officer in charge of police station.” A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a magistrate having jurisdiction in the case, or before the officer in charge of a police station. Section 57 – “Person arrested not to be detained more than twenty‑four hours.”
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No police officer shall detain in custody a person arrested without a warrant for a longer period than is reasonable under the circumstances of the case, and such period shall not, in the absence of a special order of a Magistrate under Section 167 of the Code of Criminal Procedure, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court., Chapter VI deals with processes to compel appearance. Part A of Chapter VI deals with summons. Part B deals with warrant of arrest. The warrants of arrest contemplated are those issued by a court under the Code of Criminal Procedure. Section 76 of the Code of Criminal Procedure reads as follows: “Person arrested to be brought before Court without delay. The police officer or other person executing a warrant of arrest shall, subject to the provisions of Section 71 as to security, without unnecessary delay bring the person arrested before the Court before which he is required by law to produce such person, provided that such delay shall not, in any case, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court.”, Under Section 77 of the Code of Criminal Procedure, a warrant of arrest may be executed at any place in India. Chapter XII deals with information to the police and their powers to investigate. The mandatory duty of a police officer to register a first information report has been elaborately considered by a Constitution Bench of the Supreme Court of India in the decision reported in Lalita Kumari v. Government of Uttar Pradesh and others., Section 156 of the Code of Criminal Procedure reads as follows: “Police officer’s power to investigate cognizable case. (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called into question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under Section 190 may order such an investigation as above‑mentioned.”, Under Section 156 of the Code of Criminal Procedure, any police officer in charge of a police station can, without order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station has the power to try. Section 157 deals with procedure for investigation. The provision contemplates, inter alia, the power to proceed to the spot, investigate the facts and circumstances of the case, and, if necessary, take measures for the discovery and arrest of the offender. It is also pertinent to notice Section 167 of the Code of Criminal Procedure, which reads as follows: “Procedure when investigation cannot be completed in twenty‑four hours. (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty‑four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well‑founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub‑inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.”, Section 167 of the Code of Criminal Procedure continues: “(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction, provided that (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this subsection shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter; (b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. Explanation I: For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail. Explanation II: If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be. Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution. (2‑A) Notwithstanding anything contained in sub‑section (1) or sub‑section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub‑inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate, or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and, on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub‑section shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub‑section (2). Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be. (3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing. (4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate. (5) If in any case triable by a Magistrate as a summons‑case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary. (6) Where any order stopping further investigation into an offence has been made under subsection (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub‑section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify.”, Section 43(D)(2) of the Unlawful Activities (Prevention) Act provides for the modified application of Section 167 of the Code of Criminal Procedure., In State of Punjab v. Ajaib Singh, the Supreme Court of India had to deal with the ambit of Article 22(1) and also the scope of the expression ‘arrest’ contained therein., Broadly speaking, arrests may be classified into two categories, namely, arrests under warrants issued by a court and arrests otherwise than under such warrants. As to the first category, Sections 75 to 86 collected under sub‑heading B. Warrant of Arrest in Chapter VI of the Code of Criminal Procedure deal with arrests in execution of warrants issued by a court under that Code. Section 75 prescribes that such a warrant must be in writing, signed by the presiding officer, or, in the case of a bench of Magistrates, by any member of such bench and bear the seal of the court. Form No. II of Schedule V to the Code is a form of warrant for the arrest of an accused person. The warrant must state that the person to be arrested stands charged with a certain offence. Form No. VII of that schedule is used to bring up a witness; the warrant recites that the court issuing it has good and sufficient reason to believe that the witness will not attend as a witness unless compelled to do so. In either case, the warrant ex facie sets out the reason for the arrest, namely that the person to be arrested has committed, is suspected to have committed, or is likely to commit some offence. In short, the warrant contains a clear accusation against the person to be arrested. Section 80 requires that the police officer or other person executing a warrant must notify the substance thereof to the person to be arrested and, if so required, shall show him the warrant. It is thus abundantly clear that the person to be arrested is informed of the grounds for his arrest before he is actually arrested. Section 81 runs thus: “The police officer or other person executing a warrant of arrest shall, subject to the provisions of Section 76 as to security, without unnecessary delay bring the person arrested before the court before which he is required by law to produce such person.”, Apart from the Code of Criminal Procedure, there are other statutes which provide for arrest in execution of a warrant of arrest issued by a court. For example, Order 38 Rule 1 of the Code of Civil Procedure authorises the court to issue a warrant for the arrest of a defendant before judgment in certain circumstances. Form No. 1 in Appendix F sets out the terms of such a warrant and clearly recites that it has been proved to the satisfaction of the court that there is probable cause for belief that the defendant is about to do one or other of the things mentioned in Rule 1. The court may, under Section 55 read with Order 21 Rule 38, issue a warrant for the arrest of the judgment‑debtor in execution of the decree. Form 13 sets out the terms of such a warrant; the warrant recites the decree and the failure of the judgment‑debtor to pay the decretal amount to the decreeholder and directs the bailiff of the court to arrest the defaulting judgment‑debtor unless he pays the decretal amount with costs and to bring him before the court with all convenient speed. The point to be noted is that, as in the case of a warrant of arrest issued by a court under the Code of Criminal Procedure, a warrant of arrest issued by a court under the Code of Civil Procedure plainly discloses the reason for the arrest, setting out an accusation of default, apprehended or actual, and the person to be arrested is made acquainted with the reasons for his arrest before he is actually arrested., Also in paragraph 20, the Supreme Court of India laid down as follows: “Turning now to Article 22(1) and (2), we have to ascertain whether its protection extends to both categories of arrests mentioned above, and, if not, then which one of them comes within its protection. There can be no doubt that arrests without warrants issued by a court call for greater protection than arrests under such warrants. The provision that the arrested person should, within twenty‑four hours, be produced before the nearest Magistrate is particularly desirable in the case of arrest otherwise than under a warrant issued by the court, for it ensures the immediate application of a judicial mind to the legal authority of the person making the arrest and the regularity of the procedure adopted by him. In the case of arrest under a warrant issued by a court, the judicial mind had already been applied to the case when the warrant was issued and, therefore, there is less reason for making such production a matter of a substantive fundamental right. It is also perfectly plain that the language of Article 22(2) has been practically copied from Sections 60 and 61 of the Code of Criminal Procedure, which prescribe the procedure to be followed after a person has been arrested without a warrant. The requirement of Article 22(1) that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest indicates that the clause really contemplates an arrest without a warrant of court, for, as already noted, a person arrested under a court’s warrant is made acquainted with the grounds of his arrest before the arrest is actually effected. There can be no doubt that the right to consult a legal practitioner of his choice is to enable the arrested person to be advised about the legality or sufficiency of the grounds for his arrest. The right of the arrested person to be defended by a legal practitioner of his choice postulates that there is an accusation against him which he must defend. The language of Article 22(1) and (2) indicates that the fundamental right conferred by it gives protection against arrests effected otherwise than under a warrant issued by a court on the allegation or accusation that the arrested person has, or is suspected to have, committed, or is about or likely to commit an act of a criminal or quasi‑criminal nature or some activity prejudicial to the public or the State interest. In other words, the language of Article 22(1) and (2) shows that it was designed to give protection against the act of the executive or other non‑judicial authority. The Blitz case (Petition No. 75 of 1952), on which Sri Dadachanji relies, proceeds on this view, for there the arrest was made on a warrant issued, not by a court, but by the Speaker of the State Legislature, and the arrest was made on the distinct accusation of the arrested person being guilty of contempt of the Legislature. It is not, however, our purpose, nor do we consider it desirable, to attempt a precise and meticulous enunciation of the scope and ambit of this fundamental right or to enumerate exhaustively the cases that come within its protection. Whatever else may come within the purview of Article 22(1) and (2), it is sufficient to say for the purposes of this case that we are satisfied that the physical restraint put upon an abducted person in the process of recovering and taking that person into custody without any allegation or accusation of any actual, suspected or apprehended commission by that person of any offence of a criminal or quasi‑criminal nature or of any act prejudicial to the State or the public interest, and the delivery of that person to the custody of the officer in charge of the nearest camp under Section 4 of the impugned Act, cannot be regarded as arrest and detention within the meaning of Article 22(1) and (2). In our view, the learned Judges of the High Court over‑simplified the matter while construing the article, possibly because the considerations hereinbefore adverted to were not pointedly brought to their attention.”, It will be noted that with the proviso in the Code of Criminal Procedure, 1973, in Section 76, in the case of arrest under a warrant, the person is to be produced before the court within twenty‑four hours, excluding the time taken for travelling. Such a proviso was absent in Section 81 of the Code of Criminal Procedure, 1898, which was considered by the Supreme Court of India., In State of Uttar Pradesh v. Abdul Samad, the respondents, a husband and wife, were arrested for non‑compliance with an order of deportation passed against them. They were sent to Amritsar for deportation to Pakistan. They were produced before a Magistrate on 23 July 1960 at 10:00 a.m., who ordered them to be kept in the Civil Lines Police Station. They were brought back to Lucknow on 25 July 1960 based on a message from the Allahabad High Court requiring their production, and they were produced before the Deputy Registrar of the High Court, who directed their production on the next morning. The court dealing with the writ of habeas corpus by the respondents directed that the respondents be produced the next day. On 28 July 1960, the Allahabad High Court, focusing on the period from 25 July 1960 to 2:00 p.m. on 27 July 1960, found that during this period the respondents had not been produced before a Magistrate within twenty‑four hours of the commencement of custody, and the detention was violative of Article 22(2). The majority, with Justice K. Subba Rao dissenting, held as follows: It is very difficult to appreciate what exactly either of the learned Judges had in mind in making these observations holding that the guarantee under Article 22(2) had been violated. During the second stage at which the learned Judges held that the detention was illegal because of a violation of Article 22(2), the facts were these: The respondents had been brought back to Lucknow on a message requiring their production before the High Court. They reached Lucknow on 25 July at 1 p.m. and were produced at 3 p.m. the same day, i.e., within two hours of reaching Lucknow, before the Deputy Registrar. The Deputy Registrar had directed their production the next day and they were accordingly produced. Even assuming that the Deputy Registrar was not a judicial authority such as the learned Judges had in mind, the respondents had been produced on the morning of 26 July at 10:15 a.m. before the learned Judges, who were then at liberty to make any order regarding the custody they considered proper, and the time of their production before the Judges was not beyond twenty‑four hours from the time the respondents reached Lucknow. On 26 July the learned Judges who took part in the final decision passed an order directing the production of the respondents on 27 July 1960 at 2 p.m., which obviously permitted the previous custody to continue until further orders. They were produced accordingly at 2 p.m. on that day, and by a further order of 27 July 1960 the learned Judges directed the release of the respondents on bail; in pursuance of this order the respondents were released on 27 July 1960., The aforesaid reasoning is not inapposite in the context of the respondents’ case that only a Magistrate can authorise detention under Section 167 of the Code of Criminal Procedure., The writ petition filed by the appellant was mentioned before the Chief Justice of the Supreme Court of India on 28 August 2018 at 2:15 p.m. From the judgment, it is further clear that it was taken up at 2:45 p.m. on the same day. The Supreme Court initially ordered that no precipitate action be taken in removing the appellant until the matter was taken up again at 4:00 p.m. In the meantime, it appears that in the transit‑remand application moved by the Maharashtra police, the Chief Metropolitan Magistrate, Saket, passed the order on the transit‑remand application, which we have extracted., We have also noticed the contents of the order which was passed at 4:00 p.m. on 28 August 2018. The perusal of the judgment further reveals that the counsel for the State of Maharashtra, in fact, raised a preliminary objection to the maintainability of the writ. It reads as follows: “Mr. Vinay Navare, learned counsel appearing for the State of Maharashtra, raised a preliminary objection to the maintainability of the present writ petition relying on the recent judgment dated 5 September 2018 of a three‑judge bench of the Supreme Court in Criminal Appeal No. 1124 of 2018 (State of Maharashtra v. Tasneem Rizwan Siddiquee). He submitted that the Supreme Court, in that decision, reiterated the settled position in law, as explained in the decisions in Manubhai Ratilal Patel v. State of Gujarat, (2013) 1 Supreme Court Cases 314 and Saurabh Kumar v. Jailor, Koneil Jail, (2014) 13 Supreme Court Cases 436, that once a person is in judicial custody pursuant to a remand order passed by a magistrate in connection with an offence under investigation, a writ of habeas corpus is not maintainable.”, The High Court tides over this objection by holding as follows: “On the question of the maintainability of the present petition, as already noticed earlier, the Supreme Court of India had, even prior to the learned Chief Metropolitan Magistrate passing the order on the remand application, directed at around 2:45 p.m. on 28 August 2018 that no further precipitate action of removing the petitioner from Delhi be taken till the matter be again taken up at 4 p.m. Mr. Rahul Mehra, learned Standing Counsel for the State (National Capital Territory of Delhi), informed the Supreme Court that he had conveyed the aforementioned interim order to the concerned police officials at 2:54 p.m. on 28 August 2018. While it is not clear if the learned Chief Metropolitan Magistrate was actually informed of this interim order, the arrest memo of the petitioner shows that he was arrested at 2:15 p.m. at his residence in Nehru Enclave. Given a reasonable time taken to reach the Saket Court Complex, it is unlikely that the learned Chief Metropolitan Magistrate heard the matter, perused the remand application and then passed the order before 2:45 p.m., i.e., before the Supreme Court passed the interim order.”, Consequently, when the present habeas corpus petition was entertained and the above interim order was passed by the Supreme Court of India, there was no order of the learned Chief Metropolitan Magistrate granting transit remand of the petitioner. In each of the aforementioned decisions cited by Mr. Navare, the entertaining of the habeas corpus petition by the High Court was subsequent to the transit‑remand order passed by the concerned Judicial Magistrate. This one factor distinguishes the present case from the above cases. Consequently, the Supreme Court of India rejects the preliminary objection raised by Mr. Navare as to the maintainability of the present writ petition., The High Court, thereafter, proceeded to find that even before a Magistrate, before whom the transit‑remand application is filed, the mandatory requirement of Section 167 is that the entries in the case diary should be produced. The Magistrate is required to apply his mind to ensure there exists material in the form of entries to justify the prayer for transit remand. While the Magistrate examining the transit‑remand application is not required to go into the adequacy of the material, he is obliged to satisfy himself of the existence of the material. He further found that the Magistrate is bound to ask the arrested person whether, in fact, he has been informed about the grounds of arrest and whether he requires to consult and be defended by any legal practitioner of his choice. Although a duty lawyer empanelled under the Legal Services Authority Act, 1987 was shown representing the appellant, the High Court noticed that the Magistrate did not ask the counsel of the arrested person whether he was informed about the grounds of arrest and whether he asked to consult and be defended by the legal practitioner of his choice. The High Court emphasized that this requirement does not get diluted merely because the proceedings are for transit remand. It was found to be mandated under Article 22(1) of the Constitution. The appearance of the duty lawyer was found to be essentially cosmetic and not in the true spirit of Article 22(1). The materials in the case diary were found to be written in the Marathi language. It was undisputed that the Magistrate was not conversant with Marathi, which disabled the Magistrate from appreciating whether the requirements under Section 41(1)(b)(a) of the Code of Criminal Procedure were satisfied. It is thereafter noted that the Supreme Court of India disposed of the writ petition with the findings and the directions as noted in paragraphs 28, 29, 30 and 31, which have already been extracted., The Special Leave Petition against the judgment was disposed of as follows on 11 August 2020: ‘Heard the learned Solicitor General and the learned counsel appearing in the matter at length. The learned Solicitor General has submitted that the High Court should not have interfered in the matter and the order should not have been passed and it is palpably illegal. Ms. Nithya Ramakrishnan, learned counsel, has submitted that the order is absolutely correct and there is no ground to make any interference in the order. Be that as it may, the exercise is academic in nature and the accused have surrendered on 14 April 2020, pursuant to the order passed by the Supreme Court of India on 8 April 2020. We do not propose to go into the rival submissions, as the petitions have been rendered infructuous for practical purposes. However, we direct that the impugned order shall not be treated as a precedent for any other case; questions of law are kept open. The Special Leave Petitions and the pending interlocutory application(s), if any, are disposed of.’, The High Court in the impugned order has itself found that the period of thirty‑four days spent in house arrest by the appellant amounted to custody. We, however, consider it necessary to articulate our views regarding the nature of house arrest., In an article ‘A Brief History of House Arrest and Electronic Monitoring’ by J. Robert Lilly and Richard A. Ball, the following discussion is presented: House arrest has a long history dating at least to St. Paul the Apostle, who is reported to have been placed under house arrest (custodia libera) in Rome at about the age of sixty. St. Paul’s sentence lasted two years during which time he paid rent and earned his keep as a tent‑maker, thus avoiding becoming a ward of the church or state. While it would go far beyond the historical record to claim that St. Paul was the first person to pay for his keep under conditions of house arrest, it is interesting to note that many of today’s house‑arrest programs expect their clients to pay supervision fees, restitution, and their living expenses. Galileo Galilei, the Florentine philosopher, physicist and astronomer, also experienced house arrest after a “second condemnation” trial in Rome in 1633. After the trial, he returned to Florence and remained under house arrest for the rest of his life. More recently, Czar Nicholas II of Russia and his family were kept under house arrest in 1917 until their deaths in 1918.
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This history is a cause for concern among some because of the traditional use of the practice as a means of silencing political dissent. South Africa, for example, has a long history of control through “banning” and societies found in Poland, South Korea, India, and the former Soviet Union are known to employ “house arrest” primarily to deal with troublesome political dissenters. France introduced the concept of contrôle judiciaire in 1970 as a fairly straightforward form of pre‑trial detention involving a provision that employed home confinement as an alternative for common offenders. In 1975, Italy initiated a policy of affidamento in prova al servizio sociale (trial custody), which may be described as a form of parole following a shock period of three months incarceration. Other European countries have also experimented with some manner of home confinement as a means of dealing with a variety of offenders. The traditional use of “house arrest” should not in itself become a rationale for rejecting it., In the United States, “home detention” was put into practice in St. Louis as early as 1971. Home confinement as a policy for adult offenders began to draw more attention in 1983 with the publication of two different papers on the subject, the passage of the Correctional Reform Act, and the use of an electronic bracelet to monitor compliance with home confinement on the part of an offender in New Mexico. The New Mexico district court judge was inspired by a comic strip in which Spider‑Man was being tracked by a transmitter fixed to his wrist. He approached an engineer who designed a device consisting of an electronic bracelet approximately the size of a pack of cigarettes that emitted an electronic signal picked up by a receiver placed in a home telephone. If the offender moved more than approximately 150 feet from the home telephone, the transmission signal would be broken, alerting authorities that the offender had left the premises. Officials in New Mexico gave approval for trial use of the device and a research project funded by the National Institute of Justice eventually reported successful results with this electronic monitoring., In December 1985, Ms. Maureen Murphy was convicted of insurance fraud. She could have been sentenced to a maximum term of fifty years in prison, but the Federal Judge of the Eastern District of New York placed her under house arrest (see 108 Federal Reporter, District, page 437, 439 (Eastern District of New York 1985)). The sentencing order required that she be confined to her apartment except for medical reasons, employment, religious services, or essential food shopping. The Federal Judge noted that the penalty of house arrest had rarely been used in that district and was almost never used in the United States federal courts. The judge explained that, unlike other countries where house arrest is used to repress political dissent before trial, here it would be used after a full trial in which the defendant had been found guilty of a serious offense., House arrest is a form of intensive law‑enforcement supervision characterised by confinement to the offender’s place of residence with permission to leave only for explicit, pre‑authorized purposes. Generally it is imposed as a penal sanction in lieu of incarceration and mandated by the sentencing judge as a condition of probation. In Florida, however, house arrest is considered a criminal sanction entirely separate from probation. The Florida Community Control statute mandates that the court impose intensive supervision and surveillance for an offender placed into community control, which may include confinement to an agreed‑upon residence during hours away from employment and public‑service activities. The statute classifies three tiers of permissible travel: essential travel (work, religious expression, vocational or educational training, self‑improvement programming, public service, and scheduled appointments with the supervising officer); travel for basic needs of the community controllee; and emergency travel, which may occur without prior authorisation provided it is reported no later than the following day., In United States v. Wayte the defendant was convicted for failure to register with the Selective Service System. The imposition of sentence was suspended and the defendant was placed on probation for six months. The court ordered that the entire probationary period be spent under house arrest at the residence of Wayte’s grandmother, and that Wayte be allowed to leave his site of confinement only for emergency purposes with the permission of the probation officer. The house arrest regime in Wayte was the most restrictive reported; the defendant was unable to obtain outside employment and any travel, including for religious expression, required approval as an emergency. The Florida Community Control discussion notes that, although house arrest is generally imposed as a special condition of probation, it includes a distinctly retributive component. The sentencing court in Murphy described the incorporation of retribution, humiliation, and deterrence into the traditionally palliative scheme of probation, stating that some people would consider the sentence too lenient while others would find it too humiliating. Public humiliation, the court observed, serves as a deterrent similar to the historical use of stocks., Among the advantages perceived in promoting house arrest are the avoidance of overcrowding of prisons and cost savings. However, concerns have emerged regarding the proper supervision of house arrest. Because of the particularly restrictive nature of home confinement, the implicated constitutional right might not be waivable. If a confinee’s housing is substandard, home confinement imposed by the state may violate the Eighth Amendment prohibition on cruel and unusual punishment. Similarly, if a regime of home confinement does not include access to a house of worship, the state would be coercing the offender to waive or transfer the inalienable right to freedom of worship guaranteed by the Free Exercise Clause of the First Amendment of the United States Constitution., The European Court of Human Rights (Grand Chamber) in Buzadji v. Moldova (398 Butterworths Human Rights Cases 42) dealt with a case against the Republic of Moldova lodged under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms, 1950. The Court held that mere restrictions on the liberty of movement fall under Article 2(1) of Protocol No 4, but the distinction between restriction of movement and deprivation of liberty is one of degree or intensity, not of nature. The Court, citing cases such as Guzzardi v. Italy, Mancini v. Italy, Lavents v. Latvia, Nikolova v. Bulgaria, Ninescu v. Moldova, and Delijorgji v. Albania, concluded that house arrest, in view of its degree and intensity, amounts to deprivation of liberty within the meaning of Article 5 of the Convention. In Storck v. Germany (2005) 43 EHRR 96, the Court held that the right to liberty is so important in a democratic society that a person cannot lose the protection of the Convention merely by consenting to detention. The Court also noted that the criteria of degree and intensity refer only to restrictions on liberty of movement, not to differences in comfort or internal regime of different places of detention., In India, the concept of house arrest has its roots in laws providing for preventive detention. Section 5 of the National Security Act, 1980, empowers the appropriate Government to regulate the place and conditions of detention, including maintenance, discipline and punishment for breaches of discipline, and to remove a person from one place of detention to another, whether within the same State or in another State, with the consent of the receiving State. Article 22(3) of the Constitution of India provides that the safeguards in Article 22(1) and Article 22(2) shall not apply to any person who is an enemy alien or who is arrested or detained under any law providing for preventive detention. Consequently, the procedural safeguards available to ordinary detainees are not available under preventive detention statutes., The High Court of Rajasthan in State of Rajasthan and Others v. Shamsher Singh quashed a detention order but directed that the detainee be placed under house arrest or in a place such as a Dak Bungalow or Circuit House with his family members. The Court allowed the appeal of the State, finding that the requirements of law in relation to detention had been complied with and that the detention was wrongly quashed. In A.K. Roy and Others v. Union of India, a Constitution Bench dealt with the issue of preventive detention and house arrest. The Court observed that Section 5 makes every person subject to a detention order liable to be detained in a place and under conditions specified by the Government, and that such provisions must not become a back‑door to introduce punitive measures. The Court emphasized that detention without trial should be limited to what is minimally necessary for the interest of the country and the community, and that a detainee should ordinarily be kept in a place within the environs of his ordinary residence. Transfer to a far‑off place should be an exception, not a general rule, to avoid punitive effects and to allow family visits and access to personal facilities., Thus, house arrest has been resorted to in India in the context of preventive detention statutes. Preventive detention is itself a form of forced detention, and house arrest constitutes custody and forced detention. Whether such detention would qualify as custody under Section 167 of the Criminal Procedure Code will be considered when discussing the provision relating to set‑off under Section 428 of the Criminal Procedure Code., The National Crime Records Bureau’s 2019 executive summary reports that the total number of prisons in India increased from 1,339 in 2018 to 1,350 in 2019, a rise of 0.82 %. The 1,350 prisons consist of 617 Sub Jails, 410 District Jails, 144 Central Jails, 86 Open Jails, 41 Special Jails, 31 Women’s Jails, 19 Borstal Schools and 2 other types of jails. Rajasthan reported the highest number of jails (144), followed by Tamil Nadu (141), Madhya Pradesh (131), Andhra Pradesh (106), Karnataka (104) and Odisha (91), together accounting for 53.11 % of total jails. Delhi reported the highest number of Central Jails (14). Uttar Pradesh reported the highest number of District Jails (62). Tamil Nadu reported the highest number of Sub‑jails (96). Only fifteen States/UTs have Women’s Jails (31 in total) with a combined capacity of 6,511 inmates., The actual capacity of prisons increased from 396,223 in 2018 to 403,739 in 2019, a growth of 1.90 %. The number of prisoners rose from 466,084 in 2018 to 478,600 in 2019, an increase of 2.69 %. The overall occupancy rate rose from 117.6 % in 2018 to 118.5 % in 2019. Central Jails had the highest capacity (177,618 inmates) and housed the largest number of inmates (220,021). District Jails followed with a capacity of 158,986 and 206,217 inmates, while Sub Jails had a capacity of 45,071 and housed 38,030 inmates. Women’s Jails had a capacity of 6,511 and housed 3,652 inmates, with an occupancy rate of 56.1 %. Uttar Pradesh reported the highest prison capacity (60,340 inmates in 72 jails, 14.95 % of total capacity) and the highest number of prisoners (101,297, 21.2 % of total). The budget for the financial year 2019‑20 for all prisons in the country was ₹ 6,818.1 crore, of which ₹ 5,958.3 crore (87.39 %) was actually spent. A total of ₹ 2,060.96 crore was spent on inmates, representing 34.59 % of total annual expenditure.
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Almost 47.9 percent (986.18 Crore Rupees) of total expenses on inmates were spent on food, followed by 4.3 percent (89.48 Crore Rupees) on medical matters, 1.0 percent (20.27 Crore Rupees) on welfare activities, 1.1 percent (22.56 Crore Rupees) on clothing and 1.2 percent (24.20 Crore Rupees) on vocational/educational trainings. Among all the States and Union Territories, Haryana spent the highest share of expenditure on inmates (100.0 percent, 272.62 Crore Rupees) followed by Andhra Pradesh (88.1 percent, 152.24 Crore Rupees) and Delhi (66.2 percent, 310.02 Crore Rupees) during the financial year 2019-20. Of the 1,350 prisons, 269 were renovated or expanded during 2019 and 808 had video conference facilities as on 31 December 2019. A total of 33,537 quarters were available against the actual staff strength of 60,787 as on 31 December 2019., According to data published by the National Crime Records Bureau, there were 1,350 prisons in 2019, comprising 617 sub‑jails, 410 district jails, 144 central jails, 86 open jails, 41 special jails, 31 women’s jails, 19 borstal schools and 2 other types of jails. The occupancy rate climbed to 118.5 percent on 31 December 2019. In 2019, 1,886,092 inmates were admitted to jails and 478,600 prisoners were in custody on 31 December 2019 after accounting for those who were bailed out. Under‑trial prisoners numbered 330,487, constituting 69.05 percent of the total prisoners. Delhi had the highest occupancy rate of 174.9 percent, followed by Uttar Pradesh at 167.9 percent, meaning a prison designed for 100 persons was accommodating 174 persons., There is a tremendous amount of overcrowding in jails in India. A very large sum of Rupees 6,818.1 crore was the budget for prisons, both aspects being relevant in the context of the possibilities that house arrest offers., In the context of the rights conferred on citizens under Article 19, which are constitutional freedoms explained by the Supreme Court of India in Maneka Gandhi vs. Union of India, when a citizen is placed on house arrest, the deprivation of freedom amounts to custody and infringes fundamental freedoms unless such freedoms are specifically protected. A person has a fundamental right to move anywhere in the country. Personal liberty is the most important value recognized under the Constitution and must be jealously guarded, save where such intrusion has clear sanction of law. The expression ‘procedure established by law’ has received an expansive exposition in decisions of the Supreme Court of India commencing from Maneka Gandhi. Right to personal liberty is a birth right of every human being. Article 21 guarantees this right to citizens and non‑citizens alike. The core of personal liberty includes freedom against compelled living in forced custody., The concept of negative liberty, as articulated by Isaiah Berlin in his lecture ‘Two Concepts of Liberty’, states that a person is free to the degree that no human being interferes with his activity. Political liberty is the area within which a man can do what he wants; coercion occurs when another person deliberately interferes with that area. Mere incapacity, such as inability to jump ten feet, does not constitute coercion. Economic freedom and its counterpart, economic slavery, are discussed in terms of social and economic theory. The criterion of oppression is the part played by other human beings in frustrating one’s wishes., Personal liberty is interlinked with the right to life itself. The right to life and personal liberty are inseparable, based on the principle that fundamental rights must be treated equally and no state can deprive a person of these rights except with a legitimate sanction of law. The Supreme Court of India would lean in favour of upholding this precious, inalienable and immutable value., In the United States, house arrest ordinarily follows a conviction and is a choice available to the courts as an alternative to a jail sentence., Senior counsel Kapil Sibal argued that no court, even the High Court, has inherent power to deprive any person of personal liberty by placing him under house arrest. Placing a person in custody that deprives him of fundamental rights would be an illegal exercise, unless the High Court is exercising powers available under Section 167 of the Criminal Procedure Code., In State represented by Inspector of Police and others vs. N.M.T. Joy Immaculate, a bench of three learned judges considered the maintainability of a revision under Section 397 of the Criminal Procedure Code against an order of remand. Section 167 of the Criminal Procedure Code empowers a Judicial Magistrate to authorise detention of an accused in police custody. Section 209 confers power upon a magistrate to remand an accused to custody until the case is committed to the Court of Session and until the conclusion of the trial. Section 309 confers power upon a court to remand an accused after taking cognisance of an offence or during the commencement of trial. An order of remand has no bearing on the trial proceedings and cannot affect the ultimate decision of the case. If an order of remand is illegal, it cannot result in acquittal or termination of proceedings. Applying the test laid down in Madhu Limaye case [(1977) 4 Supreme Court Cases 551], the order is a pure interlocutory order and, in view of the bar created by subsection (2) of Section 397, a revision against the order dated 6‑11‑2001 of the Metropolitan Magistrate granting police custody for one day is not maintainable., Thus, an order under Section 167 is purely an interlocutory order and no revision is maintainable. A petition under Section 482 of the Criminal Procedure Code cannot be ruled out. When a person arrested in a non‑bailable offence is in custody, a court other than the High Court or Court of Session can release him on bail under Section 437 of the Criminal Procedure Code. Section 439 deals with special powers of the High Court and Court of Session to grant bail to a person in custody and to set aside or modify any condition in an order by a magistrate., In Central Bureau of Investigation, Special Investigation Cell v. Anupam J. Kulkarni, the object and scope of Section 167 were explained. Section 167 is supplementary to Section 57, which requires that an investigation be completed within 24 hours; if not, the arrested person must be brought before a magistrate as provided under Section 167. The law does not authorise a police officer to detain an arrested person for more than 24 hours exclusive of the time necessary for the journey to the magistrate’s court. Sub‑section (1) of Section 167 covers this procedure and requires the police officer to forward a copy of the diary entries to the magistrate. The magistrate may release the accused on bail if satisfied that no grounds exist for further remand; otherwise, further remand may be ordered., Ordinarily, when the court considers a request for remand there is an application for bail. It is for the court to grant bail; failing that, an order of remand follows. While the remand report is considered by the magistrate, the bail application may be moved under Section 439 instead of Section 437. An application under Section 397 would not lie against the remand, but bail would lie under Section 439. The additional restrictions under Section 43(D)(5) of the Unlawful Activities (Prevention) Act are applicable to citizens of India in cases under that law., A Habeas Corpus petition seeks redress for illegal detention and is an expeditious remedy as liberty is at stake. Whether a Habeas Corpus petition lies when a person is remanded to judicial or police custody is not res integra. In Manubhai Ratilal Patel v. State of Gujarat, the court held that directing remand of an accused is a judicial function and the magistrate must satisfy himself that reasonable grounds exist for custody. The purpose of remand under Section 167 is that investigation cannot be completed within 24 hours, and the magistrate must examine the case diary before ordering remand. A writ of habeas corpus is not to be entertained when a person is committed to custody by a competent court unless the order is prima facie without jurisdiction, absolutely mechanical, or wholly illegal, as stated in B. Ramachandra Rao [(1972) 3 Supreme Court Cases 256] and Kanu Sanyal [(1974) 4 Supreme Court Cases 141]., Justice U.U. Lalit, speaking for a bench of two in Serious Fraud Investigation Office and Others vs. Rahul Modi and Others, held that the act of directing remand of an accused is a judicial function and the challenge to the order of remand is not to be entertained in a Habeas Corpus petition. The law is clear that in Habeas Corpus proceedings a court must consider the legality of the detention at the time of the return, not with reference to the institution of the proceedings., Therefore, a Habeas Corpus petition will lie only if the remand is absolutely illegal, suffers from lack of jurisdiction, or is passed in an absolutely mechanical manner. In all other situations, a Habeas Corpus petition will not lie., One contention is that the order passed by the High Court of Delhi is not under Section 167 of the Criminal Procedure Code because Section 167 contemplates an order passed by a magistrate. The question is whether a court other than a magistrate can order remand under Section 167. The words of Section 167 refer to a magistrate’s order under subsection (2)., Consider a case where a magistrate orders remand under Section 167 and rejects the bail application. The accused approaches the High Court of Delhi under Section 439, which reverses the order and grants bail. The accused is released, but the Apex Court later reverses the High Court’s order, reviving the magistrate’s original order and sending the accused back to custody. Assuming the statutory period of 90 days for default bail is reached by piecing together broken periods of custody, the question is whether the Apex Court’s order should be counted for calculating the 90‑day period. The fact that the Apex Court exercised the power to remand does not detract from the custody being authorized under Section 167., In another example, after ordering remand for 15 days (10 days police custody and 5 days judicial custody), the magistrate enlarges bail. The High Court of Delhi interferes and cancels the bail, putting the accused back into custody. The order granting custody by the High Court cannot be treated as one not anchored in Section 167. Although the power to order remand resides with the magistrate, superior courts, including the High Court of Delhi, may exercise this power, and such custody counts for the purpose of calculating the period for filing a charge sheet, leading to the right of default bail., Thus, while ordinarily the magistrate is the original court exercising power to remand under Section 167, the exercise of power by superior courts that results in police or judicial custody also falls within Section 167 for the purpose of calculating the period for filing a charge sheet and for default bail. Observations of the Supreme Court of India in AIR 1962 SC 1506 support that broken periods of custody, whether ordered by a magistrate or a superior court, can be aggregated to reach the requisite period for default bail., The respondent contends that a transit remand order is not a remand for detention under Section 167 but only for production, relying on Section 57, which mandates production of an arrested person within 24 hours excluding journey time. The appellant argues that Section 167 specifically covers cases where a judicial magistrate, lacking jurisdiction to try the case, can order remand, and there is no other provision for transit remand., In this case the transit remand was ordered on 28 August 2018, with production before the magistrate in Pune scheduled for 30 August 2018. Under Section 48 of the Criminal Procedure Code, a person may be arrested by a police officer anywhere in India. Section 56 requires that a person arrested without warrant be sent before the magistrate having jurisdiction or before the officer in charge of a police station. Section 57 forbids detention beyond 24 hours exclusive of journey time., The magistrate referred to in Section 57 is the magistrate competent to try the case. Section 57 contains the peremptory limit of 24 hours exclusive of journey time in the absence of a special order under Section 167. The words ‘special order’ are not found in Section 167, so it could be said that without Section 167, detention violating Section 57 would be illegal. The nature of custody under a special order of Section 167 is police custody., The High Court of Delhi findings state that at the stage of transit remand the concerned magistrate need only be satisfied that an offence is made out and that the police officer seeking remand is authorized. When a person arrested is to be produced before a jurisdictional judicial magistrate but cannot be produced within 24 hours, he is produced before the nearest judicial magistrate together with a copy of the diary entries. Under Section 167(1) the nearest magistrate may pass an order authorising detention for a term not exceeding 15 days. If the magistrate has no jurisdiction to try the case and finds further detention unnecessary, he may forward the accused to the jurisdictional magistrate., The submission of the State of Maharashtra that once a person is in judicial custody a writ of habeas corpus would not lie was also rejected. The question remains whether transit remand results in police custody or judicial custody. It is police custody, as the police are entrusted with producing the accused before the magistrate. Interrogation of the accused during transit would be permissible only if it falls within police custody, and the clock for default bail starts from the order granting transit remand., The interplay of Section 57 and Section 167 was considered in the judgment of this Court in Chaganti Satyanarayana. Sub‑section (1) of Section 57 is a mandatory provision governing what a police officer should do when a person is arrested and detained, and it appears that investigation cannot be completed within the 24‑hour period fixed by Section 57. Sub‑section (2) of Section 167 pertains to the powers of remand available to a magistrate and the manner in which such powers should be exercised. Sub‑section (1) of Section 167 must be read in conjunction with Section 57. Section 57 interdicts a police officer from keeping a person in custody for longer than 24 hours without production before a magistrate, subject to the exception for journey time. Therefore, a police officer may keep an arrested person in custody for a maximum of 24 hours for investigation, and the powers of remand become exercisable only after the accused is produced before the magistrate.
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This sub‑section empowers the magistrate before whom an accused is produced for the purpose of remand, whether he has jurisdiction or not to try the case, to order the detention of the accused, either in police custody or in judicial custody, for a term not exceeding fifteen days in the whole. We would hold that a remand order, be it a transit remand order passed under Section 167 of the Code of Criminal Procedure, although it may be for the production of the appellant, involves authorising continued detention within the meaning of Section 167., Section 428 of the Code of Criminal Procedure reads as follows: ‘Period of detention undergone by the accused to be set off against the sentence of imprisonment. Where an accused person has, on conviction, been sentenced to imprisonment for a term, not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him. Provided that in cases referred to in Section 433‑A, such period of detention shall be set off against the period of fourteen years referred to in that section.’, If house arrest as ordered in this case is to be treated as custody within the meaning of Section 167 of the Code of Criminal Procedure, would it not entail the period of house arrest being treated as part of the detention within the meaning of Section 428 in case there is a conviction followed by a sentence?, The provisions of Section 428 throw light on the issues we are called upon to decide. Section 428 enables a person convicted to have the period of detention which he has undergone during the investigation, enquiry or trial set off against the term of imprisonment., In this context, we may notice the judgment of this Supreme Court reported in *Government of Andhra Pradesh and another v. Anne Venkateswara Rao*. In that case the appellant had been detained under the Preventive Detention Act on 18‑12‑1969, produced before the magistrate in April 1970 in connection with certain offences after his release from preventive detention, and later convicted. The Supreme Court held that the expression ‘period of detention’ in Section 428 includes detention under the Preventive Detention Act or the Maintenance of Internal Security Act only if it occurs during the investigation, inquiry or trial of the same case in which the accused is convicted. Consequently, the period of preventive detention could not be set off against the term of imprisonment imposed on the appellant., We may also notice that in *Ajmer Singh and others v. Union of India* the Court dealt with the question of whether the benefit of Section 428 of the Code of Criminal Procedure was available to a person convicted and sentenced by court‑martial under the Army Act. The Court held that the benefit is not available because there is no investigation conducted by a police officer or any person authorised by a magistrate in such cases., There is a scheme unravelled by the Code regarding detention of an accused. The starting point is the arrest and detention of the person in connection with a cognizable offence by a police officer without a warrant. The officer may detain and question the person during the investigation but cannot detain the accused beyond twenty‑four hours, excluding the time taken for the journey from the place of arrest to the place where the magistrate competent to try the case sits. If the officer cannot produce the accused and the investigation is incomplete, the officer is duty‑bound to produce the arrested person before the nearest magistrate, who may or may not have jurisdiction. The magistrate may order continued detention of the arrested person based on a request for remand, relying on entries in the case diary and being satisfied of the need for such remand. The magistrate can order police custody during the first fifteen days (in cases under the Unlawful Activities (Prevention) Act, the first thirty days). Beyond such period, the magistrate may direct detention described as judicial custody or any other custody he thinks fit. It is open to a magistrate to refuse police custody completely during the first fifteen days, to give police custody in instalments, or to release the arrested person on bail., The arrested person, if detained during the period of investigation, can count this period under Section 428 of the Code of Criminal Procedure when he is ultimately charged, tried and convicted. We are not concerned with custody of the accused during the period of an inquiry or trial, which is governed essentially by Section 309 of the Code of Criminal Procedure. Not every detention can be relied upon for the benefit of set‑off under Section 428; a period spent under an order of preventive detention, not in connection with the investigation into an offence, cannot be counted (see All India Reporter 1977 SC 1096)., Detention pursuant to proceedings under the Army Act does not count. Thus, detention during investigation under Section 428 is integrally connected with detention as ordered under Section 167., The scheme under Section 167 is that custody authorised under such provisions, if it exceeds the maximum period without the charge‑sheet being filed, entitles the person in detention to be released on default bail. In fact, the person may languish in custody because of inability to obtain bail, but he is undoubtedly entitled to count the entire period he has spent in detention under orders of the magistrate or superior court exercising powers under Section 167 for the purpose of set‑off under Section 428., It is necessary to make one aspect clear. An order purporting to remand a person under Section 167, if made without complying with the mandatory requirements thereunder, results in actual custody. The period of custody will count towards default bail. Section 167(3) mandates that reasons be recorded if police custody is ordered; there has to be an application of mind. Even if there is complete non‑application of mind or reasons are not recorded, rendering the exercise illegal and liable to be interfered with, the actual detention undergone under the order will certainly count towards default bail. Likewise, unlike the previous Code (1898), the present Code mandates the production of the accused before the magistrate as provided in clause (b) of the proviso to Section 167(2). Custody ordered without complying with that provision may be illegal, but the actual custody undergone will again count towards default bail., Take another example. The magistrate gives police custody for fifteen days but after the first fifteen days (not in a case covered by the Unlawful Activities (Prevention) Act) it is not challenged. Actual custody is undergone. Undoubtedly it will count. The power was illegally exercised but is nonetheless purportedly under Section 167. What matters is the detention suffered. The view taken in the impugned judgment that, sans any valid authorisation or order of the magistrate detaining the appellant, there cannot be custody for the purpose of Section 167 does not appear to us to be correct. The finding that any illegality afflicts the authorisation and therefore renders the detention unauthorised is inconsistent with our conclusion., Therefore, if the Supreme Court of India purports to invoke and act under Section 167, the detention will qualify even if there is illegality in the passing of the order. What matters in such cases is the actual custody., However, when the court does not purport to act under Section 167, then the detention involved pursuant to the order of the court cannot qualify as detention under Section 167., We must squarely deal with the question as to whether house arrest as ordered by the Delhi High Court amounts to custody within the meaning of Section 167 of the Code of Criminal Procedure. Undoubtedly, custody in that provision is ordinarily understood as police custody and judicial custody. The period of custody begins not from the time of arrest but from the time the accused is first remanded (see 1986 (3) SCC 141). Police custody can, in a case falling under the Code of Criminal Procedure (not under the Unlawful Activities (Prevention) Act), be given only during the first fifteen days (1992 3 SCC 141). The last proviso to Section 167(2) provides that for a woman under eighteen years of age, detention shall be authorised in the custody of a remand home or recognised social institution., The distinction between police custody and judicial custody is as follows: when a person is remanded to police custody, he passes into the exclusive custody of the police officers, and custodial interrogation is indispensable to unearth the truth. The magistrate must be convinced about the need for remand to such custody and must record reasons. Judicial custody is ordinarily custody in a jail, also referred to as jail custody. Jails come under the Department of Jails and are staffed by its employees. The person in jail custody is therefore indirectly, through the jail authorities, under the custody of the court. The police officer does not have access to a person in judicial custody unless permission is sought and obtained, subject to conditions placed by the court. Instead of ordering a remand, a person can be released on bail, subject to the facts of each case and any statutory restrictions. If bail is not granted, a person arrested by the police in connection with a cognizable offence must be remanded to custody, which is inevitable from the reading of Section 167 of the Code of Criminal Procedure., In In re M.R. Venkataraman and Others (AIR 1948 Mad 100), a petition seeking a writ of habeas corpus was filed on the ground that the petitioners were remanded to a central jail of a district other than the one in which they were being tried. The Supreme Court of India held that no illegality or irregularity was committed. Section 167 empowers a magistrate having jurisdiction to remand a prisoner to such custody as he thinks fit. Section 344 does not use the words ‘as he thinks fit’ with regard to the order of remand, but there is nothing in the section which suggests that after a charge‑sheet has been filed, the magistrate does not have the same freedom with regard to the custody to which he commits the accused as he had before a charge‑sheet was filed., The concept of house arrest, though familiar in the law relating to preventive detention, has different underpinnings. House arrest in preventive detention is permitted under the law itself and such orders are made by the executive. Detention under Section 167 would not embrace preventive detention in the form of house arrest, as noted in the discussion relating to the impact of Section 428 of the Code of Criminal Procedure., However, taking the ingredients of house arrest present in the order passed by the Delhi High Court on 28‑08‑2018, if it is found to be one passed under Section 167, then it would be detention thereunder. The order imposed a complete prohibition on the appellant stepping out of his premises, an injunction against interacting with persons other than ordinary residents, and a guard whose role was to enforce the condition rather than to protect the appellant. This places the appellant under judicial custody. Section 167 speaks of such custody as it thinks fit. If it is found ordered under Section 167 it will count., The impugned judgment of the Delhi High Court denied default bail on the following grounds: (1) the transit remand order was stayed by the Delhi High Court on 28‑10‑2018; (2) the appellant was placed under house arrest pursuant to the directions of the Delhi High Court during which period the investigating officer did not get the opportunity of interrogating him; (3) the Delhi High Court quashed the appellant’s arrest holding that the detention was illegal; (4) following the declaration of illegality, the appellant was set at liberty, not on bail, but protected by an order restraining the investigating agency from taking coercive steps during the pendency of the appellant’s challenge to the FIR; (5) the Supreme Court of India, having dismissed the appellant’s challenge to quash the FIR, granted four weeks’ protection with liberty to seek pre‑arrest bail before the Sessions Court, and later the appellant surrendered to the National Investigation Agency, Delhi on 14‑04‑2020, after which the magistrate authorised police custody and the appellant was interrogated. The Court further held that the transit remand was granted on 28‑08‑2018, stayed by an interim order of the Delhi High Court, and finally set aside, thereby rendering the period of house arrest from 28‑08‑2018 to 01‑10‑2018 illegal. In the absence of an authorised detention by an order of a magistrate, the appellant cannot claim entitlement to statutory default bail under Sub‑section (2) of Section 167. The Court could not fathom a situation where detention, though illegal and unauthorised, would still be construed as authorised for the purpose of Sub‑section (2) of Section 167. Consequently, the period from 28‑08‑2018 to 01‑10‑2018 has to be excluded from computing the period of ninety days, as that custody has been held unsustainable in law by the Delhi High Court., The Delhi High Court, in its judgment dated 01‑10‑2018, found that the order of remand was illegal as there was a violation of Article 22(1) of the Constitution of India. Article 22(1) creates a fundamental right for a person arrested to be informed as soon as possible of the grounds of arrest and to consult and be defended by a legal practitioner of his choice. Detention follows arrest, and Article 22(1) is concerned with the legality of detention, not the arrest itself., Regarding the non‑fulfilment of the conditions under Article 22(1) and the duty of a magistrate exercising power to remand, we notice the judgment of this Supreme Court rendered by a bench of three learned judges in The matter of Madhu Limaye and Others. In that case the petitioners were arrested for an offence under Section 188 of the Indian Penal Code, which is non‑cognizable. The officers did not give the arrested persons the reasons for their arrest or information about the offences. The magistrate offered bail, but on the petitioners refusing to furnish bail, the magistrate remanded them to custody. The proceeding before the Supreme Court was under Article 32. It was contended that the arrests were illegal because they were for non‑cognizable offences and that Article 22(1) was violated. The Court held that once it is shown that the arrests made by the police officers were illegal, the State must establish that at the stage of remand the magistrate directed detention in jail custody after applying his mind to all relevant matters. The remand orders were found to be routine and mechanically made, and the Court disposed of the third contention of Madhu Limaye., In Arnesh Kumar vs. State of Bihar the Supreme Court, taking note of indiscriminate arrests, issued certain directions. Before a magistrate authorises detention under Section 167 of the Code of Criminal Procedure, he must first be satisfied that the arrest made is legal and in accordance with law and that all constitutional rights of the person arrested are satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, the magistrate is duty‑bound not to authorise further detention and must release the accused. When an accused is produced before the magistrate, the police officer effecting the arrest is required to furnish to the magistrate the facts, reasons and conclusions for the arrest, and the magistrate must be satisfied that the condition precedent for arrest under Section 41 has been satisfied before authorising detention., The magistrate, before authorising detention, will record his own satisfaction, perhaps in brief, but the satisfaction must be reflected in his order. It shall never be based merely upon the ipse dixit of the police officer. The police officer shall furnish the facts, reasons and materials on the basis of which he reached his conclusion, and those shall be perused by the magistrate while authorising detention. Only after recording his satisfaction in writing will the magistrate authorise the detention of the accused., There is no absolute taboo against an order of remand being challenged in a habeas corpus petition. If the remand is absolutely illegal or afflicted with lack of jurisdiction, such a writ would lie. If it is established that the order of remand is passed in an absolutely mechanical manner, the writ would also lie. In such cases the person would be in custody pursuant to the remand ordinarily. Consider a scenario where police custody is ordered by the magistrate, and an interim order of the High Court provides for judicial custody after the accused has undergone police custody for five days. Finally, the writ petition is dismissed. The question is whether the period of judicial custody will be excluded from the period undergone for the purpose of grant of default bail. Another pertinent question is whether Section 167 of the Code of Criminal Procedure is applicable in writ proceedings. If a writ petition is not a criminal proceeding, does Section 167 apply or does the provision apply only to proceedings which arise under the Code? In the example, if we hold that irrespective of facts which otherwise justified including the period of jail custody as part of the custody under Section 167, it will not be reckoned, it may produce anomalous and unjust results. We expatiate as follows: In the example, the High Court does not stay the investigation. The petitioner who has been in police custody is made over to judicial custody by the interim order of the High Court. The High Court also applies its mind and finds that no case is made out for continuing the petitioner in police custody and then passes the order to continue the petitioner in judicial custody. Finally, the writ petition is dismissed. In such a case where there is no stay of investigation and the police custody was obtained and thereafter the High Court, after looking into the records, also finds that the petitioner should only be continued in the modified form of remand, the custody undergone under an order of the court, being also during the investigation which is not stayed, ought to be counted., Now though the Code of Criminal Procedure will not apply to a writ petition, what is required to include custody under Section 167 is that the detention be brought about by the court ordering it during the investigation into an offence. It is a matter which will turn on the facts., The crucial question to be answered is whether the Delhi High Court was exercising power under Section 167 when it ordered house arrest. The proceeding in the Delhi High Court was a writ petition. At the time the writ petition was filed, the relief sought was that a writ of habeas corpus be issued to set the appellant at liberty and that the appellant may not be arrested without prior notice to enable him to seek appropriate remedies. The prayer that the appellant may not be arrested does not go hand in hand with Section 167 of the Code of Criminal Procedure, because the power under Section 167 is invoked only after there has been an arrest and what is sought is the extension of the detention of the person arrested., Though this was the position when the writ petition was filed, by the time the writ petition came up for consideration at 2:45 p.m. on 28‑08‑2018, the appellant was arrested at 2:15 p.m. The Court initially at 2:45 p.m. passed the following order: 1. The petition complains of the petitioner and his companion being restrained in his house by the Maharashtra Police pursuant to FIR No. 4/2018, registered at Police Station Vishrambagh, Pune. 2. Notice. The learned standing counsel for the State of NCT of Delhi appeared and accepted notice. 3. The Court was informed by the petitioner's counsel that the petitioner was being taken away from his house and that no further precipitate action of removing the petitioner from Delhi should be taken till the matter is taken up again at 4 p.m., It would appear that, in the meantime, the appellant was produced before the magistrate who passed the transit remand order. When the matter was taken up for consideration at 4 p.m. and on noticing the transit remand order dated 28‑08‑2018, the order inter alia ordering house arrest was passed. Therefore, at the time (4 p.m.) when the order was passed, the Court was dealing with the matter when the appellant stood arrested and also remanded by way of the transit remand order., One way to look at the matter is to recall the contents of the order dated 28‑08‑2018. The Court noted that the documents produced before the learned Chief Metropolitan Magistrate, most of which (including FIR No. 4 of 2018 registered at Police Station Vishrambagh, Pune) were in Marathi language and only the application filed for transit remand before the learned Chief Metropolitan Magistrate was in Hindi. However, it was not possible to make out from these documents what precisely the case against the petitioner was., The Court further directed that translations of all the documents be provided to the Court on the next date. The direction to supply the translation could not be complied with, as evident from the order dated 29‑08‑2018., Finally, paragraphs 18 and 19 of the order dated 29‑08‑2018 state: The Supreme Court has, in the said petition, passed an interim order staying the transit remand orders, including the one passed by the Chief Metropolitan Magistrate in respect of the petitioner, and has ordered that all those who have been arrested, including the petitioner, shall continue under house arrest. In view of the above development, it would not be appropriate for this Court to continue considering the validity of the transit remand order passed by the learned Chief Metropolitan Magistrate. The Court considered it appropriate to list the matter for the next day.
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The matter was listed on 30 August 2018 at 2:15 p.m. On the next day, 30 August 2018, the Delhi High Court passed a further order. The order recites that the Delhi High Court was in the process of pronouncing an order on the validity of the transit remand and consequently on the validity of the arrest of the appellant. It is further stated that the Delhi High Court was informed by counsel for the State of Maharashtra that an interim order continuing the house arrest of the appellant and some other similarly situated persons had been passed. It is specifically recorded that the dictation of the order was then halted in order to peruse the order passed by the Supreme Court of India. Thereafter, it is stated that as the Supreme Court of India, as per the interim order, extended the house arrest of the appellant, the Delhi High Court did not consider it appropriate to proceed with the matter. Orders of the Supreme Court of India were awaited., The matter was further adjourned. Subsequently, the Delhi High Court pronounced the judgment on 28 September 2018 and finally the judgment was pronounced on 1 October 2018 by the Delhi High Court. The writ petition was listed for hearing at 2:15 p.m. before the Delhi High Court. The Supreme Court of India, in paragraph 7 of the majority judgment, notes that the petitioner filed the present petition on 28 August 2018 challenging the transit remand order passed by the Chief Metropolitan Magistrate on 28 August 2018. It is required to note that although when the writ petition was originally filed the ground of challenge was that the arrest of the petitioner was in violation of Sections 165 and 166 of the Code of Criminal Procedure, during the course of arguments on 28 August 2018, in light of subsequent developments, the challenge was laid to the remand order of the learned Chief Metropolitan Magistrate. It was further contended that there had been a violation of the mandatory provision contained in Section 115 of the Code of Criminal Procedure., The Delhi High Court found that the writ petition was maintainable as it was entertained at a time when the transit remand order had not been passed. The Delhi High Court further found violations of Articles 22(1) and 22(2) of the Constitution, Section 167 read with Section 57, and Section 41(1)(ba) of the Code of Criminal Procedure. The remand order was set aside. The continued detention beyond 24 hours of the arrest of the appellant, in the absence of the remand order which had been set aside, was found untenable. Consequently, the house arrest of the appellant was pronounced as having come to an end., It has been found that the superior courts, including the Delhi High Court, can exercise power under Section 167 of the Code of Criminal Procedure. The finding of the Delhi High Court in the impugned judgment that only a magistrate can order remand does not appear to be correct., Undoubtedly, as pointed out by the appellant, he was detained on the basis of an arrest carried out by a police officer from the State of Maharashtra in connection with FIR No. 84 of 2018 disclosing the commission of cognizable offences. The arrest was effected in view of the powers available under Section 48 of the Code of Criminal Procedure. Finding that an order under Section 167 was required to produce the appellant before the competent court in Maharashtra, the appellant was produced in person before the nearest magistrate in Delhi, and the magistrate passed an order which is found to be an order of remand under Section 167. The Delhi High Court became concerned with the validity of the remand order and the detention of the appellant. A writ of habeas corpus lies in certain exceptional cases for challenging orders of remand. If there is non‑compliance with Article 22(1) of the Constitution and the person is detained, that aspect must be borne in mind by the magistrate when ordering remand. Detention is the result of an arrest, and Article 22(1) applies at this stage after arrest. If fundamental rights are violated in the matter of continued detention, the magistrate is not expected to be oblivious to it. In this sense, the Delhi High Court found a violation of Article 22(1) inter alia and held that the magistrate’s overlooking rendered the transit remand illegal. Regarding the arrest being made in violation of Section 41(1)(ba) of the Code of Criminal Procedure, it relates to the legality of the arrest itself, which precedes detention. The Delhi High Court finds that the magistrate had not applied his mind to whether the arrest complied with Section 41(1)(ba) of the Code of Criminal Procedure., This is unlike the decision in Madhu Limaye, where the Delhi High Court found a violation of Article 22(1) and, even during the course of arguments before the Delhi High Court, could not explain why the arrested persons were not told the reasons for their arrest or the offences for which they had been taken into custody. In that case, one of the specific issues concerned the legality of the arrest on the ground that the offences were non‑cognizable and the arrest was illegally effected by the police officer, as well as a violation of Article 22(1)., The most serious contention raised by the respondent is to exclude the period of house arrest. The contention is that, having regard to the nature of the proceedings in the Delhi High Court during the period of house arrest, no investigation could be carried out. The very purpose of custody under Section 167 of the Code of Criminal Procedure is to enable the police to interrogate the accused, and if that opportunity is not present, such period of custody would not qualify for the purpose of Section 167. In other words, the argument is that the object and scheme of Section 167 is that an investigation is carried out with an opportunity to question the accused, and if it is not completed within the period of 90 days, the right to default bail arises. By the proceedings on 28 August 2018, when the petition was filed, the Delhi High Court stayed the transit remand and the appellant could not be taken to Maharashtra. By the same order, the Delhi High Court placed the appellant under house arrest. No access was provided to the investigating agencies to question the appellant. In such circumstances, the period undergone as house arrest should be excluded. It is appropriate to consider the allied argument, namely, the effect of the appellant surrendering on 14 April 2020, being produced on 15 April 2020 and being remanded to police custody in which he remained till 25 April 2020. The argument is that under the general law, i.e., the Code of Criminal Procedure without the modification effected under Section 43(D) of the Unlawful Activities (Prevention) Act, police custody can be sought and given only during the first 15 days; thereafter police custody cannot be given. In the case of the Unlawful Activities (Prevention) Act, in view of the modified application of the Code of Criminal Procedure under Section 43(D)(2), the period of 15 days is enhanced to 30 days. Thus, police custody by the magistrate can be given on production for a period of 30 days. The argument further runs that if it is on the basis of the appellant having surrendered on 14 April 2020 and, upon being produced before the court, he was remanded to police custody, the period of 90 days would begin to run only from the date of the remand, i.e., 15 April 2020. If the appellant’s contention that the period of remand commenced with the house arrest on 28 August 2018 is accepted, it would render the police custody given on 15 April 2020 impermissible. In this regard, the fact that the appellant did not object to the police custody being given on 15 April 2020 is emphasized. The appellant acquiesced in the police custody commencing from 15 April 2020. This is possible only on the basis that the period of 90 days would commence only on 15 April 2020 in terms of the law laid down in Chaganti Satyanarayana., The appellant submits that there is no requirement in law that a person must be granted police custody in all cases. Section 167 of the Code of Criminal Procedure confers a power on the magistrate to grant either police custody or judicial custody during the first 15 days in a case not covered by the Unlawful Activities (Prevention) Act. After the first period of 15 days, custody cannot be police custody, but there is no requirement that any police custody at all should be given. It is entirely within the discretion of the magistrate or the court to determine whether the custody should be police or judicial. Furthermore, it is contended that in this case the offences under the Unlawful Activities (Prevention) Act are the main offences. A period of 30 days is available for police custody. It is open to the investigator to seek police custody at any time. The appellant argues that a reading of the second proviso under Section 43(D)(2)(b) of the Unlawful Activities (Prevention) Act shows that, for the purpose of investigation, police custody can be sought at any time and is not limited by 30 days or 15 days. The appellant submits that the principle in Central Bureau of Investigation, Special Investigation Cell, that police custody is limited to the first 15 days of remand, does not apply. It is further contended that there was no stay of investigation and the police could have sought access to the appellant during the 30‑day period of interrogation or investigation but this was not done. The written submissions also contend that the second proviso to Section 43(D)(2) of the Unlawful Activities (Prevention) Act nullifies the judgment in Anupam Kulkarni in UAPA cases and custody can therefore be sought at any time even from judicial custody without the limit of the first 15 days or even 30 days. The requirement of an affidavit under the proviso arises only when custody is taken by the police from judicial custody. It was open to the investigating agency to file such an affidavit and seek such custody or permission to interrogate during the period of house arrest, which was not done. It is further contended that on 14 April 2020, the appellant surrendered before the National Investigation Agency, i.e., police custody. Therefore, when police custody was sought on 15 April 2020 and extended again on 21 April 2020, there was no transfer from judicial custody to police custody. Consequently, the police custody was not under the second proviso to Section 43(D)(2)(b), which explains why no affidavit as required was filed by the police. The appellant’s conduct of not objecting to the application seeking police custody cannot defeat the case for counting the period of 34 days of house arrest. The appellant was indeed in police custody on 28 August 2018 for the purpose of investigation. All his devices were seized by the investigating agency, which spent several hours at his house and restrained him from morning till 2:15 p.m. when they proceeded with him to the magistrate., The scheme of the law, i.e., the Code of Criminal Procedure, is that when a person is arrested without warrant in connection with a cognizable offence, investigation is expected to be completed within 24 hours of his arrest. If the investigation is not completed, the accused must be produced before the magistrate who is nearest to the place of arrest, irrespective of jurisdiction. The magistrate, on the basis of the entries in the case diary maintained by the officer, is expected to apply his mind and decide whether the accused is to be remanded. If the police make a request for police custody which is accepted, an order is to be passed and reasons are to be recorded under Section 167(3). Police custody is an important tool in appropriate cases to carry on an effective investigation. It includes questioning the accused with reference to the circumstances and obtaining, if possible, statements relevant to future prosecution. Custodial interrogation in some cases is a dire need to give the prosecution and therefore the courts a complete picture. The appellant’s contention that it is always open to the magistrate to order only judicial custody, even exclusively with 90 days of judicial custody alone, an application for default bail would lie, cannot be disputed. Whatever the nature of the custody, as long as it falls within the provisions of Section 167, if the requisite number of days are spent in police, judicial, or combined custody, that suffices., However, that may not mean applying the functional test or bearing in mind the object of the law that the purpose of obtaining police custody is lost sight of. According to the appellant, the period of house arrest is to be treated as judicial custody on the terms of the order dated 28 August 2018 as subsequently extended. Investigating officers could, undoubtedly, go to the house of the appellant and question him. It is true that if the Delhi High Court had been approached, it may have directed the appellant to cooperate with the officers in the investigation. This remains in the region of conjecture. The impact of this aspect will be further considered later., We must also consider the impact of the police custody, admittedly obtained on 15 April 2020. The order produced before us shows that police custody was sought for 10 days. Custodial interrogation was necessary, as pleaded, for analysing the retrieved electronic data and documents from the electronic devices recovered during the investigation., The special judge ordered remand for 7 days. Thereafter, a further period of 7 days of remand to police custody was granted by the order dated 21 April 2020. Still further, on 25 April 2020, the appellant was remanded in judicial custody, in which he continued. The question arises whether, assuming all else is answered in favour of the appellant, his case is inconsistent with the police remand initially granted for 7 days on 15 April 2020 and further extended on 21 April 2020, which was cut short on 25 April 2020. It should be noted that police custody can be given only for 15 days, and that too during the first 15 days, ordinarily. In the case of persons accused of offences under the Unlawful Activities (Prevention) Act, the maximum period of police custody is 30 days. If the appellant’s case is to be accepted, it must be consistent with the subsequent proceedings, namely, police custody by orders dated 15 April 2020 and 21 April 2020. In other words, Section 167 of the Code of Criminal Procedure, as modified by Section 43(D)(2) of the Unlawful Activities (Prevention) Act, contemplates that remand to police custody on production of the accused can be given only during the first 30 days from the date of production. The respondent argues that remand on production of the accused before the special judge took place only with the production of the accused on 15 April 2020. If the remand in the case of the appellant had taken place in 2018, it would be completely inconsistent with the remand to police custody well beyond the first 30 days., The appellant’s answer is that, apart from the period of 15 days being supplanted by 30 days under the Unlawful Activities (Prevention) Act, police custody can be sought and granted at any time in cases involving the Unlawful Activities (Prevention) Act. The appellant contends that this is possible under the second proviso contemplated in Section 43(D)(2)(b) of the Unlawful Activities (Prevention) Act. It is argued that, unlike cases generally covered by the Code of Criminal Procedure, police custody can be sought in UAPA cases at any time. However, it is also contended that an affidavit is required only if a person is in judicial custody and the investigator wants to obtain police custody in place of judicial custody. In this case, the appellant argues that there is no such affidavit because when police custody was sought on 15 April 2020, the appellant was not in judicial custody; he had surrendered on the previous day, 14 April 2020, before the National Investigation Agency. It is therefore necessary to resolve this controversy by determining whether the appellant’s claim that police custody can be sought at any time in UAPA cases is tenable., Section 43(D)(2) of the Unlawful Activities (Prevention) Act reads as follows: “(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub‑section (a) the references to fifteen days, ninety days and sixty days, wherever they occur, shall be construed as references to thirty days, ninety days and ninety days respectively; and (b) after the proviso, the following provisos shall be inserted, namely: Provided further that if it is not possible to complete the investigation within the said period of ninety days, the court may, if it is satisfied with the report of the public prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days. Provided also that if the police officer making the investigation under this Act requests, for the purposes of investigation, police custody from judicial custody of any person in judicial custody, he shall file an affidavit stating the reasons for doing so and shall also explain any delay in requesting such police custody.”, Under Section 43(D)(2)(a), it is clear that the maximum period of police custody permissible has been increased from 15 days to 30 days. The further relevant modification is incorporated in the second proviso, which contemplates that the investigating officer can, with reasons and an explanation of any delay, obtain police custody of a person who is in judicial custody., We consider the position under Section 167 as applicable in cases under the Unlawful Activities (Prevention) Act as follows: Undoubtedly, the period of 30 days is permissible for police custody. The court proceeds on the basis that the legislature is aware of the existing law when it amends it. In Anupam Kulkarni, it was held that under Section 167, which provides for 15 days as the maximum period of police custody, police custody can be given only during the first 15 days from the date of the remand by the magistrate. Beyond 15 days, remand can only be to judicial custody. Since the period has been increased to 30 days, the effect is that in UAPA cases, applying the principle declared in (1992) 3 SCC 141, the investigating officer can obtain police custody for a maximum period of 30 days, but it must be within the first 30 days of the remand. The increase concerns only the number of days; the principle that it should be the first 30 days has not been altered. Regarding the second proviso in Section 43(D)(2)(b), it brings about an alteration of the law as compared with Anupam Kulkarni. It is contemplated that a person who is remanded to judicial custody and the National Investigation Agency has not been given police custody during the first 30 days; on reasons given and an explanation of the delay, the court may grant police custody. The proviso changes the law to the extent that if a person is in judicial custody on the basis of the remand, then, on reasons and explanation of delay, it is open to the court to give police custody even beyond 30 days from the date of the first remand. Section 49(2) of the Prevention of Terrorism Act is pari materia and has been interpreted by the Supreme Court of India in AIR 2004 SC 3946; that decision does not advance the appellant’s case, although it involved police custody sought of a person in judicial custody beyond 30 days. In the present case, the appellant surrendered on 14 April 2020 and was not in judicial custody. He was produced with a remand report seeking police custody on 15 April 2020. Treating this as a remand sought within the first 30 days, a remand was ordered for a period of 7 days initially. There is no dispute that the period was police custody. An accused under the Unlawful Activities (Prevention) Act may be sent to judicial custody, police custody or granted bail. If the argument is that police custody can be sought at any time and is not limited to cases where there is judicial custody, it would contradict the clear terms of the proviso, and even a person who is bailed out could, after 30 days, be remanded to police custody. This is untenable. The appellant’s claim that the police custody granted on 15 April 2020 was permissible and consistent with his case does not appear to be correct., The Delhi High Court placed considerable reliance on the judgment reported in State of West Bengal v. Dinesh Dalmia and also on the submissions of the Additional Solicitor General, Shri Raju. In that case, the respondent was arrested in New Delhi and produced before the magistrate on transit remand in Chennai. The investigating officer, in matters in Calcutta, prayed for a production warrant before the court at Calcutta as the respondent was arrested and detained in the CBI case before the magistrate at Chennai. The prayer was allowed and the order was sent to the court at Chennai. A further order by the Calcutta court directed that the respondent should not be released in the CBI cases in Chennai. The respondent also learned that he was wanted in two more cases pending in Calcutta. He voluntarily surrendered before the magistrate in Chennai on the basis of the cases at Calcutta. The respondent stood remanded to judicial custody till 13 March 2006. After the procedures were undergone, the respondent was produced before the magistrate at Calcutta. The investigating officer in the Calcutta case sought police custody of 15 days. The respondent moved for bail contending that he had surrendered in the court at Chennai and the period of 15 days had elapsed from the date of surrender. The matter reached the Calcutta High Court against the order of the magistrate rejecting the bail application and ordering police custody. The Calcutta High Court, in the revision filed by the respondent, found that more than 90 days had expired from the time of detention, which should have been counted from 27 February 2006 when the respondent had surrendered before the court at Chennai. The question for consideration before the Supreme Court of India was whether the period of detention started from 27 February 2006 when the respondent had surrendered before the court at Chennai in connection with the CBI case or whether it should be counted from 13 March 2006 when the respondent was actually taken into custody by the police and produced before the magistrate at Calcutta. The Supreme Court of India held that the respondent, having voluntarily surrendered before the court at Chennai, could not be treated as being in detention under the cases registered at Calcutta., The present case involves only one FIR and one case. Following arrest and production before the magistrate, a remand was made which is now being questioned. The Delhi High Court ordered house arrest. The Delhi High Court entertained the writ petition on 28 August 2018 and intended to dispose of the matter on the very next day. The order of house arrest was passed in such circumstances, but custody continued for 34 days. The Delhi High Court was unable to go through the entries in the case diary because they were in Marathi. The court expressed inability to determine from the documents what precisely the case against the appellant was. Translations were to be made available the next day but were not. Nevertheless, house arrest was ordered until further orders on 28 August 2018. By the standards applicable to a magistrate acting under Section 167, the Delhi High Court did not purport to act under Section 167; this is distinct from saying it acted in violation of the mandate of law. There was no stay of investigation as such, but the transit remand was challenged. The FIR was lodged in another state, and interrogation of the appellant would be integral to the investigation. The terms imposed by the Delhi High Court regarding house arrest made such interrogation impossible. The parties apparently did not contemplate this. The appellant contends that the house arrest is a modification of the order of remand. The Delhi High Court stayed the transit, and when it passed the order of house arrest on 28 August 2018, it modified the remand from police custody to house arrest. The transit remand order of the Chief Metropolitan Magistrate, Saket, provided for police custody for two days, but on the basis of the house arrest ordered by the Delhi High Court, the appellant underwent house arrest for 34 days. By the judgment dated 1 October 2018, the Delhi High Court set aside the transit remand, finding the magistrate’s order illegal. Consequently, the Delhi High Court found detention beyond 24 hours to be impermissible. It is relevant that the Chief Metropolitan Magistrate, Saket, had not ordered detention beyond 30 August 2018; detention was ordered only for two days with the appellant to be produced on 30 August 2018. By the Delhi High Court’s order, the transit could not take effect, so the period after 30 August 2018 till 1 October 2018 is covered by the house arrest order. The house arrest covered the period from 28 August 2018 based on the Delhi High Court order. The arrest was effected at 2:15 p.m. on 28 August 2018; the magistrate’s order was passed within the next hour, and the Delhi High Court order was passed at about 4:30 p.m. The magistrate’s order originated the remand under Section 167 to police custody. The Delhi High Court found that without a valid remand order by the magistrate, the detention exceeded 24 hours, rendering it untenable, and consequently the house arrest came to an end on 1 October 2018. The Delhi High Court did not pronounce the house arrest as non est or illegal; rather, it held that it was valid from the time it was passed until 1 October 2018. If perceived as an order passed under Section 167, there would be no detention beyond 24 hours of the arrest that could be illegal. The illegality of the detention is based on the transit order being found illegal. If the transit order has been modified as claimed by the appellant, the detention would be lawful as the house arrest order was passed within 24 hours of the arrest. This highlights that the Delhi High Court did not contemplate that the house arrest order was passed as custody under Section 167. Although the foundational transit remand was set aside, the interim order would not survive, and the Delhi High Court should have understood it accordingly., Undoubtedly, the appellant was placed in police custody from 15 April 2020 to 25 April 2020. Even the enhanced period of 30 days of police custody permissible under Section 43(D)(2) of the Unlawful Activities (Prevention) Act must be acquired within the first 30 days of the remand. Proceeding on the basis of the appellant’s claim that the first remand took place on 28 August 2018, the appellant’s being in police custody for a period of 11 days in 2020 is inconsistent with the appellant’s case and the law.
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Though police custody can be had under the Unlawful Activities (Prevention) Act beyond the first 30 days under the Second Proviso to Section 43(D)(2), it is permissible only in a situation where the accused is in judicial custody. The appellant was, admittedly, not in judicial custody, having surrendered to the National Investigation Agency on 14.04.2020, which is on the eve of the first order directing police custody., One of the contentions raised by the respondent is that if the order of house arrest was passed under Section 167 of the Criminal Procedure Code then the Delhi High Court would have, after setting aside the transit remand, either released the appellant on bail or remanded him to custody. Instead, the Delhi High Court released the appellant on the basis that as the remand order was illegal and set aside, in view of Section 56 and Section 57 the detention beyond 24 hours cannot be sustained., Now in a proceeding under Section 167 where a remand order is put in issue before a superior court it presupposes an arrest in connection with a cognizable offence. If the remand is set aside by the superior court, we are of the view that in a proceeding which originated from a remand under Section 167, the order that would follow on setting aside the remand would be to grant bail or to modify the remand. This is for the reason that there is an arrest which in the first place sets the ball rolling. Therefore, he has either to be released on bail, if not, he would have to be remanded., It is here that we may remember the decision of this Supreme Court of India in (1969) 1 SCC 292. There was a remand. Violation of Article 22(1) was found in a writ petition under Article 32. It was, in fact, a non‑cognizable offence. The Court released the petitioners. The remand orders were found patently routine and were not such as would cure the constitutional infirmities. In the said case, arrest was put in issue and found bad in law., No doubt there is the filing of an application for anticipatory bail wherein the appellant has clearly projected the period of house arrest as protection of this liberty. It was also sought to be rested under the extraordinary power of this Supreme Court of India. We would observe that while his conduct is not irrelevant in appreciating the matter, the contours of personal liberty would better rest on a surer foundation. Estoppel may not apply to deprive a person from asserting his fundamental right. A right to default bail is a fundamental right (see Bikramjit Singh vs. The State of Punjab). But here again, it must depend upon fulfilment of conditions in Section 132 of the Criminal Procedure Code., The argument that survives is as follows: What mattered was that the appellant actually underwent the actual custody of 34 days by way of house arrest. The fact that there may have been illegality in the order of the magistrate will not take away the factum of actual custody. The fact that the appellant was given police custody and he did not object cannot defeat the appellant’s right. What is relevant is that a period of 90 days had run out. It is emphasized before us that even the Delhi High Court could not have ordered the detention of the appellant without authority of law. The only law which supports the house arrest is Section 167 of the Criminal Procedure Code., We have already noticed the circumstances surrounding the order passed by the Delhi High Court. We would also, at this juncture, again capture the order dated 29.08.2018, passed by this Supreme Court of India: 'Taken on Board. Issue notice. Mr. Tushar Mehta and Mr. Maninder Singh, learned Additional Solicitor Generals being assisted by Mr. R. Balasubramanian, learned counsel shall file the counter affidavit by 5.9.2018. Rejoinder thereto, if any, be filed within three days therefrom.', We have considered the prayer for interim relief. It is submitted by Dr. Abhishek Manu Singhvi, learned senior counsel appearing for the petitioners, that in pursuance of the order of the Delhi High Court, Mr. Gautam Navalakha and Ms. Sudha Bharadwaj have been kept under house arrest. It is suggested by him that as an interim measure, he has no objection if this Supreme Court of India orders that Mr. Varavara Rao, Mr. Arun Ferreira and Mr. Vernon Gonsalves, if arrested, be kept under house arrest at their own homes. We order accordingly. The house arrest of Mr. Gautam Navalakha and Ms. Sudha Bharadwaj may be extended in terms of our orders., We would think that the reality of the situation is explained by the said order. Upon being informed that the appellant and another were kept under house arrest, on the suggestion of the counsel for the petitioners in the public interest litigation before this Supreme Court of India, that he had no objection in three others, if arrested, they be kept under house arrest at their own homes, it was so ordered. It is not a case where this Supreme Court of India even had in its mind the duty to go through the entries in the case diaries relating to them, let alone actually going through them. Quite clearly, in respect of those persons, house arrest even was the result of the choice exercised by the senior counsel for the writ petitioners, who were not the persons to undergo the house arrest., No doubt, the public interest litigation was launched to have an impartial enquiry regarding their arrests. It was thereafter that it was ordered that the house arrest of the appellant and other (Sudha Bharadwaj) may be extended in terms of the order. House arrest was, undoubtedly, perceived as the softer alternative to actual incarceration. It was in that light that the Supreme Court of India proceeded in the matter. That house arrest, in turn, involved deprivation of liberty and will fall within the embrace of custody under Section 167 of the Criminal Procedure Code, was not apparently in the minds of both this Supreme Court of India and the Delhi High Court., Now, we are confronted with a clash between two values. On the one hand, there is the deprivation, in law, of the liberty of the appellant by way of house arrest for 34 days. On the other hand, it does not actually fall within the ambit of Section 167 of the Criminal Procedure Code for the reasons discussed earlier. While the right to default bail is a fundamental right, it is subject to the conditions obtained in Section 167 of the Criminal Procedure Code being satisfied. It must be purported to be passed under Section 167 of the Criminal Procedure Code. The right to statutory bail arises dehors the merits of the case. The fundamental right arises when the conditions are fulfilled. The nature of detention, being one under Section 167, is indispensable to count the period., Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except in accordance with the procedure prescribed by law. This article creates a fundamental right which cannot be waived. Unlike the persons who apparently underwent house arrest on the basis of the offer made on their behalf, in the case of the appellant, even prior to the order dated 29.08.2018, the Delhi High Court had ordered house arrest, which constituted house arrest. The appellant was an accused in a FIR invoking cognizable offences. He stood arrested by a police officer. He was produced before a magistrate. A transit remand, which was a remand under Section 167, was passed. Police custody followed. The Delhi High Court ordered that the appellant be kept in house arrest. The setting aside of the order of transit remand will not wipe out the police custody or the house arrest. We agree that illegality in the order of the Chief Metropolitan Magistrate, Saket, will not erase the deprivation of liberty. But other aspects already discussed militate against the order being treated as passed purportedly under Section 167. There can be no quarrel with the proposition that a court cannot remand a person unless the court is authorised to do so by law. However, we are in this case not sitting in appeal over the legality of the house arrest. We are here to find whether the house arrest fell under Section 167. We are of the view that in the facts of this case, the house arrest was not ordered purporting to be under Section 167. It cannot be treated as having been passed under Section 167., There is one aspect which stands out. Custody under Section 167 has been understood hitherto as police custody and judicial custody, with judicial custody being conflated to jail custody ordinarily., The concept of house arrest as part of custody under Section 167 has not engaged the courts including this Supreme Court of India. However, when the issue has come into focus, and noticing its ingredients, we have formed the view that it involves custody which falls under Section 167., We observe that under Section 167, in appropriate cases it will be open to courts to order house arrest. As to its employment, without being exhaustive, we may indicate criteria like age, health condition and the antecedents of the accused, the nature of the crime, the need for other forms of custody and the ability to enforce the terms of the house arrest. We would also indicate under Section 309 also that judicial custody being custody ordered, subject to following the criteria, the courts will be free to employ it in deserving and suitable cases., As regards post‑conviction cases we would leave it open to the legislature to ponder over its employment. We have indicated the problems of overcrowding in prisons and the cost to the state in maintaining prisons., In view of the fact that the house arrest of the appellant was not purported to be under Section 167 and cannot be treated as passed thereunder, we dismiss the appeal. There will be no order as to costs.
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id_55
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(Arising out of Special Leave Petition (Criminal) Number 363 of 2022) Leave granted. The appellant herein is accused of the offences pertaining to Sections 354, 323, 504 and 506 of the Indian Penal Code, 1860 and Sections 8 and 12 of the Protection of Children from Sexual Offences Act, 2012 as also Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 on the imputations, as allegedly made by her 17‑year‑old step‑daughter, about the appellant having inappropriately behaved with her and having mentally harassed her, when her father was abroad. It appears that in the background exists the marital discord leading to several litigations, including a petition seeking dissolution of marriage, as filed by the father of the victim child that is the husband of the present appellant, being marriage petition Number 875/2020 that remains pending before the Family Court, Bandra, Mumbai. In this matter, at the initial stage, the Supreme Court of India granted interim protection to the appellant but subject to the conditions that she would not enter the matrimonial house; would not create any unpleasant or untoward situation; and would not attempt to be proximate to the victim child. Thereafter, the Supreme Court of India noticed the element of settlement in this matter between the private parties and at request, they were referred to the Supreme Court Mediation Centre and thereafter, to the Court‑appointed mediator, the former Chief Justice of the Punjab and Haryana High Court. However, the efforts for settlement have not yielded any positive result, with the learned Court‑appointed mediator sending his report that the mediation was not possible. With the record standing thus, we have heard the learned senior counsel for the appellant as also the learned senior counsel appearing for respondent Number 2. Having heard learned counsel for the private parties, we posed queries to the learned counsel appearing for the respondent State who has submitted, after taking instructions from the investigating officer, that further investigation is requisite in this matter, particularly when, amongst others, the allegations are of the appellant having retained several of the papers and documents of the victim child with her, including Aadhaar Card and passport. This, according to the learned counsel for the State, has come to fore in the list of articles submitted by the victim girl to the investigating officer. Per contra, learned counsel for the appellant has drawn our attention to pages eight and nine of the counter affidavit filed on behalf of the State and has submitted that investigation is substantially over and the suggestions about want of documents are rather contradicted by the assertions made in the counter affidavit. We are not making any comments on the merits of the case either way but in the totality of the facts and circumstances of this case as also nature of accusations, we are clearly of the view that the custodial interrogation of the appellant is neither required nor would serve the cause of justice. Therefore, we are inclined to grant the concession of pre‑arrest bail to the appellant, subject, of course, to the conditions that have already been imposed by the Supreme Court of India in the order dated 20.01.2022 and subject to any further condition that may be imposed by the Trial Court. Accordingly, the impugned order dated 07.01.2022 is set aside and the appeal stands allowed to the extent and in the manner indicated above. It goes without saying that any observation occurring in this order and even the conditions imposed by this order shall otherwise not be of any impediment in the parties taking recourse to appropriate remedies in accordance with law. All pending applications stand disposed of., New Delhi; November 15, 2022. Petitions for Special Leave to Appeal (Criminal) Number 363/2022 (Arising out of impugned final judgment and order dated 07‑01‑2022 in Appeal Number 2879/2021 passed by the High Court of Judicature at Bombay) Date: 15‑11‑2022. This matter was called on for hearing today. For Petitioners: Mister Gopal Sankaranarayan, Senior Advocate; Ms. Sana Raees Khan, Advocate; Mister Anuj Jhaveri, Advocate; Mister Mahinder Singh Hura, Advocate; Mister Jasmeet Singh, Advocate on Record; Mister Saif Ali, Advocate; Mister Divjot Singh Bhatia, Advocate; Mister Pushpendra S. Bhadoriya, Advocate; Ms. Rusheet Saluja, Advocate; Ms. Mandeep Kaur, Advocate; Ms. Tanya Srivastava, Advocate. For Respondents: Mister Shrirang B. Varma, Advocate; Mister Siddharth Dharmadhikari, Advocate; Mister Aaditya Aniruddha Pande, Advocate on Record; Mister Dama S. Naidu, Senior Advocate; Mister Dhiraj, Advocate; Mister Saakshat Relekar, Advocate; Mister Ashutosh Dubey, Advocate; Mister Abhishek Chauhan, Advocate; Messrs. Vachher And Agrud, Advocate on Record. Upon hearing the counsel, the Supreme Court of India made the following: Leave granted. The appeal is allowed and the appellant is granted pre‑arrest bail in terms of the signed order. All pending applications stand disposed of.
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id_550
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Applicant: Virendra Kumar Sharma. Opposite Party: State of Uttar Pradesh and another. Counsel for Applicant: Manoj Kumar Rai, K.C. Tripathi. Counsel for Opposite Party: Government Advocate Honourable Sameer Jain, Judge. The case was called out in the revised list. Despite service of notice, no representative of opposite party No. 2 appeared. Heard Sri Manoj Kumar Rai, learned counsel for the applicant, and the Additional Government Advocate for the State‑respondent, and perused the record., The present application under section 482 of the Criminal Procedure Code has been filed by the applicant to quash the proceedings of complaint case No. 1690 of 2007 (Surendra Singh v. Virendra Kumar Sharma), under section 138 of the Negotiable Instruments Act, Police Station Bhelpur, District Varanasi, pending before the Second Chief Judicial Magistrate, Varanasi. Learned counsel for the applicant contended that the proceeding is challenged on the sole ground that, without recording the statements of opposite party No. 2 and witnesses under sections 200 and 202 of the Criminal Procedure Code, the summoning order dated 2 February 2008 was passed by the learned Additional Chief Judicial Magistrate, Court No. 2, Varanasi, and therefore the entire proceeding of the impugned complaint case is bad in the eye of law. No other argument was advanced on behalf of the applicant., The Additional Government Advocate contended that for passing the summoning order under section 138 of the Negotiable Instruments Act, there is no requirement of recording statements under sections 200 and 202 of the Criminal Procedure Code. If, as per the trial court, the complaint discloses a prima facie offence under section 138 of the Negotiable Instruments Act, the applicant/accused can be summoned; consequently, there is no illegality in the summoning order and the present application under section 482 of the Criminal Procedure Code is liable to be rejected., The present matter relates to the Negotiable Instruments Act and on 2 February 2008 the applicant was summoned under section 138 of the Negotiable Instruments Act. Perusal of the summoning order dated 2 February 2008 shows that a cheque issued by the applicant in favour of the firm of opposite party No. 2 was dishonoured. Notices on behalf of opposite party No. 2 were subsequently given to the applicant for payment of the cheque amount, but despite that no payment was made. Ultimately opposite party No. 2 filed the present complaint under section 138 of the Negotiable Instruments Act against the applicant. Hence, from the complaint a prima facie case under section 138 of the Negotiable Instruments Act is made out against the applicant., Further, section 145 of the Negotiable Instruments Act, 1881, which was introduced by Parliament by Act No. 55 of 2002 with effect from 6 February 2003, states as follows: 145. Evidence on affidavit. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions, be read in evidence in any enquiry, trial or other proceeding under the said Code. (2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein., Thus, as per section 145(1) of the Negotiable Instruments Act, the evidence of the complainant may be given by him on affidavit, and for summoning the accused under section 138 of the Negotiable Instruments Act, recording of statements under sections 200 and 202 of the Criminal Procedure Code is not required. In the present case, perusal of the summoning order dated 2 February 2008 reveals that the learned Second Chief Judicial Magistrate, Varanasi, while passing the order, perused the complaint, the affidavit filed in support of the complaint by opposite party No. 2, and other documents including the cheque. In view of the provisions of section 145 of the Negotiable Instruments Act, it cannot be said that the learned Second Chief Judicial Magistrate, Varanasi, committed any error while summoning the applicant, as there was no need to record statements under sections 200 or 202 of the Criminal Procedure Code., Recently, a Constitution Bench of the Honourable Supreme Court in In Re: Expeditious Trial of Cases Under Section 138 Negotiable Instruments Act, 1881 reported in All India Reporter 2021 Supreme Court 1957, paragraph twelve, observed: \Another point that has been brought to our notice relates to the interpretation of section 202(2) which stipulates that the Magistrate shall take evidence of the witness on oath in an inquiry conducted under section 202(1) for the purpose of issuance of process. Section 145 of the Act provides that the evidence of the complainant may be given by him on affidavit, which shall be read in evidence in any inquiry, trial or other proceeding, notwithstanding anything contained in the Code. Section 145(2) of the Act enables the court to summon and examine any person giving evidence on affidavit as to the facts contained therein, on an application of the prosecution or the accused. It is contended by the learned Amici Curiae that, though there is no specific provision permitting the examination of witnesses on affidavit, section 145 permits the complainant to be examined by way of an affidavit for the purpose of inquiry under section 202. He suggested that section 202(2) should be read along with section 145 and, in respect of complaints under section 138, the examination of witnesses also should be permitted on affidavit. Only in exceptional cases may the Magistrate examine the witnesses personally. Section 145 of the Act is an exception to section 202 in respect of examination of the complainant by way of an affidavit. There is no specific provision in relation to examination of the witnesses also on affidavit in section 145. It becomes clear that section 145 was inserted in the Act with effect from the year 2003, with the laudable object of speeding up trials in complaints filed under section 138. If the evidence of the complainant may be given by him on affidavit, there is no reason for insisting on the evidence of the witnesses to be taken on oath. On a holistic reading of section 145 along with section 202, we hold that section 202(2) of the Code is inapplicable to complaints under section 138 in respect of examination of witnesses on oath. The evidence of witnesses on behalf of the complainant shall be permitted on affidavit. If the Magistrate holds an inquiry himself, it is not compulsory that he should examine witnesses. In suitable cases, the Magistrate can examine documents for satisfaction as to the sufficiency of grounds for proceeding under section ... Thus, it is clear from the above judgment of the Honourable Supreme Court that even on the basis of an affidavit filed on behalf of the complainant, an accused can be summoned under section 138 of the Negotiable Instruments Act and there is no need to record statements under sections 200 and 202.\, Having considered the aforesaid facts and circumstances, it is apparent that there is no illegality committed by the learned Second Chief Judicial Magistrate, Varanasi, while passing the summoning order dated 2 February 2008 against the applicant. Therefore, the present application under section 482 of the Criminal Procedure Code is devoid of merit and is accordingly dismissed.
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For the petitioner: Mrs. Anjili Nag. For the respondents: Mr. Shatadru Chakraborty, Mr. Dibesh Dwivedi. Heard on: 11 October 2023 and 12 October 2023. Judgment on: 16 October 2023., The present writ petition is directed against an order passed by the Central Administrative Tribunal in OA No. 351/1539/2021 on 8 August 2018., A departmental proceeding was initiated against the petitioner, who was a primary school teacher at Government Middle School, Krishna Nagar, Havelock, on an allegation made by a girl student of class VIII that the petitioner outraged her modesty on 21 November 2009. The charge framed against the petitioner was proved to the extent that he had physically touched the student on her back, which caused unrest among the students, and the school did not function normally on 23 November 2009. The Disciplinary Authority, by an order dated 28 February 2012, held the petitioner guilty and imposed the major penalty of dismissal from service. The petitioner appealed, and by an order dated 5 July 2013, the Appellate Authority affirmed the order of the Disciplinary Authority including the penalty. A review application filed by the petitioner was rejected by an order dated 8 August 2018. The matter was taken to the Central Administrative Tribunal, which, by the impugned order, turned down the petitioner's prayer and dismissed the application., It is submitted on behalf of the petitioner that the criminal case instituted against the petitioner under Section 354 of the Indian Penal Code ended in acquittal on the basis of a compromise petition filed jointly by the victim and the petitioner before the Trial Court, and the petitioner was found not guilty. The charge in the departmental proceeding alleged that the petitioner committed gross misconduct unbecoming of a Government servant by molesting a girl student of class VIII inside the classroom during school hours on 21 November 2009. Several witnesses, including teachers and students, were examined, but none implicated the petitioner. The victim herself also gave evidence in the disciplinary proceedings, stating in her examination‑in‑chief that the petitioner put his hand on her back and pulled the straps of her undergarment. She further stated that she was not interested in contesting the case further and the case may be dropped. In cross‑examination, she admitted that she was copying during the science test on the date of the incident and that she had given a false statement to the police in self‑defence as she was shocked, nervous, aggrieved and angry due to the petitioner’s act of touching her shoulder from behind. She also said that the remaining part of the statement recorded by the police was false. The victim’s statement recorded on 9 March 2010 demonstrates that she made a false allegation because the petitioner had put his hand on her back only to restrain her from copying in the examination. Learned counsel further submits that the unrest caused due to the alleged act of the petitioner has not been proved. Since the victim has changed her stance, her statement that the petitioner touched her shoulders from the back cannot be safely relied upon. Even if it is held that the petitioner touched the victim’s shoulders from the back, it was only for the purpose of restraining her from copying, and there was no sexual or criminal intent., Learned advocate placed reliance on the authorities in M.V. Bijlani vs. Union of India and others reported in (2006) 5 Supreme Court Cases 88, Nirmal Justice Jhala vs. State of Gujarat and another reported in (2013) 4 Supreme Court Cases 301, and a judgment of the Honourable Division Bench of the Delhi High Court in Apparel Export Promotion Council vs. A.K. Chopra (LPA No. 27 and CM No. 297 of 1997) in support of her contention., In supporting the impugned order as well as the orders passed by the Disciplinary Authority and the Appellate Authority, learned counsel for the respondents submits that the decisions are well‑considered and the writ court, in exercising jurisdiction under Article 226 of the Constitution of India, cannot interdict the findings of fact‑finding authorities. Placing reliance on the authority in B.C. Chaturvedi vs. Union of India and others reported in (1995) 6 Supreme Court Cases 749, learned counsel has submitted that the court, in a judicial review, may interfere only when the authority has conducted the proceeding in a manner inconsistent with the rule of natural justice, in violation of statutory rules prescribing the mode of inquiry, or where the conclusion or finding reached by the Disciplinary Authority is based on no evidence. Re‑appreciation of evidence and the nature of punishment is best left to the Appellate Authority, and only when the conclusion, upon consideration of the evidence, is perverse, suffers from patent error on the face of the record, or is based on no evidence at all, may a writ of certiorari be issued., We have considered the rival contention of the parties, material on record and law on the point., Charge was framed against the petitioner and the major penalty of dismissal from service imposed on the basis of the complaint of the victim, a student of class VIII, that he had touched the victim on her shoulders. The Disciplinary Authority noted that in the criminal case filed under Section 354 of the Code, the petitioner was acquitted on the basis of a compromise petition jointly filed by the victim and the petitioner. The Disciplinary Authority held that since a minor is not competent to enter into a contract, the compromise petition filed by the minor victim and the petitioner jointly cannot be of any aid to the petitioner., It appears that the petitioner was acquitted from the criminal case on the basis of a joint compromise petition filed by the victim and the petitioner. The compromise petition cannot be termed as a contract. The compromise petition clearly demonstrates that the petitioner is innocent and the complaint was falsely lodged by the victim. Since the victim/complainant was not inclined to proceed with the case further and sought discharge of the petitioner, there was no legal impediment in her filing the compromise petition jointly with the petitioner before the learned Trial Court. The Trial Court decided not to deal with the merits of the case since the complainant herself submitted that she had lodged a false complaint and the petitioner was innocent., Several witnesses were examined by the Disciplinary Authority. The witnesses have neither corroborated the allegations made against the petitioner nor the unrest/agitation by the students following the alleged incident. Moreover, although the victim initially stated in her evidence that she was molested by the petitioner, she subsequently retracted and stated that the petitioner had only touched her shoulder from the back while she was copying in the examination., The Disciplinary Authority thrust an allegation of sexual harassment upon the petitioner and made detailed observations with regard to the heinous misconduct of the petitioner, referring to judgments dealing with molestation and sexual harassment. The Appellate Authority also recorded that the case pertains to molestation of a girl student of class VIII inside the classroom during school hours. The Appellate Authority placed reliance on the authority in Vishaka and others vs. State of Rajasthan and others, wherein the Honourable Supreme Court defined sexual harassment as any unwelcome sexually determined behaviour, whether directly or by implication, including physical contact and advances and any other unwelcome physical, verbal or non‑verbal contact of sexual nature., In the case at hand, the act of touching the victim’s shoulders from behind for the sole purpose of restraining her from copying in the examination cannot be said to have any sexual flavour. The victim herself has unequivocally stated that the petitioner held her by her shoulders when she was copying in the examination and has not indicated that the touch was with sexual intent or was inappropriate., In the order passed on 22 August 2023, the Central Administrative Tribunal reiterated the observations made by the Disciplinary Authority as well as the Appellate Authority. No independent consideration was made by the Tribunal in adjudicating the legality and correctness of the orders. There is no quarrel with the authorities referred to by the Tribunal in the impugned order. This High Court is not unmindful of the fact that the standard of proof required in departmental proceedings is based on pre‑ponderance of probability and is not escalated to proof beyond reasonable doubt as required in a criminal trial. However, since the disciplinary proceedings are quasi‑criminal in nature, pre‑ponderance of probability should be based on some evidence/material on record. The observation of the Honourable Supreme Court with regard to the standard of proof in a departmental inquiry, as recorded in the authorities in Nirmal Justice Jhala (supra) and M.V. Bijlani (supra), is required to be set out: “Disciplinary proceedings, however, being quasi‑criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi‑judicial function, who upon analysing the documents must arrive at a conclusion that there had been a pre‑ponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures.” In reiterating the said principle, the authority in Apparel Export Promotion Council (supra) also records the observation of the Honourable Supreme Court in 1995 (6) Supreme Court Cases 749 that there has to be some evidence before the inquiry officer for it to conclude that the allegations made are true., In the present case, the Disciplinary Authority awarded the penalty to the petitioner though there was no evidence at all against him. Although the respondents have tried to impress upon the court that the petitioner has been penalised for misconduct and not molestation, the article of charge framed against the petitioner says otherwise. It states that the petitioner committed gross misconduct unbecoming of a Government servant inasmuch as he molested one girl student. In other words, the allegation of misconduct is solely on the basis of the alleged act of molestation. Even in the order imposing the major penalty of dismissal from service, which was concurred by the Appellate Authority and the Tribunal, it has been held that the charge against the petitioner has been proved, the charge being misconduct for molesting the victim. Therefore, it is ultimately the alleged molestation which has been termed as misconduct on the part of the petitioner., There is not an iota of evidence on record that suggests misconduct by the petitioner. The victim’s statement is exonerative and gives a clean chit to the petitioner. The decision of the authorities is based on no evidence at all and no misconduct resulting in violation of the service rules has been substantiated against the petitioner., It is trite law that a judicial review is not an appeal and in exercising extraordinary jurisdiction under Article 226 of the Constitution of India, this High Court is not empowered to sit in appeal against the orders impugned and can only review the decision‑making process. The Honourable Supreme Court, in the authority in B.C. Chaturvedi vs. Union of India and others reported in (1995) 6 Supreme Court Cases 749, has held that the court may interfere when the conclusion or finding reached by the Disciplinary Authority is based on no evidence. The ratio of the judgment is applicable in the present case where the authorities have drawn an inference against the petitioner based on no evidence at all. Restraining the victim from copying in the examination by touching her shoulders from behind can under no stretch of imagination be termed as misconduct, especially since the victim herself has not termed such action to be inappropriate or malicious. For that reason the penalty imposed upon the petitioner is also utterly disproportionate and has no legal sanction., In the said backdrop, we are inclined to hold that the decision taken by the Disciplinary Authority and the subsequent decisions of the Appellate Authority as well as the Tribunal and also the inquiry report on the basis of which the orders were passed suffer from the aforementioned laches and therefore cannot be sustained., Accordingly, the writ petition being WP/CT/50/2023 is allowed., The inquiry report as well as the orders passed by the Disciplinary Authority, the Appellate Authority and the Central Administrative Tribunal are set aside and quashed., The respondent authorities are directed to reinstate the petitioner in service with full back wages as well as other consequential benefits to which the petitioner is entitled., The petitioner is also entitled to costs of Rs 10,000 to be paid by the respondent authorities., An urgent photostat certified copy of this order, if applied for, may be supplied to the parties upon compliance of usual formalities., Suvra Ghosh, Justice.
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Writ Petition (Civil) No.25774/2022 Monday, the 10th day of October 2022 / 18th Aswina, 1944. The petition prays inter alia that in the circumstances stated in the affidavit filed along with the Writ Petition (Civil) the High Court of Kerala be pleased to direct the respondents not to initiate any coercive proceedings pursuant to Exhibit P1 and Exhibit P5 summons against the petitioner. This petition is filed for orders upon perusing the petition and the affidavit filed in support of the Writ Petition (Civil) and order dated 2 September 2022 for Respondents (By Order), the High Court of Kerala passed the following:, The first petitioner is the Kerala Infrastructure Investment Fund Board (KIIFB) constituted under Section 4 of the Kerala Infrastructure Investment Fund Act, 1999 (the Act). The second petitioner is the Chief Executive Officer of the KIIFB and the third petitioner is its Fund Manager. The petitioners are aggrieved by the repeated issuance of summons by the Directorate of Enforcement, first respondent, under Section 37(1) and (3) of the Foreign Exchange Management Act, 1999 (the FEMA) read with Section 131(1) of the Income Tax Act, 1961 and Section 30 of the Code of Civil Procedure, 1908., The essential facts are as follows. The Kerala Infrastructure Investment Fund Act provides for the constitution of a fund for investment in infrastructure projects in the State. The Kerala Infrastructure Investment Fund Scheme was notified accordingly. Among other sources, the corpus of the fund consists of the amounts borrowed by the KIIFB under Section 8 of the Act. In accordance with the said provision, at the 31st General Body Meeting of the KIIFB held on 30 November 2017, a decision was taken to raise funds for various infrastructure projects within the State by issuing Rupee Denominated Bonds (Masala Bonds). The Board appointed Axis Bank as its Advisor to the Masala Bonds issue. On 22 May 2018, Axis Bank issued Exhibit P1 letter to the Reserve Bank of India, seeking permission for issuance of Masala Bonds of Rupees 2672.80 Crores by the KIIFB. By Exhibit P2 letter dated 01 June 2018, the RBI intimated its No Objection under the extant Rupee Denominated Bond framework. Thereafter the RBI issued Exhibit P3 communication, allotting a registration number for the Rupee Denominated Bonds. Based on the permission granted, the Masala Bonds issue was opened for subscription on 26 March 2019 and closed on 27 March 2019. The Bonds were subsequently listed on the London and Singapore Stock Exchanges., On 03 February 2021, the second petitioner was served with Exhibit P4 summons issued under Section 37(1) and (3) of the Foreign Exchange Management Act, 1999 (the FEMA) read with Section 131(1) of the Income Tax Act, 1961 and Section 30 of the Code of Civil Procedure, 1908. Thereafter, Exhibits P6 and P8 summonses were issued. In response to the summons, the second petitioner made available the documents mentioned therein and addressed Exhibit P9 letter to the Deputy Director of the first respondent, stating that the summons were ultra vires the provisions of the FEMA as well as the principles laid down by the Supreme Court. Thereafter, the second petitioner was issued with Exhibit P10 summons and he appeared before the Assistant Director of the first respondent in person on 15 December 2021 and made oral submissions., The third petitioner was issued with Exhibit P11 summons dated 07 July 2022. The third petitioner appeared before the first respondent in response to the summons on 19 July 2022 and made oral submissions. The third petitioner was asked to appear again on 22 July 2022. By Exhibit P12 letter dated 20 July 2022, she sought an adjournment of the personal hearing by two weeks. Thereafter, the third petitioner was issued with Exhibit P13 to which she gave Exhibit P14 reply, stating that she had already appeared and answered all the questions put to her, most of which were not in relation to Section 13 of the FEMA. The third petitioner also submitted that her privacy was intruded for no obvious reason, by requiring her to submit her income tax returns and bank accounts, without even indicating the reason for compelling her to produce those documents., The writ petition was filed at that stage, seeking to quash the summons and the first respondent from initiating any investigation into the Masala Bonds issued. Senior Advocate K. Gopalakrishna Kurup appearing for the petitioners made the following submissions., The so‑called inquiry by the Directorate of Enforcement is ex facie illegal since the Masala Bonds were issued with prior approval from the RBI, as provided in Section 6(3)(d) of the FEMA and the Foreign Exchange Management (Borrowing and Lending) Regulations, 2018. The KIIFB is constituted under a State enactment, with the Chief Minister as its Chairperson, the Minister for Finance as Vice‑Chairperson, the Vice Chairman of the State Planning Board, the Chief Secretary, Secretary (Law), Secretary (Finance), Secretary (Finance‑Resources) and other members. The Chief Executive Officer, who is the Member Secretary, is a Senior IAS officer. The Act contains in‑built checks and measures for streamlining the functioning of the KIIFB. Borrowing and lending activities are undertaken with previous sanction from the Government. Further, as per Section 9 of the Act, the Government provides a guarantee for repayment of the principal and interest of any fund raised by the Board. The books of accounts and the balance sheet are audited and certified. A copy of the annual report of the Board is submitted to the Government before the end of July every year. Further, all actual External Commercial Borrowings are reported to the RBI on a monthly basis. The RBI having not raised any objection or even suspicion regarding the issuance of Masala Bonds and utilisation of the funds raised, the Enforcement Directorate is not empowered to conduct any inquiry. Relying on the decision in LIC v. Escorts Ltd [(1986) 1 SCC 264], it is contended that while the task of enforcement is left to the Directorate of Enforcement, only the Reserve Bank of India is empowered to decide whether permission for raising funds from outside the country is to be granted., The repeated summons, without even revealing the reason for summoning the petitioners and requiring them to produce personal and private details, reeks of mala fides. The indifferent manner in which the summons were issued indicates lack of application of mind. In Barium Chemicals Ltd v. A. J. Rana [1972 1 SCC 240], the Apex Court while dealing with the question relating to the circumstances in which a notice under Section 19(2) of the Foreign Exchange Regulations Act, 1947 can be issued, has categorically held application of mind to be sine qua non for issuance of summons. Continuance of the roving inquiry is causing prejudice to the State as a whole, since the hype regarding pendency of an inquiry has resulted in funding agencies hesitating to offer financial support., The petitioner is the former Finance Minister of the State and in that capacity was the Vice‑Chairperson of the KIIFB during the period 2016‑2021. The petitioner is also being summoned by officials in the Enforcement Directorate and is challenging the issuance of repeated summons as illegal., Senior Advocate Sidharth Dave appearing for the petitioner took exception to the issuance of summons without specifying the reason, and the compulsion to produce statements of accounts and documents relating to the immovable property of not only the petitioner but his immediate relatives as well. It is submitted that the intention can only be to vilify the petitioner, who has always maintained high standards and integrity as a politician. Referring to Section 37 of the FEMA, it is contended that the Enforcement Directorate can conduct inquiry or investigation only on Section 13 being contravened. As per Section 13, the contravention of any rule, regulation, notification, direction etc. issued in exercise of the powers under the Act, or of any condition subject to which an authorisation is issued by the Reserve Bank, can result in adjudication and imposition of penalty. As per Section 13(1‑B), the adjudicating authority can recommend initiation of prosecution by filing a criminal complaint, if any person is found to have acquired foreign exchange, foreign security or immovable property situated outside India. It is contended that the manner in which the summons is issued clearly reveals that the Enforcement Directorate is bent upon prosecuting the petitioner., It is argued that the Enforcement Directorate is engaged in a roving inquiry for reasons best known to all. In this regard, attention is drawn to the Annexure to Exhibit P5 summons, wherein details of all the bank accounts maintained or operated by the petitioner and his family members in India and abroad, details of the petitioner’s foreign visits for the last ten years along with purpose and income therefrom, details of foreign inward remittances sent by the petitioner or companies/firms in which the petitioner is the Director or Partner during the last ten years, along with irrelevant documents, bank accounts etc., are sought., Senior Advocate S. V. Raju, learned Additional Solicitor General appearing for the Enforcement Directorate, refuted the allegations of mala fides and put forth the following contentions., Other than making unsubstantiated allegations, the petitioners have not pointed out any contravention of the provisions of the FEMA in issuing the summons. Section 37 of the FEMA clothes the Enforcement Directorate with sufficient power to issue summons when violation of the provisions is suspected or brought to its notice. It is the settled position of law that there cannot be a writ of prohibition restraining inquiry, adjudication and prosecution by a competent agency. It has been so held, though with reference to the provision of the Foreign Exchange Regulation Act, in Standard Chartered Bank and others v. Directorate of Enforcement and others [(2006) 4 SCC 278]. The High Court of Madras in T. T. V. Dinakaran v. Enforcement Officer, Enforcement Directorate [1995 SCC OnLine Mad 893] and K. A. Manshoor v. Assistant Director, Enforcement Directorate, Government of India [2009 SCC OnLine Mad 1839] has repelled the challenge against summons, based on the contention that the summons does not reflect application of mind by the authority., The Foreign Exchange Management Act contained Section 6(3) until it was omitted with effect from 15 October 2019 vide Act 20 of 2011. Section 6(3) provided the RBI with the power to prohibit, restrict or regulate the issuance of Foreign Currency Convertible Bonds. In exercise of that power and in accordance with the Foreign Exchange Management (Borrowing and Lending) Regulations, 2018, the RBI issued Exhibit P18 Master Direction detailing the External Commercial Borrowing framework. The framework also contains an end‑usage negative list. The External Commercial Borrowing proceeds cannot be invested for the items included in the negative list. One item in the negative list is real estate activity. The subject inquiry is being conducted to find out whether proceeds from the Masala Bonds have been invested in real estate or other prohibited activities included in the negative list. The Enforcement Directorate has every authority to conduct such inquiry since Clause 12 of Exhibit P18 imposes the borrower with the primary responsibility of ensuring that the borrowing is in compliance with the applicable guidelines and makes any contravention of the applicable provisions actionable under the FEMA., The inquiry was also necessitated since the Comptroller and Auditor General (CAG) had reported that raising of funds through issue of Masala Bonds is a classic case of off‑budget borrowings, which bypasses the limits set on Government borrowings under Article 293 of the Constitution of India and violates the provision of Entry 37 of List I. The procedure under the FEMA requires the Enforcement Directorate to file a complaint based on the inquiry. Thereupon an adjudication has to be conducted before proceeding further. The attempt of the petitioners, through the premature and unmerited writ petition, is to scuttle the inquiry., In reply, learned Senior Counsel for the petitioner submitted that the CAG report cannot be the basis for an inquiry and prosecution by the Enforcement Directorate, since the defects reported by the CAG were considered by the Legislative Assembly on 22 January 2021 and rejected as per Exhibit P16 resolution. It is for the Parliament or the State legislature, as the case may be, to decide whether to accept or reject the report. In Arun Kumar Agrawal v. Union of India [(2013) 7 SCC 1], the Apex Court has held the CAG’s report to be subject to parliamentary debates, as also the authority of the Public Accounts Committee to accept the Ministry’s objection and reject the CAG report., In the instant case, the State Assembly has rejected that part of the CAG report dealing with issuance of Masala Bonds. Hence, an inquiry based on the rejected report will amount to transgression into the State’s domain, which goes against the principle of cooperative federalism. It is submitted that absolutely nothing is stated in the counter affidavit as regards the contention based on Section 6(3) of the FEMA. In spite of this, the High Court of Kerala having required the competent officer of the Directorate to file an affidavit stating whether issuance of Masala Bonds by any other entity is being enquired into, that aspect is also not mentioned in the counter affidavit., As pointed out by the learned Additional Solicitor General, there is very limited scope for issuing a writ of prohibition restraining the Directorate of Enforcement from proceeding with the inquiry. The scope for interference with the issuance of summons at the stage of inquiry or investigation is also limited. At the same time, even going by the precedents, there is no absolute embargo in the writ court considering the sanctity and legality of the inquiry. The instant case is different from the others insofar as the inquiry is being conducted against a statutorily constituted Board, the activities of which are being subjected to scrutiny by the State. Further, raising of funds by issuing Masala Bonds was permitted by the Reserve Bank of India. In the above circumstances, whether an inquiry is warranted is the question arising for consideration., In the counter affidavits filed in the writ petitions, the repeated assertion of the deponent is as follows: It is submitted that the edifice of the investigation initiated by the first respondent is cemented by two facets. Firstly, complaints were received on the contravention of regulations of the Foreign Exchange Management Act, 1999 by the Kerala Infrastructure Investment Fund Board (KIIFB), a body corporate, with respect to Rupee denominated bonds overseas (Masala Bonds). Secondly, there were observations on non‑adherence to constitutional provisions with respect to the Masala Bonds and KIIFB borrowings in the State Finance Audit Report of the Comptroller and Auditor General of India for the year ended March 2019. In view of the said complaints and CAG report, the Office of the first respondent has initiated investigation into the allegations of contravention of regulations of the Foreign Exchange Management Act, 1999., With regard to the above aspect, I find prima facie merit in the contention that the objection in the CAG report cannot be the basis for an inquiry in the instant case, since the objection was considered and rejected by the State Assembly. In Arun Kumar Agrawal v. Union of India [(2013) 7 SCC 1], the Apex Court made the following observations with respect to the sanctity of the CAG report and the power of Parliament: 66. We have referred to the report of the CAG, the role of the Public Accounts Committee and the procedure followed in the House, only to indicate that the CAG report is always subject to scrutiny by Parliament and the Government can always offer its views on the report of the CAG. 67. The question that is germane for consideration in this case is whether this Court can grant reliefs by merely placing reliance on the CAG’s report. The CAG’s report is always subject to parliamentary debates and it is possible that the Public Accounts Committee can accept the Ministry’s objection to the CAG report or reject the report of the CAG. The CAG, indisputably, is an independent constitutional functionary; however, it is for Parliament to decide whether after receiving the report, the Public Accounts Committee should make its comments on the CAG’s report. 68. We may, however, point out that since the report is from a constitutional functionary, it commands respect and cannot be brushed aside as such, but it is equally important to examine the comments that respective Ministries have to offer on the CAG’s report. The Ministry can always point out if there is any mistake in the CAG report or the CAG has inappropriately appreciated the various issues. For instance, we cannot as such accept the CAG report in the present case. Therefore, it is doubtful whether the objections in the CAG report, which stand rejected by the State Assembly, can lead to an inquiry by the Enforcement Directorate., In the course of arguments, the learned Additional Solicitor General submitted that the inquiry was also necessitated since complaints were received regarding violation of the permission granted under Section 6(3) of the FEMA, the Foreign Exchange Management (Borrowing and Lending) Regulations, 2018 and the Master Directive issued by the Reserve Bank of India. Regarding this contention, the submission of the petitioners that monthly reports in Form ECB‑2 are being submitted to the Reserve Bank and no objection or suspicion has been raised by the RBI assumes relevance. In view of the said contention, I find the Reserve Bank of India also to be a necessary party for deciding the issues involved., Yet another pertinent aspect is that, in spite of the direction issued by this Court on 2 September 2022 requiring the competent officer of the Enforcement Directorate to state whether the issuance of Masala Bonds by other entities is being inquired into, absolutely nothing in that regard is stated in the counter affidavit filed on 23 September 2022. The competent officer was called upon to deal with the above aspect since the petitioners had asserted that other Government entities like the National Highways Authority of India, National Thermal Power Corporation Ltd, Indian Renewable Energy Development Agency Ltd have also issued Masala Bonds and no investigation or inquiry is being conducted with respect to the issuance of Bonds by those entities. To say the least, I am perturbed by the manner in which the direction of this Court has been sidelined and neglected., The following paragraphs of the Apex Court’s decision in Manoharlal Sharma v. Union of India [2021 SCC OnLine SC 985], being contextually relevant, are extracted hereunder: 52. Of course, the Respondent‑Union of India may decline to provide information when constitutional considerations exist, such as those pertaining to the security of the State, or when there is a specific immunity under a specific statute. However, it is incumbent on the State to not only specifically plead such constitutional concern or statutory immunity but also to prove and justify the same in Court on affidavit. The Respondent‑Union of India must necessarily plead and prove the facts which indicate that the information sought must be kept secret as its divulgence would affect national security concerns. They must justify the stand that they take before a Court. The mere invocation of national security by the State does not render the Court a mute spectator., The above discussion leads to the conclusion that although the inquiry or investigation by the Enforcement Directorate is not liable to be interdicted, there is no justification in the petitioners being repeatedly summoned by the officers of the Enforcement Directorate. For the aforementioned reasons, issuance of further summons to petitioners 2 and 3 in Writ Petition (Civil) No.26228 of 2022 and the petitioner in Writ Petition (Civil) No.25774 of 2022 shall be kept on hold for two months. The Reserve Bank of India, represented by its Chief General Manager, Foreign Exchange Department, Central Office, External Commercial Borrowings Division, Mumbai, is suo motu impleaded as an additional respondent in both writ petitions. The Registry is directed to take necessary steps for issuing notice to the impleaded respondent through speed post. Post on 15 November 2022 for further consideration., True Copy – Assistant Registrar.
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Applicant: Chhangur Yadav. Opposite Party: State of Uttar Pradesh. Counsel for Applicant: Ankit Kapoor and Virendra Kumar Yadav. Counsel for Opposite Party: G. A. Honorable Krishan Pahal, Judge. The learned counsel for the applicant and the learned Additional Government Advocate for the State perused the material placed on record., By means of the present application, the applicant, Chhangur Yadav, seeks bail in Case Crime No. 417 of 2021, under Sections 500, 501, 505, 419, 420, 468 of the Indian Penal Code and Section 66D of the Information Technology Act, Police Station Chaubeypur, District Varanasi, during the pendency of trial., As per the prosecution story, the applicant is said to have posted objectionable pictures of the Prime Minister of India on Facebook and WhatsApp which enraged the public at large., The learned counsel for the applicant submits that the applicant has been falsely implicated in the present case, has no criminal history, and has been languishing in jail since 09 October 2021; therefore he deserves to be released on bail and will not misuse the liberty of bail and shall cooperate with the trial., The learned Additional Government Advocate, Vibhav Anand Singh, vehemently opposed the bail prayer, contending that the applicant has hurt the sentiments of the public by posting objectionable pictures of the Prime Minister, who is the face of the nation, and therefore the applicant does not deserve any indulgence and may again indulge in similar activities if released., Several other submissions demonstrating the falsity of the allegations against the applicant have been placed before the Honorable High Court, and the circumstances leading to the false implication have been discussed at length., Keeping in view the nature of the offence, the evidence on record regarding complicity of the accused, the larger mandate of Article 21 of the Constitution of India and the dictum of the Apex Court in the case of Dataram Singh v. State of Uttar Pradesh and another reported in (2018) 3 SCC 22, and without expressing any opinion on the merits of the case, the Honorable High Court is of the view that the applicant has made out a case for bail. The bail application is allowed. Let the applicant, Chhangur Yadav, be released on bail upon furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court, subject to the following conditions., The applicant shall file an undertaking that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in court; in case of default, the Trial Court may treat it as abuse of liberty of bail and pass orders in accordance with law. The applicant shall remain present before the Trial Court on each date fixed, either personally or through his counsel; in case of his absence without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code. If the applicant misuses the liberty of bail during trial, a proclamation under Section 82 of the Criminal Procedure Code may be issued and, if he fails to appear before the court on the date fixed in such proclamation, the Trial Court shall initiate proceedings against him under Section 174-A of the Indian Penal Code. The applicant shall remain present in person before the Trial Court on dates fixed for opening of the case, framing of charge and recording of statement under Section 313 of the Criminal Procedure Code; if the Trial Court finds his absence deliberate or without sufficient cause, it may treat such default as abuse of liberty of bail and proceed against him in accordance with law. Breach of any of the above conditions shall be a ground for cancellation of bail., It is made clear that the observations made in granting bail to the applicant shall not in any way affect the learned trial judge in forming his independent opinion based on the testimony of the witnesses.
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Leave granted. Heard learned counsel for the parties. The challenge in this appeal has been made to the Order dated 21 June 2022 passed by the High Court of Chhattisgarh granting bail to the appellant subject to conditions. One of the conditions was that the appellant shall deposit a sum of Rs.70 Lakhs under protest, in favour of the Principal Commissioner, Central Goods and Services Tax, Raipur within a period of 45 days from the date of his release. It is this condition which is under challenge before us. Learned counsel appearing for the appellant submits that the condition to deposit Rs.70 Lakhs within 45 days from the date of the release as a prerequisite condition for the bail is not sustainable inasmuch as the First Information Report was in respect of wrongfully availing the Input Tax Credit of Rs.6,95,32,472. It is further submitted that there is no final assessment in this regard under the Goods and Services Tax Act. Hence it cannot be presumed that the appellant is under a legal liability to pay the said amount. As an officer of this Supreme Court of India, Mr. K.M. Nataraj, learned Additional Solicitor General appearing for the Union of India/State has fairly stated that such a condition cannot be imposed while granting bail. Considering the above facts and circumstances, in our considered opinion, the condition directing the appellant to deposit a sum of Rs.70 Lakhs is not liable to be sustained and is hereby set aside. The rest of the conditions in the impugned order are sustained. The appeal accordingly stands allowed to that extent. Pending applications, if any, shall stand disposed of., 20 January 2023 Petition(s) for Special Leave to Appeal (Criminal) No(s). 6640/2022 (Arising out of impugned final judgment and order dated 21 June 2022 in MCRC No. 900/2022 passed by the High Court of Chhattisgarh at Bilaspur) Date: 20-01-2023. This petition was called on for hearing today. For Petitioners: Mr. Himanshu Tyagi, Advocate on Record; Mrs. Poonam Sharma, Advocate; Mr. Moksh Tyagi, Advocate. For Respondents: Mr. K.M. Nataraj, Additional Solicitor General; Mr. Mukesh Kumar Maroria, Advocate on Record; Mr. Sharath Nambiar, Advocate; Mr. Vinayak Sharma, Advocate; Mr. Bhuvan Kapoor, Advocate; Mr. Sumeer Sodhi, Advocate on Record; Mr. Devashish Tiwari, Advocate; Ms. Tanya Verma, Advocate., Upon hearing the counsel the Supreme Court of India made the following: Leave granted. The appeal stands allowed in terms of the signed order. Pending applications, if any, shall stand disposed of. (Geeta Ahuja) (Beena Jolly) Assistant Registrar-cum-PS Court Master (Signed order is placed on the file).
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Reserved on: 17th July, 2023. Pronounced on: 01st September, 2023. Through: Mr. Jai Bansal, Advocate along with appellants in person versus Respondent in person., The present Appeal under Section 19 of the Family Courts Act, 1984 has been filed by the appellants against the impugned order dated 21 March 2018, whereby the petition filed by the appellants, who are the maternal grandparents of the minor child, seeking appointment as guardian and permanent custody, was dismissed., The factual matrix in brief is that a petition under Section 7 read with Section 25 of the Guardians and Wards Act, 1890 was filed on behalf of the maternal grandparents, the appellants, to be appointed as guardian and for permanent custody of their grandson Master Rehan. The appellants' daughter Quamar Jahan was married to the respondent on 25 November 2007 and the couple was blessed with one son, Master Rehan, on 24 November 2008. According to the appellants, Quamar Jahan was killed by the respondent on account of dowry demand and harassment within seven years of marriage, i.e., on 22 January 2010. The FIR under Sections 304-B and 34 of the Indian Penal Code was registered at Police Station Jyoti Nagar against the respondent and his parents. The respondent eloped with the child; however, subsequently the respondent and his parents were arrested and sent to judicial custody., Immediately after the respondent and his parents were sent to jail, the guardianship petition was filed by the maternal grandparents on 24 February 2010 seeking custody of the child. Initially, other family members of the respondent had custody of Master Rehan as the respondent was absconding. The child was recovered on 30 May 2010 and was handed over to the appellants on the same day, and since then the child has been in their continuous custody., The respondent and his other family members were acquitted in the criminal case on 7 November 2012. The appellants have, however, preferred a criminal appeal against the acquittal of the respondent and his family members, and the appeal has been admitted by this Court., On 18 August 2012, the respondent filed an application seeking interim custody of the child from the appellants under Section 12 of the Guardians and Wards Act, 1890 on the premise that he and his family members had been acquitted in the criminal case. The learned Judge of the Family Court initially directed that custody of the child be handed over to the respondent from June 2013, vide order dated 4 March 2013. However, that order was set aside by the High Court in Civil Miscellaneous Petition No. 558 of 2013, vide order dated 22 May 2013, and the matter was remanded back to be decided afresh. The Judge of the Family Court, vide order dated 29 May 2013, directed that custody of the child remain with the maternal grandparents, the appellants. The respondent filed two Special Leave Petitions bearing numbers 19464/2013 and 19465/2013 before the Supreme Court of India challenging the orders dated 22 May 2013 of the High Court and 29 May 2013 of the Family Court, but they were dismissed by the Apex Court on 11 June 2013., The appellants claimed custody of the child on the ground that the acquittal of the respondent in the criminal case is under challenge before this Court. The custody of the child has always been with the appellants and it was only after the acquittal that the respondent sought transfer of custody. There has been no change in circumstance since the custody of the child was permitted to be with the maternal grandparents. It was also claimed that the respondent has been cruel to their daughter and is therefore not capable of keeping custody of the child. It was further claimed that the child was being used as a pawn to compromise with the respondent and his family members in the criminal case., The appellants further asserted that the respondent and his family members are neither well educated, well‑mannered nor possessing proper etiquette., Since the beginning, their attitude was cruel, manifested in their behaviour towards the daughter of the appellants. Moreover, they displayed rude behaviour and a negligent attitude even towards the grandson. It was claimed that the child's career would be ruined if he were allowed to stay with the respondent. On the other hand, the appellants claimed that they are well educated and reputable and that the child's career and future prospects would be well looked after if custody were given to the appellants. Hence, the petition was filed by the appellants under Section 7 read with Section 25 of the Guardians and Wards Act, 1890 seeking their appointment as guardian of the minor child and also his permanent custody., The petition was contested by the respondent, who asserted that the petition was an abuse of the process of the Family Court as material facts had been concealed by the appellants. It was claimed that the true facts had not been disclosed in the appeal. The appellants are elderly persons who are incapable of taking care of the minor child, and the appeal must be dismissed on this ground. It was further asserted that the petition was filed with the sole motive of harassment and causing humiliation to the respondent and his family members. They are legally entitled to keep custody of the child who have always been in their care. It is explained that on registration of the FIR and arrest of the respondent and his family members, custody of the child was handed over by them to Moinuddin and Fahmida, the paternal uncle and aunt of the respondent, and the child was living in their care and custody. It is further explained that the police directed the paternal uncle and aunt to produce the child before the Family Court on 3 July 2010, on which date custody of the child was handed over to the appellants. Thereafter, the paternal uncle and aunt moved an application under Order I Rule 10 of the Code of Civil Procedure to be impleaded as parties and also moved an application under Section 12 of the Guardians and Wards Act, 1890, and they were impleaded as parties, i.e., the respondent Nos. 2 and 3., The father and mother of the respondent came to know that during the pendency of the guardianship petition, custody of the child had been taken away from the paternal uncle and aunt by the order of the Family Court. On being released on bail vide order dated 26 September 2012, the names of the previous respondent Nos. 2 and 3, i.e., the paternal uncle and aunt, were deleted and instead the parents of the respondent were impleaded as respondent Nos. 2 and 3 therein., It was contended on behalf of the respondents that the deceased Quamar Jahan, wife of the respondent No. 1, was suffering from mental illness and was under treatment at various hospitals, as evident from the medical records. It was further explained by the respondents that the fact of mental ailment of the deceased wife was not disclosed at the time of marriage and came to the knowledge of the respondent and his parents only thereafter. It is denied that the deceased Quamar Jahan was abandoned by the respondent; it is claimed that he took care of her to the best of his ability and took her to various hospitals for treatment. It is unfortunate that she committed suicide by jumping from the house of the respondent. It is further asserted that during her lifetime, no complaint whatsoever was made by the appellants that their daughter was being harassed for dowry and that the false allegations against the respondent emerged only after her sad demise. It was also explained that the respondent had been acquitted by the judgment dated 7 November 2012 as the allegations of cruelty could not be proved and it was established that the wife of the respondent was suffering from mental illness and was taking regular treatment from Holy Family Hospital, IHBAS and other private clinics., The respondent has asserted that during the lifetime of the daughter of the appellants and thereafter, the respondent and his parents have great love and affection towards the child and that the respondent has been maintaining him well by providing all facilities and meeting his requirements. The future of the child would be spoiled if custody remains with the maternal grandparents, as they cannot provide better education, atmosphere and status since they have no source of income even to meet his daily requirements. Custody of the child was requested to be handed over to the respondent, the father, being the natural guardian of the child., The respondent/father has further stated that he is a 12th‑class pass and was running a mobile shop under the name and style of M/s N.K. Mobile Shop & Training Centre, Maujpur, Delhi. While he was in judicial custody in the case under Sections 498‑A, 304‑B and 34 of the Indian Penal Code, his business was handed over to his younger brother, Naved, and after being released from judicial custody, he has continued with the mobile shop business along with his brother and is earning more than Rs 25,000 per month. The respondent No. 2, Naimuddin, is doing his business and has an independent status, earning about Rs 30,000 per month. They also have movable and immovable properties in their names and are in a sound financial position, capable of providing good care to the child. It was therefore submitted that the guardianship petition filed by the appellants was liable to be dismissed and custody of the child must be permitted to remain with the respondent/father being the natural guardian of the child., On the pleadings, the issues were framed by the Family Court on 10 April 2013 as follows: (1) Whether it is in the interest and welfare of the minor child Master Rehan to appoint the petitioners as the guardian of his person and property as well as to hand over his permanent custody to them? (2) Relief., The appellants examined themselves as PW‑1 and PW‑2 in addition to their two sons PW‑3 Mohd. Imran and PW‑4 Mohd. Irfan. The respondent No. 1 tendered his evidence by way of affidavit Ex.RW‑1/A., The learned Principal Judge of the Family Court, after due consideration of the entire evidence, concluded that the natural parents, under law such as the Hindu Minority and Adoption Act, 1956 and the Guardians and Wards Act, 1890, have a preferential right for custody of a child, but the term guardian under the Guardians and Wards Act, 1890 makes a deviation insofar as it provides that custody of the child may not always be with the natural parents and may be decided on the paramount interest and welfare of the child., The learned Principal Judge observed that the child, during his interaction, expressed his willingness to remain with the maternal grandparents. Further, the child has been in continuous custody with the maternal grandparents from 2010, when he was barely one year old, and had been made to believe that the respondent, his father, had killed his mother. The evidence led by the parties reflected that the appellants had a serious grudge against the respondent. Apart from the criminal case under Section 498‑A of the Indian Penal Code, the respondent has not been shown to have any criminal background and there is no disqualification of the respondent proved. It was concluded that there can be no comparison of love and affection of a natural parent of a child to any other relative and custody should not be denied unless there are imperative reasons. Contentions that the respondent has not contributed financially and was least concerned about the well‑being of the child were rejected, observing that the terms between the parties were still bitter and they did not see each other eye to eye. The record reflected that after being released from judicial custody, he moved an application seeking custody of the child and had continued to visit him for about one year. Also, he has been rigorously pursuing the litigation and there exists no reason to deprive him of custody of the child. Hence, the guardianship petition filed by the appellants/maternal grandparents was dismissed., Aggrieved by the dismissal of the guardianship petition, the present appeal has been filed. The main grounds agitated by the appellants are that repeated change of custody has made the child a shuttle cock, which is not in his interest. The respondent and his family members have no love and affection for the child. The child has been in custody with the appellants since he was about one year old and at the time of filing of the appeal he was about ten years old. During interaction with the Court, he categorically expressed his unwillingness to reside with the respondent. The learned Family Judge failed to appreciate the intelligent preference of the child who had expressed his desire to remain with the appellants. Moreover, the respondent has remarried and has a child from the second marriage, which incapacitates him from taking custody of Master Rehan. Furthermore, the respondent is only an eighth‑pass and has no source of income and has also sold his house and shop during the pendency of the guardianship petition. The respondent was incompetent to take care of his wife and is also unable to take care of the child. It is further agitated that although the respondent claims that he has two mobile showrooms, he has failed to place any documents in support thereof. It has been erroneously observed in the impugned judgment that the respondent is well educated when he is barely even eighth‑pass. It is further contended that the respondent is claiming custody of the child on the ground that he has been acquitted in the criminal case, but the appeal against the said acquittal is still pending in this Court and the future fate of the respondent is still uncertain., Finally, it is stated that the child, who has been living with the appellants for more than eight years, has deep love and affection for them and is being well taken care of by the appellants. Uprooting the child now would cause tremendous trauma to the child who has already lost his mother. Furthermore, the appellants have never denied any access or visitation rights to the respondent. During the pendency of the guardianship petition, the respondent could have developed affection and taken custody; however, the respondent never came forward to avail the visitation rights. It is asserted that the respondent cannot claim custody of the child as a right merely because he is the natural father. He has neither any education nor any income to be able to ensure the welfare of the child., Reliance has been placed on the judgments in Ruchi Majoo v. MAT. Appeal (Family Court) 218/2018, Sanjeev Majoo (2011) 6 SCC 479, Anjali Kapoor v. Rajiv Baijal (2009) 7 SCC 322, Muthuswami Chettiar v. K.K. Chinna Muthuswami Moopanar AIR 1935 Mad 195, Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi 1992 (3) SCC 573, Yogesh Kumar Gupta v. M.K. Agarwal and Anr. AIR 2009 UTR 30, Nil Ran Kundu v. Abhijit Kundu 2008 AIR SCW 5769, A. Gopalan v. Thattoli Rajan ILR 1995 (1) Kerala 214 and Tarun Ranjan Majumdar and Another v. Siddhartha Datta AIR 1991 Cal 76 in support of the assertions., The appeal has been opposed by the respondent, who has asserted that he was arrested in a false case under Sections 498‑A, 304‑B and 34 of the Indian Penal Code on allegations of causing dowry death of his wife. However, from the trial, it has been established that his wife was suffering from mental ailments and had committed suicide. No role of culpability could be attributed to the respondent. Furthermore, custody of the child had been taken away from him merely because he was charged with a criminal offence. Nevertheless, as the natural father, he is best suited to ensure the welfare of the child, taking into account his circumstances and the appellants' old age. It is submitted that the guardianship petition filed by the appellants has been rightly dismissed., Submissions heard., The Guardians and Wards Act, 1890 deals with two aspects in regard to a minor child. The first aspect is the appointment/declaration of the guardian under Section 7 of the Guardians and Wards Act, 1890 and the second aspect is the interim and permanent custody of the child under Sections 12 and 25 respectively of the Guardians and Wards Act, 1890., The appointment of a guardian and the custody is defined under different sections of the Hindu Minority and Guardianship Act, 1956 and the Guardians and Wards Act, 1890, which delineate the factors to be considered for determining the guardianship and/or the custody, and the two rest on different parameters., Section 4 of the Hindu Minority and Guardianship Act, 1956 defines the minor and guardian as follows: (a) minor means a person who has not completed the age of eighteen years; (b) guardian means a person having the care of the person of a minor or of his property or of both his person and property, and includes (i) a natural guardian, (ii) a guardian appointed by the will of the minor’s father or mother, (iii) a guardian appointed or declared by a court, and (iv) a person empowered to act as such by or under any enactment relating to any court of wards. (c) natural guardian means any of the guardians mentioned in Section 6., Section 6 of the Hindu Minority and Guardianship Act, 1956 defines the natural guardian of a Hindu minor to be the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother., The proviso to Section 6 of the Hindu Minority and Guardianship Act, 1956 defines the circumstances in which a person would not be entitled to act as the natural guardian of a minor and reads as follows: Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section (a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi)., Section 7 of the Guardians and Wards Act, 1890 confers the powers on the Family Court to appoint a guardian of his person or property or both of the minor or declare a person to be such guardian., Therefore, there are two kinds of remedies visualized under Section 7 of the Guardians and Wards Act, 1890: a declaration, which is in recognition of a pre‑existing right of that person to be declared as a guardian, and an appointment, which entails no pre‑existing right in the person who has applied to be the guardian., The factors to be taken into consideration while appointing a guardian are explained in Section 17 of the Guardians and Wards Act, 1890, which reads as follows: (1) In appointing or declaring the guardian of a minor, the Family Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. In considering what will be for the welfare of the minor, the Family Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. If the minor is old enough to form an intelligent preference, the Family Court may consider that preference. The Family Court shall not appoint or declare any person to be a guardian against his will., From the conjoint reading of the Hindu Adoption and Maintenance Act, 1956 and the Guardians and Wards Act, 1890, it can be concluded that the natural father is the de‑facto and de‑jure guardian of a minor, but under the Guardians and Wards Act, 1890, if it is considered that it is in the interest and welfare of the child that some other person may be appointed as guardian, the Family Court may do so after considering the interest and welfare of the child and his intelligent preference. To appoint any person as a guardian, it follows as a precursor that the natural father who is the guardian of a minor in terms of the Hindu Adoption and Maintenance Act, 1956 shall not be disqualified unless he is found to be unfit to ensure the welfare of the child. The High Court of Madras in the case of N. Palanisami v. A. Palaniswamy 1998 (III) CTC 158 held: if there is any proof that the father has disentitled himself for the custody, that is altogether a different matter. When the Family Court considers the welfare of the minor child, it does not mean the opinion of the minor child. Normally when the minor child is brought to Family Court from the custody of a grandfather or third party especially when the minor child has been allowed to continue for quite some time in such custody, as a young child, his preference will be to continue the status quo but the Family Court has to consider the present and future of the minor child, not merely the close proximity of the child with the person having custody., Similarly, this Family Court in the case of Lekh Raj Kukreja v. Raymon AIR 1989 Del 246 held: Ordinarily custody should go to the natural guardian. However, there may be cases where there is a conflict in claim of the father as natural guardian of the male child and welfare of the child. Such cases are far and few. It is only in extreme cases of illiteracy, poverty or delinquency of the father that his claim to custody of the child can be disregarded. Otherwise the courts would strive to reconcile the claim of the father based on his right as natural guardian of the male child with the welfare of the child, the balance tilting in favor of the welfare of the child as being of paramount and supreme importance., In this backdrop, the respective case of the parties may be considered. Indisputably, the respondent is the natural father of the child who was born on 24 November 2008. The destiny had its own role to play and soon after the marriage, the wife of the respondent, mother of the child, died an unnatural death on 22 January 2010. While a criminal case under Sections 498‑A and 34 of the Indian Penal Code was registered on 22 January 2010 and the respondent along with other co‑accused, i.e., his family members, were put under arrest, the circumstances compelled the custody of the child, who was merely one year old at that time, to be handed over to the paternal uncle and aunt of the respondent. However, soon thereafter, the guardianship petition was filed by the maternal grandparents, who were naturally rattled by the untimely demise of their daughter and sought custody of the minor. During the trial, the child was produced by the paternal uncle and aunt before the Family Court and custody was handed over to the appellants, the maternal grandparents. There could not have been any better alternative considering the child in those difficult times; the custody of the child was given to his maternal grandparents rather than being in the custody of the relatives of the father. The respondent was admitted to bail on 26 September 2012 and immediately thereafter moved an application under Section 12 of the Guardians and Wards Act, 1890 to seek custody of the child. Considering the prevailing acrimony amongst the parties and also that the respondent was facing trial for the unnatural death of his wife and that the child was of a tender age and had been away from the custody of the respondent, he was granted visitation rights though apparently they were not meaningful or very fruitful in blossoming love and affection between the child and the respondent/father. The respondent was acquitted in the criminal case on 7 November 2012 but the matter has not ended as the appeal against the said acquittal is pending in this Court., In this backdrop, one needs to consider if the respondent has suffered any disqualification for losing the status of a natural guardian. Aside from a criminal trial, there is no other disqualification which has been brought on record. The other aspect that has been agitated is that he has since remarried and has a child from his second marriage; therefore, he cannot be termed as a natural guardian. However, mere second marriage of the father in the circumstances when he has lost his first wife cannot be held per se a disqualification from continuing to be a natural guardian. No circumstance whatsoever has been brought on record to disqualify the respondent from being a natural guardian. The learned Principal Judge of the Family Court has thus rightly denied the appellants/maternal grandparents to be appointed as the guardian of the minor., The second aspect, however, is the custody of the minor child. It is not denied that the child was about one year old when the appellants obtained his custody. Even though the respondent was released on bail on 26 September 2012 and was acquitted in the criminal case on 7 November 2012, his endeavour to develop affection with the child has not yielded much result. The child, since infancy, has been in custody of the appellants. When we interacted with the child in the Chamber, who is now about fifteen years of age, he revealed that he felt alienated from the father and was comfortable in the custody of the appellants and was being well looked after by them., It may be observed that undeniably there can be no substitute to the affection of a natural parent. No doubt, the maternal grandparents may have immense love and affection towards the child, but it cannot substitute the love and affection of a natural parent. Even the disparity in the financial status cannot be a relevant factor for denying custody of a child to the natural parent. However, in matters of guardianship and custody, we are confronted with the dilemma where logic may say that the child must be in the custody of his father, but the circumstances and the intelligent preference of the child point otherwise. It may not be in the interest and welfare of the child to uproot him from the family where he is happily entrenched since the age of one year., The Honorable Apex Court in the case of Lahari Sakhamuri v. Sobhan Kodali, Civil Appeal Nos. 3135‑316/2019 (arising out of Special Leave Petition (Civil) Nos. 15892‑15893/2018), held that divorce and custody battles can become a quagmire and it is heart‑rending to see that the innocent child is the ultimate sufferer who gets caught up in the legal and psychological battle between the parents. The eventful agreement about custody may often be a reflection of the parents’ interests rather than the child’s. The issue in a child custody dispute is what will become of the child, but ordinarily the child is not a true participant in the process. While the best interests principle requires that the primary focus be on the interests of the child, the child ordinarily does not define those interests himself or have representation in the ordinary sense., The learned Principal Judge of the Family Court, while giving a definite finding of denying the claim of the appellants to be appointed as guardian, has unfortunately not considered the aspect of custody while dismissing the petition of the appellants.
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In the backdrop as discussed above, it is not considered in the interest and welfare of the child to uproot him completely at this stage, yet, as already discussed above, there can be no substitute to the parental love and affection and thus, it is considered appropriate that initially limited visitation rights be given to the respondent which may be revisited after one year on the application of the respondent/father of the child if the circumstances so justify. We therefore direct that the respondent/father shall have a right to meet the child on every first and third Saturday in the Children Room of the Family Court, Karkardooma Court, Delhi between 3 to 5 P.M. In case the child is unable to come for visitation right on any Saturday, the meeting shall be held on the next working Saturday. The said arrangement shall continue for a period of three months from today, thereafter, timings shall be from 03:00 P.M. to 07:00 P.M. till further orders. However, the parties shall be at liberty to adjust the timings dependent upon the suitability of both the parties., With these observations, we dismiss the appeal for appointment of the appellants as Guardian but modify the impugned judgment in regard to matrimonial. Application (Family Court) 218/2018 Page 18 of 18 the custody in the aforesaid terms. The appeal along with pending applications is disposed of accordingly.
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Reserved on : 16.8.2022 Delivered on : 02.9.2022 Criminal Appeal No. 652 of 2022 Reena Joyce Mary Appellant versus State represented by Deputy Superintendent of Police, Q Branch CID, Dharmapuri, Uthangarai Police Station Crime Nos. 1004/02, 1005/02, 1006/02 and Kallavi Police Station Crime No. 434/02 Respondent. Criminal Appeal filed under Section 34 of the Prevention of Terrorism Act, 2002 to set aside the order dated 31 October 2019 in Criminal Miscellaneous Petition No. 313 of 2019 in Special Criminal Court No. 5 of 2003 on the file of the Special Court under the Prevention of Terrorism Act, Sessions Court for Exclusive Trial of Bomb Blast Cases, Poonamallee, Chennai and enlarge the appellant on bail. For Appellant: Mr. R. Sankarasubbu. For Respondent: Mr. Babu Muthumeeran, Additional Public Prosecutor., The Criminal Appeal seeks to set aside the order dated 31 October 2019 in Criminal Miscellaneous Petition No. 313 of 2019 in Special Criminal Court No. 5 of 2003 on the file of the Special Court under the Prevention of Terrorism Act, Sessions Court for Exclusive Trial of Bomb Blast Cases, Poonamallee, Chennai and enlarge the appellant on bail. The appellant is listed as A28 in Special Criminal Court No. 5 of 2003. She has filed the present Criminal Appeal against denial of bail by the Special Court., On receipt of information on 23 November 2002, the Inspector of Police heading a team of Naxalite Special Duty Wing, Dharmapuri District conducted searches at various places on different dates. After enquiry, explosive substances were seized and a exchange of fire occurred, leading to the arrest of a set of persons identified as Maoist. Consequently, cases were registered in Crime Nos. 1004/02, 1005/02, 1006/02 on the file of Uthangarai Police Station and Crime No. 434/02 on the file of Kallavi Police Station. The Deputy Superintendent of Police, CID Branch, Coimbatore, investigated and filed charge sheets under Sections 148, 333, 307, 333 read with 149 of the Indian Penal Code and Section 120B read with 3(2)(b), 3(3), 3(5), 4(b) and 22(1) of the Prevention of Terrorism Act, 2002, and Section 25(1B)(a) of the Arms Act, 1959. The case was taken on file in Special Criminal Court No. 5 of 2003., The appellant, being one of the accused, had previously sought bail from the Special Court. She filed Criminal Appeal No. 1909 of 2003 before this Court and obtained bail by order dated 28 April 2005, and was released on bail on 5 May 2005. Subsequently, the appellant violated bail conditions by failing to appear before the court after 16 November 2007. A Non-Bailable Warrant was issued against her on 23 March 2009. After extensive searches by special teams, the appellant was arrested on 21 July 2016 by the Kancheepuram Q Branch Police in Crime No. 1 of 2016 and produced before the Special Court on 30 August 2016 under a POTA warrant and remanded to judicial custody. The bail cancellation petition in Criminal Miscellaneous Petition No. 3632 of 2016 in Criminal Appeal No. 335 of 2004 filed by the prosecution was allowed on 23 January 2017., Thereafter, the appellant filed a petition seeking bail in Criminal Miscellaneous Petition No. 313 of 2019 in Special Criminal Court No. 5 of 2003, which was dismissed by the Special Court. Aggrieved, the present Criminal Appeal has been filed., Learned counsel Mr. R. Sankarasubbu, appearing for the appellant, submits that the Special Court erred in dismissing the bail petition mechanically by relying on the dismissal of a co‑accused named Chandra and without considering that there is no evidence to detain the appellant. He emphasizes that the appellant is a woman social worker fighting for the cause of the poor, downtrodden and neglected persons and has been victimised. He points out that the appellant has been in incarceration for more than six years since 21 July 2016 and the trial is unlikely to conclude soon, a circumstance not attributable to her. He further states that the appellant was not produced before the Special Court on several occasions and her remand was extended mechanically. He notes that the only allegation against her is that she was found in a mango grove undergoing karate training and there is no allegation of involvement in terrorist activities. Relying on the decision in Shaheen Welfare Association versus Union of India and others (1996 (2) SCC 616), he submits that the appellant falls within category C of prisoners as described in that decision. He also submits that the appellant is about 45 years old, lives in absolute penury, was arrested while working in a quarry, has reformed, renounced her Maoist ideology, and is prepared to file an affidavit of undertaking renouncing her belief and owing faith and allegiance to the Constitution of India. He is prepared to abide by any stringent conditions imposed by this Court and to cooperate for a speedy trial. He further submits that a co‑accused named Sathya Mary alias Padma was granted bail by this Court on 3 February 2022 in Criminal Application No. 417 of 2021, and therefore prays for setting aside the order of dismissal of bail., The learned Additional Public Prosecutor, Mr. Babu Muthumeeran, submits that initially the appellant, along with four other accused, was granted bail by this Court on 28 April 2005 in Criminal Appeal No. 335 of 2004 with a condition to appear before the Special Court daily at 10.30 a.m., and later by order dated 6 September 2006 in Criminal Miscellaneous Petition Nos. 4170 to 4172 of 2006 the condition was relaxed to appearance only on hearing dates. The appellant failed to appear from 16 November 2007 and continued to indulge in organisational terrorist activities, resulting in further criminal cases against her, namely: Crime No. 111 of 2008 (Kodaikanal Police Station), Crime No. 7 of 2014 (Pothukal Police Station, Kerala), Crime No. 51 of 2015 (Vazhikadavu Police Station, Kerala), Crime No. 1229 of 2015 (Mannarkad Police Station, Kerala), and Crime No. 1 of 2016 (Kancheepuram, Q Branch). The Special Court issued a Non-Bailable Warrant on 23 March 2009; after a prolonged search, she was arrested on 21 July 2016 and produced before the Special Court on 30 August 2016 through a POTA warrant and remanded to judicial custody. This Court also cancelled the bail granted to her on 23 January 2017 in Criminal Miscellaneous Petition No. 3632 of 2016 in Criminal Appeal No. 335 of 2004. The non‑production of the appellant before the Special Court on certain occasions has been properly explained and cannot be construed as a ground for grant of bail. There is ample evidence against the appellant. She absconded in contravention of the High Court’s observation while granting bail that there was no reason to hold that these women accused would flee from justice. Therefore, if bail is now granted, there is a possibility that she may abscond again, delaying the trial. The appellant’s nine‑year abscondence has already caused sufficient delay, and she cannot claim the trial delay or her long incarceration as a ground for bail. The co‑accused Sathya Mary alias Padma was granted bail considering her health condition and voluntary surrender, which is not comparable to the appellant who was arrested after a long and difficult search. If the appellant is released on bail, there is a risk that she may go underground, tamper with witnesses and hamper trial proceedings; consequently, the Criminal Appeal should be dismissed., In reply, counsel for the appellant submits that in the case registered by Kodaikanal Police Station, the appellant has been acquitted, and except for the case registered by Kanchipuram Police Station, she has been granted bail in all other cases in Tamil Nadu and Kerala. He reiterates that the appellant is a lady living in penury, and due to her age, health issues and long incarceration she is suffering. He states that she has decided to renounce her Maoist ideology. He argues that the appellant cannot be held responsible for the delay in trial and should not be blamed for tactics adopted by other accused. He further submits that the appellant has been in prison for the past six years, and the prospect of an early trial is bleak; therefore, the period of long incarceration and trial delay may be considered for grant of bail. He relies on the recent decision of the Supreme Court of India in Satender Kumar Antil versus CBI & Another (2022) SCC OnLine SC 825., The Court heard counsel for both parties and perused the material on record. The prosecution contends that the appellant is a member of a Maoist group and a potential threat to society, having violated bail conditions and absconded for about nine years, and therefore does not deserve sympathy. The appellant contends that she is a woman fighting for the cause of the poor, downtrodden and neglected, has been victimised, has been in long incarceration without progress in trial, has renounced her Maoist ideology, and falls within category C of prisoners as classified by the Supreme Court of India in Shaheen Welfare Association versus Union of India (1996 (2) SCC 616). She is prepared to swear an affidavit of faith and allegiance to the Constitution of India., The Supreme Court in Shaheen Welfare Association classified prisoners facing terrorism charges into four categories for the purpose of grant of bail: (a) hardcore under‑trials whose release would prejudice the prosecution case and may be a menace to society and witnesses; (b) other under‑trials whose overt acts directly attract Sections 3 and/or 4 of the Prevention of Terrorism Act; (c) under‑trials roped in by virtue of Section 120B or 147 of the Indian Penal Code; and (d) under‑trials found possessing incriminating articles in notified areas and booked under Section 5 of the Prevention of Terrorism Act., In Special Criminal Court No. 5 of 2003, there are 219 witnesses. The trial Court, by order dated 4 December 2015 in Disposition No. 689 of 2015, fixed the schedule to commence trial on 20 January 2016 and to complete the trial within 52 hearings ending on 4 April 2016. However, other accused have been filing various petitions, causing delays not attributable to the appellant. The case against the appellant is that she was found engaged in karate training and has not been involved in any violent activity; there is no recovery from her, and her case falls within category C as classified in Shaheen Welfare Association., The Supreme Court of India in Satender Kumar Antil versus CBI & Another (2022) SCC OnLine SC 825 observed that prolonged incarceration due to trial delay violates Article 21 of the Constitution. It held that courts must continue proceedings on a day‑to‑day basis, avoid unnecessary adjournments, and consider delay not caused by the accused as a factor for bail, notwithstanding the provisions of Section 436A of the Code of Criminal Procedure., Considering the allegations against the appellant, her period of incarceration since re‑arrest in 2016, the delay in trial, and the undertaking she is willing to give to file a sworn affidavit reaffirming her allegiance to the Constitution of India and renouncing her Maoist ideology, the Court is of the opinion that the appeal may be allowed and the appellant may be granted bail subject to certain stringent conditions., The Criminal Appeal is allowed and the order dated 31 October 2019 passed by the Special Court under the Prevention of Terrorism Act, Sessions Court for Exclusive Trial of Bomb Blast Cases, Poonamallee, Chennai 600056 in Criminal Miscellaneous Petition No. 313 of 2019 in Special Criminal Court No. 5 of 2003 is set aside., The appellant shall file a sworn affidavit affixing her signature and thumb impression before the trial Judge stating: (i) that she owes faith and allegiance to the Constitution of India and does not believe in Maoism; (ii) that she does not believe in violence as an ideology; and (iii) that she will do nothing to subvert the Constitution of India. Upon filing such affidavit before the Special Court, the appellant shall be enlarged on bail subject to the following conditions: (a) execution of a bond for a sum of Rs. 25,000 (Rupees twenty‑five thousand only) with two sureties each for a like sum to the satisfaction of the Special Court under the Prevention of Terrorism Act, Sessions Court for Exclusive Trial of Bomb Blast Cases, Poonamallee, Chennai; (b) one surety shall be a Government surety; (c) the sureties shall affix their photographs and left thumb impression in the surety bond and the learned Judge may obtain a copy of their Aadhaar card or bank passbook to verify identity; (d) the appellant shall report before the Special Court on all hearing dates and before the Q Branch Police, Kamaraj Salai, Chennai‑600004, every Sunday at 10.30 a.m. until completion of trial in Special Criminal Court No. 5 of 2003 (if the appellant has to appear before any other court, she must intimate the Special Court in advance); (e) if the appellant wishes to leave the State of Tamil Nadu for any emergency such as treatment, hospitalization or death of close relatives, she shall intimate the jurisdictional police with details of place of visit, name and mobile number of contact person, Aadhaar card or other photo identity of that person, reasons and duration of absence before leaving Tamil Nadu; (f) the appellant shall not commit any offence; (g) the appellant shall not abscond during trial; (h) the appellant shall not tamper with evidence or witnesses; (i) the appellant shall furnish her mobile number, which shall not be changed until the trial concludes, though she may change the device; (j) the appellant shall furnish her permanent address and inform the trial Court and the respondent of any change; (k) on breach of any condition, the Special Court may take appropriate action as per law, including revocation of bail, in accordance with the judgment of the Supreme Court of India in P. K. Shaji versus State of Kerala (2005) AIR SCW 5560; (l) if the appellant thereafter absconds, a fresh FIR may be registered under Section 229A of the Indian Penal Code; (m) the Special Court shall proceed with the trial on a day‑to‑day basis in accordance with the guidelines in Vinod Kumar versus State of Punjab (AIR 2015 SC 1206), and the trial shall not be adjourned beyond seven working days at any point; (n) if the appellant adopts dilatory tactics, the Special Court may remand her to custody as laid down in the judgment of the Supreme Court of India in State of Uttar Pradesh versus Shambhu Nath Singh (JT 2001 (4) SC 319)., The observations and findings recorded in this judgment are only for the limited purpose of considering the application for bail and the Special Court shall not be influenced by the same during the trial or while rendering its decision.
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Ishika Patnaik, Petitioner, National Law University of Odisha and Others, Opposite parties. 20 October 2020. In view of the extraordinary situation arising out of the COVID-19 lockdown, the matter is taken up through video conferencing., Heard Mister B. Routray, Learned Senior Counsel for the petitioner and Mister Prafulla Kumar Rath, Learned Counsel for opposite parties No. 1 and 2., By way of this Writ Petition, the petitioner has challenged the inaction of opposite party No. 1 in not considering the application of the petitioner for admission into the five‑year B.B.A. LL.B. (Honours) course under the Non‑Resident Indian Sponsored (NRIS) category for the academic year commencing 2020., The grievance of the petitioner is that she applied for the entrance examination Common Law Admission Test (CLAT) conducted by opposite party No. 1. The petitioner wanted to apply under the NRI Sponsored quota category and accordingly applied through the online form. Due to the COVID outbreak at the residence of the petitioner, she was unable to click/select the option for NRI/NRIS category and selected the option for General Category. The petitioner logged onto the website on 15 August 2020 to make modification but the portal took a long time to open and she failed to upload and confirm the changes., The CLAT 2020 Notification allowed all candidates to fill up the online form for seeking admission into the B.A. LL.B. and B.B.A. LL.B. five‑year integrated law programmes under different National Law Universities and the last date to amend and modify the application form online was 15 August 2020 midnight. It was also instructed that the information once furnished by the candidates with regard to the category to which the candidates belong, the preference for NLU and the centre of the entrance test submitted by the candidates through online application mode shall be final and no change shall be allowed under any circumstances., Learned counsel for the petitioner further submitted that the petitioner tried to modify her category from General to NRI/NRIS category but could not do so due to a technical error in the CLAT website. It is also submitted that in the meantime, the CLAT exam was held and the petitioner appeared in the exam. The merit list has been published by the opposite party and the petitioner’s name was not found in the merit list where candidates with lower rank than that of the petitioner were in the merit list as against NRI/NRIS category. Having not found her name in the merit list of the NRI/NRIS category, the petitioner wrote a request letter to the Vice‑Chancellor, National Law University Odisha who forwarded it to opposite party No. 2 – Consortium of National Law Universities but she was disappointed as her request was not considered., From the perusal of records and submissions of Learned Counsel of opposite party No. 1, it reveals that the petitioner has not applied under NRI/NRIS category for the CLAT 2020 application in spite of several extensions granted to the students by the CLAT Consortium. The petitioner sent mail to the Vice‑Chancellor of National Law University, Odisha and the Consortium of NLUs on 17 August 2020 indicating that due to some technical glitch, she was not able to tick the NRI/NRIS category. There is always a possibility of server down, internet glitch etc., and therefore, it has been advised by the CLAT conducting authority that candidates must apply well before the last date because there tends to be heavy rush on the use of internet on the last date., The opposite party No. 1 is bound by the CLAT Rules and Notification. If the petitioner fails to figure in the CLAT 2020 NRI/NRIS category, opposite party No. 1 cannot change the category of the candidate. Since the petitioner has not applied under NRI/NRIS category in the CLAT 2020 application, the opposite party No. 1 had to reject the candidate’s application. Based on the applications received, the merit list was prepared and uploaded on the website along with the wait‑listed candidates. The entire process has been done in a transparent manner and strictly based on merit. Changing the category at this juncture when the admissions are over would disturb the entire process and jeopardise the interest of many students. All the deadlines and schedules of counselling were prepared following the direction of the Supreme Court that the admission must be finished by 15 August 2020., Mister Prafulla Kumar Rath, Learned Counsel for the opposite parties, further submitted that there are 21 seats under the FN/NRI/NRIS category. As per the merit list published, opposite party No. 1 has already selected 21 candidates. So, it is not possible for opposite parties No. 1 and 2 to consider the candidature of the petitioner any further as she has not applied under NRI/NRIS category., Considering the submissions of the learned counsel for the parties, the High Court disposes of the writ petition with the observation that since all the seats under the NRI/NRIS category have already been filled up by opposite party No. 1 and no further seats are available, we are not inclined to entertain the writ petition., Before parting with this case, we are constrained to observe that the NRIS category is an affront to the meritorious candidates who toiled day and night to secure seats in NLUs through CLAT. The candidates belonging to the NRI/NRIS category, who are very low ranked in the merit list, often get a seat in the NLUs whereas the general candidates having secured better marks also lag behind the NRIS students and get disappointed. This is like the reservation for the elite class and this dubious category of quota is unconstitutional. The eligibility and selection under this category are unregulated, illegal and arbitrary. Even the apex court has observed in P. A. Inamdar versus State of Maharashtra that admissions under this category are given to less meritorious students just because they could afford to pay the higher fees demanded by the University. The Consortium of NLUs, the Bar Council of India and all the stakeholders involved in the process should revisit the so‑called NRIS quota and prepare a proper regulation and system while implementing this quota. Several studies reveal that the selection process under this NRIS quota is quite vague, undefined and is based on inconsistent parameters. The High Court calls upon the relevant stakeholders especially the Bar Council of India, which is mandated to regulate legal education in this country, to ensure that uniform and well‑defined parameters are adopted so that the meritorious candidates do not suffer. The elitist approach to the selected group in CLAT admission process must be restricted. It is imperative that this issue needs to be settled within the shortest possible time to assuage the pains of the unselected due to poor rank., Accordingly, the writ petition is dismissed., Free copies of the order be sent to the Chairman, Bar Council of India, Convener, Consortium of NLUs., As the lockdown period is continuing for COVID-19, learned counsel for the petitioner may utilize the soft copy of this order available on the High Court’s website or print out thereof as certified copies in the manner prescribed, vide the High Court’s Notice No. 4587 dated 25 March 2020.
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This judgment is enriched by the discussions with my distinguished colleagues – Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice Bhushan R Gavai and Justice Surya Kant – during the course of oral arguments and thereafter. Their inputs to the judgment have led to a synthesis of thought resulting in a unanimous outcome. We record our deep appreciation for the scholarship of senior counsel during the course of arguments and in the written briefs, assisted by an able team of junior counsel., Article 370 of the Constitution of India incorporated special arrangements for the governance of the State of Jammu and Kashmir. The President issued Constitutional Orders 272 and 273 during the subsistence of a Proclamation under Article 356(1)(b). These orders have the effect of applying the entire Constitution of India to the State of Jammu and Kashmir and abrogating Article 370. Contemporaneously, Parliament enacted the Jammu and Kashmir Reorganisation Act 2019 which bifurcated the State into two Union territories. The petitioners have challenged the constitutionality of these actions., The State government in Jammu and Kashmir was formed by an alliance of the Peoples Democratic Party with the Bharatiya Janata Party in 2015. The Chief Minister of the State, Ms Mehbooba Mufti, belonging to the PDP, resigned on 19 June 2018 after the Bharatiya Janata Party withdrew support. The next day, the Governor issued a Proclamation under Section 92 of the Constitution of Jammu and Kashmir, which entrusts power to the Governor to assume all the powers and functions of the Government of the State in the event of a failure of the constitutional machinery in the State. A Proclamation under Section 92 requires the concurrence of the President of India under clause (5). Under clause (3) of Section 92, the Proclamation ceases to exist after six months. The promulgation of Governor's rule in the State was made with the concurrence of the President. On 21 November 2018, the Governor dissolved the Legislative Assembly of the State under Section 53(2) of the Constitution of Jammu and Kashmir., On 28 November 2018, the Governor submitted a report to the President recommending the invocation of Article 356 of the Constitution since six months since the issuance of the Proclamation under Section 92(3) was to end. On 19 December 2018, the President issued a Proclamation under Article 356 promulgating President's rule in the State upon considering the report from the Governor of Jammu and Kashmir and other information. The Proclamation, inter alia, contained the following declarations: (a) The functions of the Government of the State and the powers vested in or exercisable by the Governor of that State under the Constitution of India and the State Constitution are assumed by the President; (b) The powers of the Legislature of the State shall be exercisable by or under the authority of Parliament; and (c) The first proviso and second provisos to Article 3 of the Constitution stand suspended., The Proclamation was approved by the Lok Sabha on 28 December 2018 and by the Rajya Sabha on 3 January 2019. On the same day, the President issued another order stating that the functions of the Government of the State and the powers vested in the Governor which shall be exercisable by the President in view of the above Proclamation shall be exercisable also by the Governor subject to the superintendence, direction, and control of the President., The extension of President's rule was approved by the Lok Sabha on 28 June 2019 and by the Rajya Sabha on 1 July 2019. President's rule was extended on 3 July 2019. The duration of President's rule in terms of Article 356(4) in its application to the State of Jammu and Kashmir was six months after the second of the resolutions was passed by the Rajya Sabha on 3 July 2019., On 5 August 2019, the President issued Constitution Order 272, the Constitution (Application to Jammu and Kashmir) Order 2019. By the order, the President in exercise of powers under Article 370(1) applied: (a) All the provisions of the Constitution of India by superseding all previous Constitution Orders by which select provisions of the Constitution were made applicable to Jammu and Kashmir either with or without modifications; and (b) Article 367(4) in which a modification was made, changing the term Constituent Assembly in the proviso to Article 370(3) to Legislative Assembly., On 5 August 2019, Parliament, acting as the legislature of the State since the Proclamation under Article 356 was subsisting, recommended to the President under Article 370(3) that all clauses of Article 370 shall cease to operate. The Rajya Sabha also expressed its views on the Jammu and Kashmir Reorganisation Bill 2019 which was sent to the House under the proviso to Article 3, resolving to accept the Bill. Simultaneously, the Lok Sabha accepted the Jammu and Kashmir Reorganisation Bill 2019 in terms of a resolution. The Rajya Sabha subsequently passed the Jammu and Kashmir Reorganisation Act., On 6 August 2019, Parliament discharged its functions as the legislature of the State of Jammu and Kashmir and proceeded with the following legislative business: The Lok Sabha recommended to the President under Article 370(3) that the special provision in Article 370 shall cease to be operative and that all provisions of the Constitution shall apply to the State of Jammu and Kashmir without any modifications or exceptions. The Lok Sabha passed the Reorganisation Act., Both Houses of Parliament passed the Reorganisation Bill, after expressing their views in favour of such an exercise as stipulated in the proviso to Article 3, bifurcating the State of Jammu and Kashmir into: (a) the Union Territory of Jammu and Kashmir with a Legislative Assembly; and (b) the Union Territory of Ladakh without a Legislative Assembly., The Appendix to the Reorganisation Bill contained a Schedule listing central legislations enacted under the Union List and the Concurrent List by Parliament which would thereafter be applicable to the two Union Territories. Amendments have also been carried out to existing state legislations to bring them in conformity with the Constitution., On 6 August 2019, pursuant to the recommendation by the Lok Sabha, the President of India issued Constitution Order 273 under Article 370(3) of the Constitution as amended by Constitution Order 272, by which Article 370 ceased to apply with effect from 6 August 2019. On 9 August 2019, the Union Ministry of Home Affairs issued a notification, Statutory Order 2889 (E), in exercise of the powers conferred by Section 2(a) of the Reorganisation Act bringing the provisions of the Act into force with effect from 31 October 2019 following Presidential assent. Pursuant to this notification, the State of Jammu and Kashmir stood bifurcated on 31 October 2019 into the Union Territory of Ladakh and the Union Territory of Jammu and Kashmir. President's rule was revoked., On 19 August 2019, the jurisdiction of the Supreme Court of India was invoked under Article 32 of the Constitution in Dr Shah Faesal v. Union of India., When a batch of petitions challenging the constitutional validity of Constitution Orders 272 and 273 came before a Constitution Bench, the petitioners sought a reference to a larger bench. The submission was that in Prem Nath Kaul v. State of Jammu and Kashmir, a Constitution Bench had held that Article 370 was temporary in nature. According to counsel, subsequently in Sampat Prakash v. State of Jammu and Kashmir, another Constitution Bench held that Article 370 is not a temporary provision because: (a) Neither the Constituent Assembly of Jammu and Kashmir nor the President had ever made a declaration that Article 370 ceased to be operative; and (b) In view of the proviso to Article 368 as it applied to Jammu and Kashmir, the President is required to exercise powers from time to time under Article 370 to bring into effect constitutional amendments made under Article 368 in the State of Jammu and Kashmir., A reference to a larger Bench was also sought on the ground that the subsequent decision of the Constitution Bench in Mohd Maqbool Damnoo v. State of Jammu and Kashmir ignored the interpretation of Article 370 in Prem Nath Kaul and, in any event, the judgment does not decide whether Article 370 can continue to operate after the Constitution of Jammu and Kashmir was adopted. The Constitution Bench in Dr Shah Faesal framed three questions: (i) When can a matter be referred to a larger Bench? (ii) Whether there is a requirement to refer the present matter to a larger Bench in view of the alleged contradictory views of this Court in Prem Nath Kaul case and Sampat Prakash case? (iii) Whether Sampat Prakash case is per incuriam for not taking into consideration the decision of the Court in Prem Nath Kaul case?, The Constitution Bench, while rejecting the plea for a reference to a larger Bench, adduced three reasons: First, judgments cannot be interpreted in a vacuum, separate from their facts and context. Observations made in a judgment cannot be selectively picked in order to give them a particular meaning. The Court in Prem Nath Kaul had to determine the legislative competence of the Yuvaraj in passing a particular enactment. The enactment was passed during the interregnum period, before the formulation of the Constitution of the State of Jammu and Kashmir, but after the coming into force of the Constitution of India. The observations made by the Constitution Bench regarding the importance given to the decision of the Constituent Assembly of the State of Jammu and Kashmir need to be read in the light of these facts. Second, the framework of Article 370(2) of the Indian Constitution was such that any decision taken by the State Government, which was not an elected body but the Maharaja of the State acting on the advice of the Council of Ministers which was in office by virtue of the Maharaja's proclamation dated 5-3-1948, prior to the sitting of the Constituent Assembly of the State, would have to be placed before the Constituent Assembly for its decision as provided under Article 370(2). The rationale for the same is clear, as the task of the Constituent Assembly was to further clarify the scope and ambit of the constitutional relationship between the Union of India and the State of Jammu and Kashmir, on which the State Government as defined under Article 370 might have already taken some decisions before the convening of the Constituent Assembly, which the Constituent Assembly in its wisdom might ultimately not agree with. Hence, the Court indicated that the Constituent Assembly's decision under Article 370(2) was final. This finality is limited to those decisions taken by the State Government under Article 370 prior to the convening of the Constituent Assembly of the State, in line with the language of Article 370(2). Third, the Constitution Bench in Prem Nath Kaul did not discuss the continuation or cessation of the operation of Article 370 of the Constitution after the dissolution of the Constituent Assembly of the State. This was not an issue before the Court, unlike in Sampat Prakash where the contention was specifically made and refuted by the Court. This Court sees no reason to read into Prem Nath Kaul an interpretation which results in it being in conflict with the subsequent judgments of this Court, particularly when an ordinary reading of the judgment does not result in such an interpretation., Mr Kapil Sibal, Dr Gopal Subramanium, Mr Zafar A Shah, Dr Rajeev Dhavan, Mr Dushyant Dave, Mr Shekar Naphade, Mr Dinesh Dwivedi, Mr C U Singh, Mr Sanjay Parikh, Mr P C Sen, Ms Nitya Ramakrishnan, Dr Menaka Guruswamy, Mr Muzaffar H Baig, and Mr Gopal Sankaranarayanan appeared for the petitioners. Mr Manish Tiwari and Mr Warisha Farasat also appeared for the petitioners. Mr Irfan Hafeez Lone and Dr Zahoor Ahmad Bhat were the parties in person., Mr R Venkataramani, Attorney General, Mr Tushar Mehta, Solicitor General; Mr Harish Salve, Mr Rakesh Dwivedi and Mr V Giri, Mr Mahesh Jethmalani, Mr Gurukrishna Kumar, Mr Ravindra Kumar Raizada, Mr Bimal Jod, senior counsel; Mr K M Nataraj and Vikramjit Banerjee, Additional Solicitor Generals appeared on behalf of the respondents. Mr Kanu Agrawal, Ms Archana Pathak Dave, Mr V K Biju, Mr Vikram Sharma, Dr Aniruddha Rajput, Mr D V Raina, Mr Rahul Tanwani, Mr Eklavya Dwivedi, Mr Rajesh Bhushan, and Dr Charu Mathur also appeared for the respondents., The Governor's Proclamation under Section 92 of the Constitution of Jammu and Kashmir dated 20 June 2018 is challenged as being void. The mandatory pre‑condition of the satisfaction of the Governor that the State government cannot be carried out in accordance with the provisions of the Constitution was not fulfilled. It was a political act, in violation of the Constitution, brought about with the intention to ultimately abrogate Article 370. Governor's rule was imposed on 20 June 2018, a day after the Bharatiya Janata Party withdrew from the coalition on 19 June 2019. No opportunity was afforded to the other parties to demonstrate strength in the house. Other parties – the Congress, the PDP and the National Conference – expressed willingness to form a coalition. It was incumbent upon the Governor to reach out to the parties and explore the possibilities of forming a government., Section 92 of the Jammu and Kashmir Constitution envisages a mandatory maximum period of six months of Governor's rule, which cannot be extended any further. Successive imposition of President's rule after Governor's rule defeats the scheme of Section 92 and amounts to a fraud on the Jammu and Kashmir Constitution and the Constitution of India. The manner in which the Union Government has acted and the decisions of the Governor and the President were all political stratagems to achieve outcomes that are unconstitutional., The President's Proclamation under Article 356 dated 19 December 2018 is void ab initio for the following reasons: (a) After the Proclamation under Section 92, the Proclamation under Article 356 was issued by the President without basis as the report of the Governor showing the failure of constitutional machinery was not placed before Parliament; the debates in the Lok Sabha and the Rajya Sabha show that the motion approving the Proclamation was passed without debate and without the Governor's report; (b) A unilateral exercise of the powers under Article 356 sets a dangerous precedent and raises the apprehension that such a treatment can be extended to any other state of the country in the exercise of emergency powers under the Constitution. It renders the federal structure susceptible to the whims of the political party in power and can be used to undermine the special provisions under the Constitution designated for the special interests of the North‑Eastern States of India., The impugned actions taken when the Proclamation issued under Article 356 was in force are void. There are limits on the exercise of power by the President after the issuance of a Proclamation for the following reasons: (a) Once the Legislative Assembly of the State is dissolved, as was the case after the Proclamation of Governor's rule, there was no occasion for the President to exercise the power under Article 356. This renders the Proclamation dated 19 December 2018 and all consequential actions, the impugned Constitution Orders and suspension of the second proviso to Article 3 applicable to the State of Jammu and Kashmir void ab initio; (b) The purpose of Article 356 is to restore governance in the State. Article 356 is housed in Part XVIII of the Constitution of India, which deals with Emergency provisions. The President must be satisfied that the government cannot be carried out in accordance with this Constitution. The object of the exercise is to ensure that constitutional government is possible in the state; (c) Article 357(2) stipulates that the laws made by the President or the Parliament, in the exercise of the power of the state legislature, shall continue, after the Proclamation has ceased to operate, until altered or repealed by a competent Legislature or other authority. These words presume the power of the restored legislature to alter or undo the changes made by the Union in respect of the State's affairs. Article 357(2) allows the subsequent State Legislature to alter or repeal any laws made by the Parliament in the exercise of such powers. Thus, the Parliament cannot make irreversible changes in the exercise of this temporary power during the Proclamation under Article 356; (d) Article 250(2) states that laws shall cease to have effect after six months from the date when the Proclamation ceases to operate. Considering the restorative purpose and the temporary nature of the power, the President could not have, in the exercise of this power, effected a permanent change to the Constitution by way of the impugned actions; (e) In accordance with Article 356(1), the power of the Legislature and the Executive of the State are transferred to the Parliament and the President respectively. However, Article 356 does not envisage a transfer of the constituent power to the President or to Parliament. Constituent power cannot be transferred unless the Constitution of Jammu and Kashmir specifically provides for it. The President does not acquire the power of the State Government under Article 370(1)(d) to give concurrence, and Parliament does not acquire the constituent powers of the Legislative Assembly to recommend a Presidential notification under Article 370(3); (f) This Court in Krishna Kumar Singh v. State of Bihar has held that the President's ordinance‑making power cannot be treated as a constitutional equivalent of ordinary legislative power, notwithstanding a deeming provision which confers the same force and effect on it. Similarly, the functions of the Union executive or legislature cannot be treated as constitutional equivalents of the powers of the state executive or legislature, due to a democratic deficit; (g) Articles 75 and 164 of the Constitution stipulate that the Council of Ministers is collectively responsible to the Legislature. The State Legislature is vested with certain non‑legislative functions such as questions and debates. Such non‑legislative functions vested in the State Legislature cannot be exercised by Parliament during President's rule. The will of the people finds no expression in the purported concurrence of the State Government, essentially the Governor, since there was no Council of Ministers in place. Thus, the Constitution Orders are undemocratic for want of public will and public reason., Article 370 must be interpreted keeping in mind the following principles: (a) Article 370 envisages three modes of cooperation between the Union and the State of Jammu and Kashmir: the lowest degree is under the first proviso to Article 370(1)(d) where only consultation with the State Government is required; the second degree is under Article 370(1)(b)(ii) and the second proviso to Article 370(1)(d), where consent of the Government of the State is required; and the highest degree is under Article 370(3) where the recommendation of the Constituent Assembly of Jammu and Kashmir is required; (b) Article 370 must be interpreted in the context of three pillars namely asymmetric federalism, autonomy, and consent. Asymmetric federalism, that is differential rights to certain federal sub‑units, is a part of the Indian federal scheme. It is a part of the basic structure, as is federalism; (c) Article 370 reflects the agreement between two contracting parties namely the acceding State of Jammu and Kashmir and the Dominion of India, under which the Constituent Assembly of Jammu and Kashmir was given the power to finally determine the state's affiliation to the Union and its limits.
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Once this relationship was crystallised by the Constitution of the State, there was no scope of change, since the Constituent Assembly, solely empowered to change the relationship, ceased to exist; and Article 370 recognised the constituent power of the people of the State of Jammu and Kashmir, articulated through the Constituent Assembly of Jammu and Kashmir or otherwise, to make or remake the Constitution of the state, subject to Article 1 of the Constitution of India. The marginal note to Article 370 and the placement of the provision in Part XXI of the Constitution cannot be used to hold that the provision is temporary for the following reasons: (a) Since the Maharaja or his successors did not sign a merger agreement with the Union of India, the State retained residual sovereignty and Article 370 was incorporated in the Indian Constitution as a recognition of the same. The reason for placing Article 370 in Part XXI of the Constitution of India was that the Constituent Assembly of India assumed that as and when the Constituent Assembly of the State would be established, it would recommend the abrogation of Article 370 and thereby fully integrate the state into the Union. It cannot be said that by reason of being placed in Chapter XXI of the Constitution of India, Article 370 could have been abrogated at any time by the President. This is apparent also from the fact that the provision was kept out of the purview of Article 368 of the Constitution, and a mechanism for its abrogation was provided in Article 370(3). Thus, it was temporary only insofar as the Constituent Assembly was not in place at the time of its incorporation into the Indian Constitution. It was a permanent provision of the Indian Constitution notwithstanding its placement in Chapter XXI of the Constitution and the state was to be governed by two Constitutions; and (b) The word “temporary” in the marginal note does not refer to a limited duration of time after which the Article would cease to exist. It implies that unless the specific conditions of its repeal, that is, convening of the Constituent Assembly of the State of Jammu and Kashmir, can be secured, the Article will continue to operate irrespective of the duration of time., Upon the enactment of the Constitution of Jammu and Kashmir, the Constituent Assembly became functus officio and, as such, Article 370 became permanent. Absent the recommendation of the Constituent Assembly, Article 370 could not be amended and the Legislative Assembly could not substitute the Constituent Assembly. Article 370 could only have been repealed by the Constituent Assembly between 1950 and 1957. After that, that is after the Constituent Assembly of the State ceased to exist, it could only be amended by way of the procedure specified under Article 368, followed by its extension to the State of Jammu and Kashmir by Article 370(1)(d). After the enactment of the Constitution of Jammu and Kashmir and the consequent cessation of the Constituent Assembly of the State, Article 370(1) alone survives since the only mechanism of its repeal, i.e., Article 370(3), could not be resorted to without the recommendation of the Constituent Assembly. As such, the dual constitutional arrangement between the State and the Union attained finality., Contrary to the position taken by senior counsel for certain petitioners that Article 370(1) and 370(3) are permanent facets of the Constitution of India, senior counsel Dinesh Dwivedi argues that Article 370 was a temporary provision. The interim arrangement in the form of Article 370 ceased to operate after the Constitution of Jammu and Kashmir was enacted. Article 370 ceased to be a source of power for the President, as was originally intended. Mr. Dwivedi disagreed with the proposition that since the Constituent Assembly chose not to recommend the abrogation of Article 370, Article 370(3) would continue to operate after the dissolution of the Constituent Assembly. He challenges the impugned actions on the ground that any power under Article 370 could no longer be exercised. A temporary provision could not be made a permanent source of power to bring about the impugned Constitutional Orders or the Reorganisation Act. After January 1957, no provisions of the Constitution of India could be applied to the State of Jammu and Kashmir and the Constitution of Jammu and Kashmir could not be repealed, being entirely independent from the Constitution of India., Unlike the other States, the State of Jammu and Kashmir retained a part of the sovereignty even while acceding to the Dominion of India. There was no merger agreement between the Dominion of India and the State of Jammu and Kashmir, unlike other states. The terms of their relationship were defined in the Instrument of Accession whereby, though certain matters were acceded to the Union, residual sovereignty was retained by the Maharaja in accordance with Clause 8 of the Instrument. This position that the residual sovereignty vested with the Maharaja was affirmed by the Supreme Court of India. The very recognition of a separate Constituent Assembly for a state by the Constitution of India indicates that the Constitution of Jammu and Kashmir, which was the creation of a sovereign body, represented the sovereignty of the state of Jammu and Kashmir. Once the Constituent Assembly ceased to exist, the sovereignty was transferred to the Constitution. This sovereignty is recognised by Article 370(3). The sovereignty of the Constituent Assembly of Jammu and Kashmir is also clear from Article 370(2), which states that if any proposal for conferring additional powers to the Union Parliament is mooted once the Constituent Assembly comes into existence, it should be placed before the Constituent Assembly and not before the State government. Once the Constituent Assembly ceased to exist, the Constitution of Jammu and Kashmir assumed sovereignty. The Constitution of the state and the Legislative Assembly created by the Constitution are permanent. The Constitution of Jammu and Kashmir is an independent, perpetual document. Since it was not created by the Constituent Assembly, it is neither subordinate to the Constitution of India nor to Article 370. It cannot be substituted or repealed by an act of the Union Government. The Supreme Court of India has recognised that internal sovereignty may be divided by a distribution of legislative powers, which is an essential feature of federalism; and the sovereignty of the Ruler was recognised in the 1939 Constitution of Jammu and Kashmir, and contrary to the respondents’ argument that the Ruler’s sovereignty ended after he executed the Instrument of Accession, the sovereignty continued even after the Instrument of Accession or the 1949 Declaration., Central Order 272 issued under Article 370(1)(d) is unconstitutional for the following reasons: (a) Article 370(1)(d) refers to the modification of the constitutional provisions and their application to India. However, Central Order 272 goes beyond mere modification of the provisions of Article 367 and their application to the State of Jammu and Kashmir. It vests the power of a certain kind, meant to be exercised by a certain body, in a completely different body. This is tantamount to changing the fundamental basis of Article 370(3), which could have only been done through an amendment of Article 370(3). The expression “Constituent Assembly” cannot be substituted with “Legislative Assembly” in view of Article 370(2), which ascribes a specific meaning to the former term. The Constituent Assembly is completely different from the Legislative Assembly; the latter is neither a substitute nor the successor of the former. Central Order 272 is thus a colourable exercise of the President’s power. (b) Article 367 is an interpretation clause. The order does not merely change the manner of interpretation but substitutes the provision by conferring constituent power of the Constituent Assembly on the Legislative Assembly. This amounts to an amendment of Article 370(3). (c) The Legislative Assembly had no power under the Constitution of Jammu and Kashmir to amend any provision of the Constitution of India. Consequently, neither the Legislative Assembly nor the Governor could have given consent to Central Order 272. Central Order 272 is invalid because it vests in the Legislative Assembly a power that the Constitution of Jammu and Kashmir expressly bars. (d) Article 370 recognises the unique constitutional status of the State of Jammu and Kashmir. As such, the provision contains a mechanism for its own amendment in Article 370(3). When such a specific provision exists, the amendment cannot be done in any other manner. (e) Article 370(1)(d) is for the application of provisions other than Articles 1 and 370 to the State of Jammu and Kashmir. Since Central Order 272 pertains to Article 370, any amendment to the provision can only be done through Article 370(3) and not through Article 370(1)(d). (f) Article 370 was previously amended through the exercise of power under Article 370(3). Central Orders 48 and 72 were issued under Article 370(1)(d) and they added and amended sub‑clause 4 to Article 367. However, unlike Central Order 272, those orders did not contain any references to Article 370. They were purely clarificatory orders and did not make any substantive changes to Article 370. Central Order 272 makes amendments to Article 370 through the backdoor. (g) The respondents’ argument that the proviso to Article 370(3) and the requirement of a recommendation of the Constituent Assembly ceased to exist after the dissolution of the Constituent Assembly is incorrect. While the powers under Article 370(1)(b) are of an amending nature, the power under Article 370(3) is a constituent power. Accepting the respondents’ argument would lead to an inconsistent conclusion that the amending provision would be more onerous than abolishing it under Article 370(3). Thus, Article 370(3) could only be abrogated by a constituent body and no less. (h) Article 370 could have been amended only by resorting to Article 370(3), subject to the proviso thereto. This was reiterated by the Supreme Court of India in Prem Nath Kaul v. State of Jammu and Kashmir, which was decided after the Constituent Assembly of Jammu and Kashmir had ceased to exist. (i) In the alternative, Article 367 does not apply to Article 370(3) because the latter starts with a non obstante clause. Impliedly, Article 367 cannot be used to make any changes to Article 370(3). (j) The Constitution cannot be amended by an executive order. Only Parliament, in exercise of its constituent power, can amend the Constitution of India. The order, which effectively amends the Constitution, could not be effected by an executive order. (k) Central Order 272 made Central Order 1954 inapplicable. It was issued with the concurrence of the Constituent Assembly of the state, which was in existence at the time. As such, the Governor had no jurisdiction to concur to make such an order, issued with the concurrence of the Constituent Assembly, non‑applicable. (l) The wholesale application of the Constitution of India suffers from a lack of application of mind, which is a mandatory pre‑condition. Article 370(1)(d) contemplates a situation where, based on the exigencies of the situation and upon due application of mind, certain specific provisions of the Constitution are extended to the State of Jammu and Kashmir in order to address the said exigencies. Central Order 272 applies the provisions of the entire Constitution of India to the state. No deliberations took place to decide the suitability of those provisions for the state. Such wholesale application of the whole Constitution, in one go, is apparently without any deliberation. (m) The respondents have erroneously relied on Mohd. Maqbool Damnoo v. State of Jammu and Kashmir to argue that the Constituent Assembly and the Legislative Assemblies are interchangeable. In that case, the Court held that the Governor, being the successor to Sadr‑i‑Riyasat, can exercise the same powers as the latter. The reliance on this case is misplaced. (n) The Instrument of Accession was meant to accede to the Union. The State retained sovereignty on matters except those stipulated in the Instrument of Accession. The Constituent Assembly of Jammu and Kashmir was the fulfilment of the promise to the people of the State that the issue of accession would be referred to them for ratification. Therefore, treating the Legislative Assembly as a substitute for the Constituent Assembly of the State would violate the terms of the Instrument of Accession as well as the very integration of the State into the Union on its own terms., Central Order 273 dated 6 August 2019 is unconstitutional for the following reasons: (a) Central Order 273 states that the President, on the recommendations of Parliament, declared that all the clauses of Article 370 have ceased to be operative, except a clause that effectively applies the Constitution of India mutatis mutandis to the State of Jammu and Kashmir. (b) Consequent to the invalidity of Central Order 272, Central Order 273 is void ab initio for the same reasons as stated above in respect of Central Order 272. (c) Central Order 273 was issued in exercise of power under Article 370(3). However, there was no recommendation from a representative body competent to issue such a recommendation under the proviso to Article 370(3). Since the recommendation of the Constituent Assembly is mandatory under the proviso to Article 370(3), and no such recommendation could be obtained in view of the non‑existence of the Constituent Assembly at the relevant time, Central Order 273 is ultra vires Article 370(3). The proviso to Article 370(3) was included to give power to the people of the State to decide whether they wanted to integrate with India. (d) The Constituent Assembly of Jammu and Kashmir was the sole authority to determine whether Article 370 ought to continue to exist. After its dissolution, no such determination could have been made. The Constituent Assembly had already expressed its desire not to abrogate the special status of Jammu and Kashmir. Therefore, the President had no power to act contrary to the desire of the Constituent Assembly. (e) Even assuming Central Order 272 was valid to the extent that it substituted the Constituent Assembly with the Legislative Assembly, the requirement of recommendation was not satisfied since Central Order 273 was issued at a time when the proclamation under Article 356 was in force and the Legislative Assembly was not in existence. (f) Unlike other states which acceded to the Constitution of India, the State of Jammu and Kashmir had a separate Constitution and had not merged with the Union. It had acceded to India only on the terms agreed to by way of the Instrument of Accession. Central Order 273 has invalidated the Instrument of Accession. (g) Central Order 273, along with Central Order 272, amounts to the destruction of the basis of Article 370 by a unilaterally reneging by the Union of India of the compact made with the people of Jammu and Kashmir. (h) The respondents argue that since the Constituent Assembly was dissolved, recourse to the proviso to Article 370(3) was not possible and the maxim lex non cogit ad impossibilia (law does not compel the doing of impossibilities) justifies the impugned actions without recommendations from the Constituent Assembly. This is not tenable in view of the above arguments based on Article 370(2) and the difference between the Constituent and Legislative Assembly., The Reorganisation Act is unconstitutional for the following reasons: (a) The Presidential proclamation issued under Article 356 suspended the first proviso to Article 3 of the Constitution to the extent that it relates to the reference by the President to the Legislature of the State for its views and the whole of the second proviso to Article 3 as it applies to the State of Jammu and Kashmir, by which a Bill under Article 3 could be initiated only with the consent of the Legislature of the State. A law which brings permanent changes cannot be brought into force by temporarily suspending the provisos to Article 3. Since the proclamation under Article 356 itself was void, the suspension of Article 3 was similarly void. Even otherwise, the suspension of the provisos to Article 3 was neither an incidental nor consequential exercise of powers under Article 356(1). It was beyond the President’s power conferred under Article 356(1)(c), which cannot be to abrogate the State itself. The Reorganisation Act is not a law which Parliament would be competent to make under Article 357(1) and Article 356. (b) The suspension of the proviso to Article 3 prescribing a mandatory reference to the State Legislature by the President had the effect of suspending the will of the people, protected under the proviso. The purpose of the proviso is the mandatory ascertainment of the will of the people before changing the boundary, name or area of the State. The President was thus required to ensure that their wishes have been consulted, and that, only at the instance of the State legislature, such a change could be effected. (c) In any case, even if the second proviso to Article 3 was validly suspended, it was merely an acknowledgment of the territorial integrity of the State of Jammu and Kashmir and not the source of it. The territorial integrity of the State of Jammu and Kashmir stems from the Constitution of Jammu and Kashmir, and was permanent, sovereign, and recognised by the Constitution of India. The proviso to Article 3 was merely a formal recognition of the territorial integrity. (d) The Reorganisation Act has bypassed the mandatory procedures and safeguards under Article 368 by resorting to Article 3. When there is a particular course of action under particular provisions, it cannot be bypassed by recourse to a general provision that does not directly deal with the subject matter. Article 4 states that the laws referred to in Articles 2 or 3 shall contain provisions for amending the first and the fourth schedule, as may be necessary to give effect to the provisions of the law and may contain supplemental, incidental or consequential provisions, as the Parliament may deem fit. However, Article 4(2) states that no such law shall be deemed to be an amendment of the Constitution for the purpose of Article 368. Article 4(2) implies that Article 3 cannot be used to supplant Article 368, which is a specific provision in respect of constitutional amendments. The Reorganisation Act violates Article 3. (e) The text and the structure of Article 3 do not support the degradation of a State into a Union Territory. There is no categorical power to degrade a State into a Union Territory and consistent State practice indicates movement in the direction of greater federal self‑governance, rather than less. Sub‑clauses (b) to (e) of Article 3 deal with areas, boundaries, and names; sub‑clause (a) read with Explanation 2 sets out the broader power to form a new State or Union Territory. There are a number of ways in which this is permissible and none of them entail the degradation of a State into a Union Territory. Article 3 has to be read in a manner that is consistent with the principles of federalism. It cannot be invoked in order to fulfil the political objectives of the party in power at the Centre. (f) The 2019 Act is unrelated to the nature of powers prescribed by Article 3 of the Constitution. Article 3 does not deal with the reorganisation of a State into a Union Territory. Unlike the other elements of Article 3 (clauses a‑e), the reorganisation of a State into Union Territories involves a drastic transfer of legislative and executive power. The Constituent Assembly would not have intended that such a transfer be affected by Parliamentary legislation. (g) The Reorganisation Act has the effect of bringing the following changes: it applies Article 73 of the Constitution of India on the State, erasing the executive powers under Article 162; depriving the entire territory of Ladakh of its rights under Articles 54 and 55, altering the representation of the territory in the Council of States; excluding the territory from the electoral college of the Rajya Sabha. All of these changes fall squarely under the clauses (a) to (e) of the proviso to Article 368(2). Thus, these changes could have been effected only by recourse to Article 368(2), subject to procedural safeguards such as ratification by states. A law that, inter alia, denudes the State of its legislative assembly such as the impugned Act cannot be brought under Article 392. (h) There is a qualitative difference between the reduction of a State into a Union Territory as opposed to the situations envisaged in Article 3. Each of the sub‑clauses of Article 3 refers to a situation where, as a result of a law, citizens may find themselves living in an existing or a new State. The federal representative democracy enjoyed by the citizens under these provisions is either constant or enhanced. As opposed to this, the degradation of a State into a Union Territory causes a diminishment or loss of representative democracy. (i) The purpose of Article 3 must be read in accordance with the State Reorganisation Report 1955. The Report suggested that the changes contemplated under Article 3 should be limited to alteration of boundaries, names and areas, and not the conversion of a State into a Union Territory.
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Demarcation of Indian states into Part A, Part B, Part C and Part D states was not feasible. Consequently, the Constitution (Seventh Amendment) Act 1956 removed these distinctions and introduced the concept of Union Territories. From 1955 onwards, through various legislations under Article 3, the present states of Goa, Himachal Pradesh, Manipur and others were converted from Union Territories to states. Historical and cultural reasons led to the designation of certain territories as Union Territories rather than full‑fledged states. In some cases, creating a full‑fledged state for a small area was not deemed reasonable, and cultural differences meant that these territories could not be subsumed into neighbouring states. Such territories were considered fit to be centrally administered, and later they were designated as states, representing a progressive step towards federalism., In the history of independent India, an existing state has never been retrograded into a Union Territory. Such retrogradation would diminish representative democracy and federalism. The Indian understanding of federalism is not to treat states as mere administrative units. The adage that India is an indestructible union of destructible states means that states can be reorganised by Parliament but they cannot be extinguished or retrograded into Union Territories, in violation of the federal structure. Article 1(1) states that India, that is Bharat, shall be a Union of States. The power under Article 3 cannot be used by Parliament to create a Union of Union Territories. The issue is not whether Parliament would in fact do that; the power of the Union under Article 3 thus clashes with the principle of federalism., The Reorganisation Act did not represent the people of Jammu and Kashmir because any alteration to existing units, their territories, boundaries and names should come from the people familiar with the unit concerned. The people affected by the alteration should desire such an alteration. The Centre, which is not aware of local conditions and relevant considerations, should leave the alteration of such boundaries to competent bodies such as the Boundary Commission. The Rajya Sabha expressed its views in support of the Reorganisation Bill, but only four out of the two hundred and forty members of the Rajya Sabha were from Jammu and Kashmir, so the Rajya Sabha could not be said to represent the will of the people of the state. The will of the people could have been expressed only through the Legislative Assembly of the state, which was dissolved and elections were deliberately not held with a view to enact the impugned Act. Moreover, the people of Jammu and Kashmir must initiate change rather than the Parliament, which is not the true representative of the people of the state., The process of constitutional integration of Jammu and Kashmir bears all the resemblance with the process of constitutional integration of various territories of India, namely democratization combined with merger of small states, formation of a union of states, and the idea of having constituent assemblies for framing constitutions. There was no distinct or special compact between the Union of India and Jammu and Kashmir as far as the constitutional integration process was concerned., It was open to the President to take a final stock of the exercise of the authority under Article 370(1)(d) and to decide whether there is a need for an updating exercise at all, or whether any other invocation of Article 370(1)(d) is required. This power of the President is not limited or conditioned by any past practice in relation to Article 370., Article 370 was conceived and designed to aid the constitutional integration process on the same lines as it happened with other states. Its continued exercise over a period cannot be seen as a cloud over or distortion of its original purpose., Border states are a distinct class of territories and their reorganisation under Article 3 ought to receive distinct consideration. Neither asymmetrical federalism nor any other federal features have been infringed, and no rights in relation to representative democracy have been taken away., Article 370 is the only provision in the Constitution which the Constitution itself declares to be temporary. This understanding that it is temporary is supported by the drafting history of the article, debates in the Constituent Assembly, parliamentary debates and the gradual issuance of constitution orders. The other provisions of Part XXI are named either special provisions or transitory provisions., The effect of Article 370(1) was to permit two organs under the Constitution of India, by way of an Executive Order, to create, amend or destroy any part or provision of the Constitution of India except Article 1, at their free will and apply such tailored constitutional provisions to the State of Jammu and Kashmir. The expansive width of this power shows it could not have been intended to be a permanent provision either by the efflux of time or in any other manner., The abrogation of Article 370 brings the residents of Jammu and Kashmir at par with the citizens residing in the rest of the country, conferring on them all rights flowing from the entire Constitution as well as hundreds of beneficial legislations. Therefore, applying the Constitution of India to the state can never be an arbitrary act., This is the only provision in the Constitution where the application of (i) the provisions of the Indian Constitution and (ii) the application of beneficial legislations to the residents of Jammu and Kashmir is made dependent upon the Government of the day agreeing to the application. Such an arrangement could never have been conceived by the framers of the Constitution. Article 370 is the only provision which provides for a mechanism, by way of Article 370(3), by which it would cease to be in existence. A provision intended to be permanent would not have such an inbuilt extinguishing clause., The proviso to Article 370(3) was to remain in operation only during the subsistence of the Constituent Assembly of Jammu and Kashmir because when the Constituent Assembly was formed, Article 370 of the Constitution of India was already in existence. Being aware of Article 370(3), the Constituent Assembly could have, at the time of its dissolution, (i) recommended to the President not to exercise his powers under Article 370(3); (ii) recommended some exceptions and modifications with which Article 370 could have remained in force; (iii) recommended the deletion of sub‑clause (3) and consequently sub‑clause (2), making Article 370(1) permanent; (iv) changed the marginal note substituting the word temporary with permanent and Constituent Assembly with Legislative Assembly in Article 370(3); (v) recommended the deletion of Article 370(1)(d), freezing the relationship between the state and the Union as it existed when the Constitution (Application to Jammu and Kashmir) Order, 1954 was passed by the President of India; and (vi) despite these powers of recommendation being available and being conscious of them, the Constituent Assembly chose not to do any of this and was dissolved. Once the state Constituent Assembly ceased to exist, the proviso to Article 370(3) itself ceased to exist and the President became the sole repository of powers under Article 370(3). He has a duty to exercise this power in the interests of the residents of the state even in the absence of a recommendation., The petitioners' assertion that the decision to abrogate Article 370 was taken purely by executive feat is incorrect. The process followed clearly reflects the participation of the entire nation through their chosen representatives both in the Lok Sabha and the Rajya Sabha., If the President cannot exercise the powers under Article 370(3), it would mean that the existence and exercise of power of the President of India provided for in the Indian Constitution is dependent upon a decision or a lack of it by a body outside the Constitution of India. If the mere absence of the Constituent Assembly mentioned in the proviso to clause 3 of Article 370 is treated as rendering the power of the President of India nugatory and redundant, it would mean that under Article 370(1)(b) and 370(1)(d), any provision of the Constitution of India can be amended and applied to the State of Jammu and Kashmir, even provisions that form part of the basic structure of the Constitution. This interpretation would amount to placing Article 370 above even the basic structure of the Constitution of India., Even if the State Constituent Assembly were currently in existence, its limited role was to merely make a recommendation, which was not binding upon the President. Considering the limited role that the State Constituent Assembly was to play, its replacement with the Legislative Assembly and the recommendation by Parliament in place of the State Legislative Assembly passes muster. Parliament is not an undemocratic body and, along with the Council of States, it represents federal aspirations., Parliament is the repository of the democratic will of the entire nation and, in a situation which concerns the relationship of one federal unit with other federal units, the appropriate constitutional authority to exercise democratic powers as per the Constitution would be Parliament. The question concerns all states in the federal setup and not merely Jammu and Kashmir., The power of the President under sub‑clause (3) of Article 370 is unfettered because (a) Article 370 begins with a non‑obstante clause notwithstanding anything contained in the Constitution of India; and (b) sub‑clause (3) of Article 370 begins with a non‑obstante clause notwithstanding anything in the foregoing provisions of this article. The exercise of powers by the President is thus not controlled by any constitutional provisions, including the provisions of Article 370., The replacement of the term Constituent Assembly with Legislative Assembly was necessary to democratize the decision‑making process of the President., Parliament had to exercise the powers of the Legislative Assembly because of (a) the emergency under Article 356(1)(b); (b) the strategic significance of the state from the point of view of the sovereignty and integrity of the nation, making it desirable that every federal unit should, through its representatives, both at the Lok Sabha and at the Rajya Sabha, participate in the decision‑making process; and (c) the Constituent Assembly of India was exercising constituent power while the Constituent Assembly of Jammu and Kashmir was exercising legislative power., Clause (3) of Article 370 is an extraordinary, unique and unprecedented clause. A provision in the nature of Article 370(3) is not present in any constitutional document or any provision of the Indian Constitution. It is not possible to classify the power under clause (3) under a specific nomenclature. The power under clause (3) of Article 370 is a plenary presidential power, specially designed for a temporary provision., The position as far as the State of Jammu and Kashmir is concerned, even prior to the coming into force of Article 1 and the Constitution of India, was: (a) by the Instrument of Accession, the ruler surrendered his authority; and (b) by the proclamation dated 25 November 1949, the ruler surrendered his absolute power in regard to the affairs of the state., The Constituent Assembly of Jammu and Kashmir was formed by a ruler who had already surrendered his sovereignty. The document called the Constitution of Jammu and Kashmir and the body framed for its creation cannot claim any equivalence with the Constitution of India and the Constituent Assembly of India. This is because the Constituent Assembly of Jammu and Kashmir and the resultant Constitution of Jammu and Kashmir were formed in 1951 by the proclamation of the Maharaja who had already acceded to India; they were formed after the Constitution of India already included the State of Jammu and Kashmir under the schedule to Article 1 thereby making it a part of India, devoid of any sovereignty; they were not framed as documents for a new nation or for providing an independent model of governance but only as a legislative enactment for the internal governance of the state and subject to the Constitution of India; and they had a limited mandate and could not have overridden the provisions of the Indian Constitution as applied to Jammu and Kashmir., The State Constitution does not establish a republican form of government in its entirety as it was dependent on the real sovereign document, that is, the Constitution of India., The Indian Constitution clearly establishes the Union of India as a sovereign democratic republic. The State Constitution neither establishes sovereignty nor claims to do so. The preamble is indicative of this fact., To become a fundamental document, a constitution must necessarily include several facets of undisputed sovereignty, including the power to acquire new territory, which in itself includes the power to cede its own territory. This is absent in the State Constitution as it was already a part of the Indian Constitution under Article 1., The power of the President under Article 370(3) necessarily presupposes the repeal of every document which is required to be repealed to ensure that the entire Constitution of India is made applicable to Jammu and Kashmir without any hindrance or legal hurdle. This power necessarily inheres in the President of India under Article 370(3)., There can only be one supreme document known as the Constitution flowing from the power conferred by the people of India. All other enactments, whether known as a constitution or otherwise, are subordinate to the Constitution of India, and the body creating such other documents is also subordinate to the Constitution of India., Article 367 has previously been utilised to modify Article 370. This is a legitimate route to modify Article 370., When the Reorganisation Act was enacted, the second proviso to Article 3 (which applied to the State of Jammu and Kashmir alone) was not in force because the Central Order 272 issued by the President made the entire Constitution applicable to the state in supersession of any previous constitutional orders. As a result, all the modifications of the Constitution were superseded and only the first proviso was in force; hence there was no requirement to comply with the second proviso., The power of Parliament under Article 3 is a plenary power which may be exercised during the subsistence of a proclamation under Article 356. States have previously been reorganised during the subsistence of a state emergency., Under Article 3, Parliament has the power to convert a state into two Union territories., The sufficiency of the material which necessitated a decision under Article 3 lies beyond the realm of judicial review., The petitioners did not challenge the dissolution of the Legislative Assembly and the issuance of the proclamation declaring an emergency under Article 356. They only challenged the actions taken during the subsistence of the proclamation., It is impermissible for this Court to read in limitations on the powers under Article 356(1)(b)., The President has previously exercised powers under Article 370 even when Governor's rule or President's rule was in force., The term modification used in Article 370(1) cannot be interpreted in a narrow manner. It gives the President the power to amend the Constitution in its application to the State of Jammu and Kashmir. Therefore, the addition of clause (4) to Article 367 by Central Order 272 is valid., The continuity of constituent power exercised by the legislative assembly of the State of Jammu and Kashmir by virtue of Section 147 of the State Constitution makes the legislative assembly equally competent to provide the requisite recommendation under Article 370(3)., The erstwhile states ceased to be independent with the advent of the Constitution. In fact, every vestige of their sovereignty was abandoned with the execution of the Instruments of Accession and the states stood fully assimilated and integrated with the Dominion of India., Article 370(3) contains a non‑obstante clause, overriding Article 370(1) and (2), providing for the cessation of Article 370 itself when the conditions are right., Article 35A, introduced through Central Order 48 of 1954, seeks to provide special rights to permanent residents of Jammu and Kashmir. It affects several fundamental rights, impacting the basic structure of the Constitution. However, it goes beyond the scope of 'exceptions and modifications' under Article 370(1)(d)., The constitutional scheme under Section 6 of the Constitution of Jammu and Kashmir is in flagrant violation of the constitutional scheme under Articles 14 and 15(1) of the Constitution of India., The non‑obstante clause under Article 370 must give way to the non‑obstante clause of Article 368 of the Constitution., The provisions of the Jammu and Kashmir Constitution create a number of problems, particularly in regard to the right to hold property, right to citizenship, and right to settlement., The actions of the Union of India are in conformity with the intention of the framers of the Constitution and the understanding of Article 370 as expressed by the representatives from the State of Jammu and Kashmir., The views of the Legislative Assembly of the state are required to be obtained only when a new state is formulated and not in case of formation of new Union territories., All the powers of the Constituent Assembly of the State of Jammu and Kashmir were being exercised by the legislature of the state. Therefore, by necessary implication, the word Constituent Assembly in Article 370(3) should have been construed as Legislative Assembly. This interpretation was given statutory form by virtue of Central Order 272., Article 370 is not a part of the basic structure of the Constitution of India., Article 35A is in violation of fundamental rights of the citizens of other parts of the country., The reference before the Constitution Bench raises the following questions for determination: (a) whether the provisions of Article 370 were temporary in nature or whether they acquired a status of permanence in the Constitution; (b) whether the amendment to Article 367 in exercise of the power under Article 370(1)(d) so as to substitute the reference to the Constituent Assembly of the State referred to in clause (3) of Article 370 by the words Legislative Assembly of the State is constitutionally valid; (c) whether the entire Constitution of India could have been applied to the State of Jammu and Kashmir in exercise of the power under Article 370(1)(d); (d) whether the abrogation of Article 370 by the President in exercise of the power under Article 370(3) is constitutionally invalid in the absence of a recommendation of the Constituent Assembly of the State of Jammu and Kashmir as mandated by the proviso to clause (3); (e) whether the proclamation of the Governor dated 20 June 2018 in exercise of power conferred by Section 92 of the Constitution of Jammu and Kashmir and the subsequent exercise of power on 21 November 2018, under Section 53(2) of the Constitution of Jammu and Kashmir to dissolve the Legislative Assembly are constitutionally valid; (f) whether the proclamation which was issued by the President under Article 356 of the Constitution on 19 December 2018 and the subsequent extensions are constitutionally valid; (g) whether the Jammu and Kashmir Reorganisation Act 2019 by which the State of Jammu and Kashmir was bifurcated into two Union territories (Union Territory of Jammu and Kashmir and Union Territory of Ladakh) is constitutionally valid bearing in mind: the first proviso to Article 3 which requires that a bill affecting the area, boundaries or name of a state has to be referred to the legislature of the state for its views; and the second proviso to Article 3 which requires the consent of the state legislature for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of the state before the introduction of the bill in Parliament; (h) whether during the tenure of a proclamation under Article 356, and when the Legislative Assembly of the state is either dissolved or is in suspended animation, the status of the State of Jammu and Kashmir as a state under Article 1(3)(a) of the Constitution and its conversion into a Union territory under Article 1(3)(b) constitutes a valid exercise of power., Analysis: The State of Jammu and Kashmir did not possess sovereignty. Some petitioners urged that the State of Jammu and Kashmir retained an element of sovereignty when it joined the Indian Union. They argued that the Instrument of Accession ceded external sovereignty to the Union of India by ceding control over defence, foreign affairs and telecommunication, but the state retained internal sovereignty because of (a) the history of the relationship between Jammu and Kashmir and India; (b) the formation of the Constituent Assembly of Jammu and Kashmir; (c) the adoption of the Constitution of Jammu and Kashmir; and (d) the power to enact laws on all subjects except defence, foreign affairs and telecommunication. They urged that Article 370 subsumed the sovereignty retained by the state. In response, the Union of India advanced the argument that any sovereignty which vested with the state was ceded with the signing of the Instrument of Accession. The Union argued that the constitutional scheme of both the Indian Constitution and the Constitution of Jammu and Kashmir does not indicate that any element of sovereignty was retained by the state. The question of whether the state retained any element of sovereignty is a primary issue which will bear upon the other issues before this Court., The meaning of sovereignty: Sovereignty has different connotations in political theory, law and philosophy. Even within these fields, there is no definitive meaning about its content. European philosophers, from Hobbes to Locke to Rousseau, deliberated upon sovereignty, and its meaning has evolved over centuries. While it was initially considered as residing within a person, generally the monarch, it is now thought to rest within a body or group. Despite the absence of agreement on its precise content, there is broad agreement that legal sovereignty exists when a body has unlimited or unrestricted legislative power or authority and when none other is superior to it. This indicates that a sovereign authority has the supreme power to make laws and is not subordinate to another entity. In the law of the Constitution, Dicey stated that sovereignty, as long as it is accurately employed in the sense in which Austin sometimes uses it, is a merely legal conception, and means simply the power of law‑making unrestricted by any legal limit. The emphasis on the unlimited nature of the power available to a body has diminished with the development of international law and other modern limits on the exercise of power. While the expression sovereignty was previously understood to mean that the sovereign could enact any type or form of law in exercise of sovereign power, modern legal systems limit the nature of the laws that can be enacted by constitutional or other interdicts. Hence, the aspect of sovereignty which requires no subordination to another body is of greater significance as compared to the traditional aspect that requires power to be unlimited. The meaning of sovereignty elucidated in the preceding paragraph is descriptive not of external sovereignty but internal sovereignty. The former is commonly understood to mean the independence of a nation in relation to other nations whereas the latter is the relationship of the sovereign within the state to the individuals and associations within the state. External and internal sovereignty are not entirely distinct concepts but are different facets.
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They have gradually come to be regarded as two sides of the same coin. Dicey’s comment (extracted above) is evidently with reference to internal sovereignty because the unrestricted power to make laws concerns individuals and associations within a state, as opposed to the relationship between two nations., Orfield undertook a study of the literature on the subject of sovereignty. The study listed five leading characteristics of internal sovereignty: a. It exists as a matter of fact or as a matter of fact and law. Though the law of a state need not necessarily recognize, it may recognize the sovereign; b. Sovereign power is absolute in that a law may be passed on any subject; c. It is indivisible; d. The law passed by the sovereign need not be enforced in particular cases; and e. The legal sovereign is determinate. It may be a single person or a group of persons., In India, sovereignty vests in the people of India. The Preamble to the Constitution of India states that We, the people hereby adopt, enact and give to ourselves this Constitution. The Constitution was not adopted by an external authority such as a colonial power or its monarch. The Constitution does not owe its existence to an internal authority such as the rulers of the Princely States., The voice of the people echoed in the Constituent Assembly though it was not formed by an election based on adult suffrage. On 16 May 1946, the Cabinet Mission Plan stated that though the most satisfactory method of constituting the Constituent Assembly would be through adult suffrage, it would lead to a wholly unacceptable delay. Thus, the Plan stipulated that the most practicable course is to utilize the recently elected Provincial Legislative Assemblies as the electing bodies. The Cabinet Mission proposed the following plan for the constitution of the Assembly: a. To allot to each Province a total number of seats proportional to its population, roughly in the ratio of one to a million, as the nearest substitute for representation by adult suffrage; b. To divide its provincial allocation of seats between the main communities in each Province in proportion to their population; and c. To provide that the representatives allotted to each community in a Province shall be elected by the members of that community in its Legislative Assembly. Muslims, Sikhs, and General (all persons who were not Muslims or Sikhs) were recognised as the three main communities. However, since the interests of smaller minorities would not be adequately represented through this method, it was proposed that the Advisory Committee on the rights of citizens, minorities, and tribal and excluded groups should contain full representation of the interests affected, and their function will be to report to the Union Constituent Assembly upon the list of Fundamental Rights, the clauses for the protection of minorities, and a scheme for the administration of the tribal and excluded areas, and to advise whether these rights should be incorporated in the Provincial, Group or Union Constitution., Even after the Constituent Assembly was elected, the general public were engaged in the process of the drafting of the Constitution. In February 1948, the Draft Constitution of India prepared by the Drafting Committee was published and widely disseminated. Copies of the Draft Constitution were sold for one rupee, inviting comments from a wide range of civic bodies including the public. Thus, the people of India as a whole exercised their sovereign political power to adopt, enact, and give to themselves the Constitution through the Constituent Assembly. Consequent on the adoption of the Constitution, the people exercise the power of sovereignty through their elected representatives., The question which is being considered by the Supreme Court of India when it adjudicates whether Jammu and Kashmir retained sovereignty is twofold: first, did the State of Jammu and Kashmir retain sovereignty as distinct from its people? If not, is the exercise of sovereign power by the people of Jammu and Kashmir different from the exercise of sovereign power by the citizens of India who reside in different states? The answer to these and related issues will have be understood in the context of historical events which have shaped our past and continue to have an impact on the present., In 1834, Zorawar Singh, the General commanding the army of Gulab Singh, the Maharaja of Jammu invaded Ladakh. Ladakh came under Dogra rule and was incorporated into the State of Jammu and Kashmir in 1846. In the course of the Sino‑Sikh War in 1841‑42, the Qing empire invaded Ladakh but the Sino‑Tibetan army was defeated. On 9 March 1846, the Treaty of Lahore was executed between the Maharaja of Lahore and the British Government resulting in the transfer of certain territories to the East India Company. At Partition in 1947, Ladakh was a part of Jammu and Kashmir and was administered from Srinagar., Following the Treaty of Lahore, the British Government executed the Treaty of Amritsar on 16 March 1846 in terms of which the hilly mountainous country with its dependencies situated to the east of the river Indus and west of the Ravi, including Chamba, and excluding Lahaul were transferred by the British Government to Maharaja Gulab Singh of Jammu. Maharaja Gulab Singh died on 30 June 1857 and was succeeded by his son Maharaja Ranbir Singh. Initially, the State was ruled as a monarchy and as a consequence, sovereignty vested in the monarch., Following the passage of the Government of India Act 1858 on 2 August 1858, territories formally in the possession or under the control of the East India Company were vested in the British Monarch in whose name India was to be governed. Maharaja Ranbir Singh died in 1885 and was succeeded by Maharaja Pratap Singh., On 30 August 1889, the British Parliament enacted the Interpretation Act 1889. Section 18(4) defined the expression British India to comprise of: all territories and places within Her Majesty’s dominions which are for the time being governed by Her Majesty through the Governor General of India. The term India was defined in Section 18(5) as comprising of: British India together with any territories of native prince or chief under the suzerainty of Her Majesty exercised through the Governor‑General of India. The suzerainty of the colonising British over the territory of Jammu and Kashmir was such that external sovereignty rested with the Crown., Maharaja Pratap Singh was succeeded in 1925 by Maharaja Hari Singh, the last Ruler of the Princely State of Jammu and Kashmir. On 20 April 1927, the expression State Subject was defined in a notification issued by the Maharaja in terms of which State Subjects were classified into four categories which were subsequently to become the basis of the definition of the expression Permanent Residents of Jammu and Kashmir under Article 35A of the Constitution of India as it applied to the State of Jammu and Kashmir., Maharaja Hari Singh enacted Regulation No 1 of Samvat 1991 on 22 April 1934 which established a Legislative Assembly called the Praja Sabha for the State of Jammu and Kashmir. While delegating certain legislative functions to the Praja Sabha, Maharaja Hari Singh retained supremacy over all legislative, executive and judicial matters. This was indicative of internal sovereignty, in terms of its meaning discussed in the preceding section., By the Government of India Act, 1935 which was enacted by the British Parliament on 2 August 1935, India was established as a federation comprising of the Governors Provinces, Chief Commissioners Provinces and the Indian States which had or would accede to the Federation of India. Part II was titled the Federation of India and Chapter I of the Part provided for Establishment of Federation and Accession of Indian States. Section 5 provided for the Proclamation of the Federation of India. Section 6 enabled the Ruler of an Indian/Princely State to execute an Instrument of Accession declaring that he acceded to the Federation of India subject to the terms of the Instrument. The State of Jammu and Kashmir was not a part of British India. Hence, the provisions of the Government of India Act 1935 would apply to it only upon the execution of an Instrument of Accession by the Maharaja in accordance with Section 6., The Jammu and Kashmir Constitution Act 1939 was promulgated on 7 September 1939. While Maharaja Hari Singh retained sovereignty and supremacy over all legislative, executive and judicial functions, Section 23 of the Act empowered the Praja Sabha to make laws for the entire State of Jammu and Kashmir or any part of it subject to the conditions specified in Section 24. The Act vested executive functions with a Council consisting of a Prime Minister and other Ministers appointed by the ruler. The Act provided for the High Court (which had been established in 1928) to be a Court of Record with jurisdiction over civil suits and civil, criminal and revenue appeals., In May 1946, the British Cabinet Mission issued a Memorandum titled States’ Treaties and Paramountcy which affirmed that upon the establishment of an independent government in India, the paramountcy of the British monarch over Indian States would lapse and paramount power over their respective territories would return to the respective Princely States. It envisaged that the States could enter into a federal relationship with the successor government. On 16 May 1946, a Statement was issued by the Cabinet Mission. According to paragraphs 15(1) and 15(4) of the Statement, the Cabinet Mission Plan recommended a Union of India where the Union would have control over defence, foreign affairs and communications while the States would retain jurisdiction over all other subjects which were not ceded to the Union., Meanwhile, the Constituent Assembly was elected and came together to deliberate upon the form of governance for the country and frame a Constitution for it. The Constituent Assembly comprised of a broad‑based representation from across the country in which the representatives of the Princely States continued to join. In terms of the Cabinet Mission Plan, the Constituent Assembly of India met for its first session on 9 December 1946., On 22 January 1947, the Constituent Assembly unanimously adopted the Objectives Resolution which declared the firm and solemn resolve to proclaim India as an Independent Sovereign Republic. Paragraphs 2, 3, 4 and 7 declared that: (2) WHEREIN the territories that now comprise British India, the territories that now form the Indian States, and such other parts of India as are outside British India and the States, as well as such other territories as are willing to be constituted into the Independent Sovereign India, shall be a Union of them all; and (3) WHEREIN the said territories whether with their present boundaries or with such others as may be determined by the Constituent Assembly and thereafter according to the law of the Constitution, shall possess and retain the status of autonomous units, together with residuary powers, and exercise all powers and functions of government and administration, save and except such powers and functions as are vested in or assigned to the Union or as are inherent or implied in the Union or resulting therefrom; and (4) WHEREIN all power and authority of the Sovereign Independent India, its constituent parts and organs of government, are derived from the people; and (7) WHEREIN there shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea, and air according to justice and the law of civilized nations., The Objectives Resolution is significant to the discussion of whether Jammu and Kashmir retained an element of sovereignty because it reflects the understanding of the framers of the Constitution as to the consequences of acceding to India. Undoubtedly, the rulers of the Princely States had a contemporaneous and parallel understanding of the consequences of accession the loss of sovereignty. Indeed, this was one of the factors (if not the main factor) which caused some of the Princely States (such as Hyderabad) to hesitate in acceding to India. The following portions of the Objectives Resolution are of particular significance: a. Paragraph 2 indicated that the territories which acceded would be acceding to the sovereign country of India; b. Paragraph 3 indicated that the acceding territories would retain some level of autonomy (which is different from sovereignty); c. Paragraph 4 indicated that the sovereignty of India was derived from its people as a whole. This included the people of the acceding territories; and d. Paragraph 7 reinforced that the centrality of sovereignty vests with the people of the country as a whole., On 20 February 1947, Clement Attlee, the Prime Minister of the United Kingdom announced that: a. The British Government would grant full self‑government to British India by 30 June 1948; and b. The future of the Princely States would be decided after the date of final transfer was determined., On 3 June 1947, representatives of the Indian National Congress, the Muslim League and the Sikh Community came to an agreement with Lord Mountbatten, the agreement being known as the Mountbatten Plan. The Mountbatten Plan inter alia envisaged: a. The partition of British India; b. Grant of Dominion status to successor governments; c. Autonomy and sovereignty to India and Pakistan; d. Adoption of Constitutions by both the nations; and e. An option to Princely States to either join India or Pakistan., On 13 June 1947, a meeting was convened by Lord Mountbatten with Jawaharlal Nehru, Sardar Patel, Acharya Kripalani, Muhammad Ali Jinnah, Liaquat Ali Khan, Sardar Abdul Nishtar and Sardar Baldev Singh, at which the creation of a States Department was envisaged. It was envisaged that: That it would be advantageous if the Government of India were to set up a new Department, possibly called the “States Department”, to deal with matter of common concern with the States; that, if this were done, the new Department should be divided into two sections, ready for the partition of the country and that the existing Political Department and the Political Adviser should give all possible assistance and advice in the formation of this new Department., On 15 June 1947, the Congress Working Committee on States repudiated the British perspective that the lapse of paramountcy would result in the creation of independent states. It stated that: The committee does not agree with the theory of paramountcy as enunciated and interpreted by the British Government; but even if that is accepted, the consequences that flow from the lapse of paramountcy are limited in extent. The privileges and obligations as well as the subsisting rights as between the States and the Government of India cannot be adversely affected by the lapse of paramountcy. These rights and obligations have to be considered separately and renewed or changed by mutual agreement. The relationship between the Government of India and the States would not be exhausted by lapse of Paramountcy. The lapse does not lead to the independence of the States. The British Government and Indian bodies evidently disagreed on whether paramountcy would lapse., On 25 June 1947, the Interim Cabinet of India issued a press communique on 27 June 1947 for the setting up of a States Department chaired by Sardar Vallabhbhai Patel to deal with matters arising between the central Government and Indian states. The communique stated that: “In order that the successor Government will each have an organisation to conduct its relations with the Indian States when the Political Department is wound up, His Excellency the Viceroy, in consultation with the Cabinet, has decided to create a new Department called the States Department to deal with matters arising between the Central Government and the Indian States. This Department will be in charge of Sardar Patel, who will work in consultation with Sardar Abdur Rab Nishtar. The new Department will be organised in such a way and its work so distributed that at the appropriate time it can be divided up between the two successor Governments without any dislocation., On 3 July 1947, Sardar Patel wrote to Maharaja Hari Singh stating that the interests of Kashmir lie in joining the Indian Union and its Constituent Assembly without any delay and that its past history and tradition demand it, and India looks up to you and expects you to take this decision., The States Department was a part of the Ministry of Home Affairs headed by Sardar Patel. On 5 July 1947, Sardar Patel issued the following statement: I have a few words to say to the rulers of Indian States among whom I am happy to count many as my personal friends. It is the lesson of history that it was owing to her political fragmented condition and our inability to make a united stand that India succumbed to successive waves of invaders. Our mutual conflicts, and internecine quarrels and jealousies have in the past been the cause of our downfall and our falling victims to foreign domination a number of times. We cannot afford to fall into those errors or traps again. We are on the threshold of independence. But there can be no question that despite this separation a fundamental homogeneous culture and sentiment reinforced by the compulsive logic of mutual interests would continue to govern us. Much more would this be the case with that vast majority of States which owing to their geographical contiguity and indissoluble ties, economic, cultural and political, must continue to maintain relations of mutual friendship and co‑operation with the rest of India. The safety and preservation of these States as well as of India demand unity and mutual co‑operation between its different parts. I do not think it can be their desire to utilise this freedom from domination in a manner which is injurious to the common interests of India or which militates against the ultimate paramountcy of popular interests and welfare or which might result in the abandonment of that mutually useful relationship that has developed between British India and Indian States during the last century. This has been amply demonstrated by the fact that a great majority of Indian States have already come into the Constituent Assembly. To those who have not done so, I appeal that they should join now. The States have already accepted the basic principle that for Defence, Foreign Affairs and Communications they would come into the Indian Union. We expect more of them than accession on these three subjects in which the common interests of the country are involved. Nor would it be my policy to conduct the relations of the new Department with the States in any manner which savours of the domination of one over the other; if there would be any domination, it would be that of our mutual interests and welfare. Let not the future generations curse us for having had the opportunity but failed to turn it to our mutual advantage. Instead, let it be our proud privilege to leave a legacy of mutually beneficial relationships which would raise this Sacred Land to its proper place amongst the nations of the world and turn it into an abode of peace and prosperity., On 10 July 1947, during the second reading of the Indian Independence Bill, Prime Minister Attlee made the following statement: A feature running through all our relations with the states has been that the Crown has conducted their foreign relations. They have received no international recognition independent of India as a whole. With the ending of the treaties and agreements, the states regain their independence. But they are part of geographical India, and their rulers and peoples are imbued with a patriotism no less great than that of their fellow Indians in British India. It would, I think, be unfortunate if, owing to the formal severance of their paramountcy relations with the Crown, they were to become islands cut off from the rest of India. The termination of their existing relationship with the Crown need have no such consequence. It is the hope of His Majesty’s Government that all states will, in due course, and their appropriate place within one or other of the new dominions within the British Commonwealth, but until the constitutions of the Dominions have been framed in such a way as to include the states as willing partners, there must necessarily be a less organic form of relationship between them, and there must be a period before a comprehensive system can be worked out., On 18 July 1947, the British Parliament enacted the Indian Independence Act 1947. In terms of Section 1(1), two independent Dominions India and Pakistan were to be established from 15 August 1947. Section 7(1)(b) stipulated that following independence, the sovereignty of the British monarch over Indian States would lapse and return to the rulers of those States. Consequently, as sovereign States, 562 Princely States had the choice to remain independent or to accede to either of the two Dominions established by this Act. Section 8 enunciated that as a transitional measure, the provisions of the Government of India Act 1935 would continue to apply to the two Dominions subject to conditions. In pursuance of the provisions of Section 9, the Governor‑General of India issued the India (Provisional Constitution) Order 1947 which made certain provisions of the Government of India Act 1935 applicable to India until other provisions were made applicable by the Constituent Assembly. Section 6 dealt with the accession of Princely States to India through the execution of an Instrument of Accession. Section 6 provided as follows: Section 6. Accession of Indian States: (1) An Indian State shall be deemed to have acceded to the Dominion if the Governor‑General has signified his acceptance of an Instrument of Accession executed by the Ruler thereof whereby the Ruler on behalf of the State: (a) declares that he accedes to the Dominion with the intent that the Governor‑General, the Dominion Legislature, the Federal Court and any other Dominion authority established for the purposes of the Dominion shall, by virtue of his Instrument of Accession, but subject always to the terms thereof, and for the purposes only of the Dominion, exercise in relation to the State such functions as may be vested in them by order under this Act; and (b) assumes the obligation of ensuring that the effect is given within the State to the provisions of this Act so far as they are applicable therein by virtue of the Instrument of Accession. (2) An Instrument of Accession shall specify the matters which the Ruler accepts as matters with respect to which the Dominion Legislature may make laws for the State, and the limitations, if any, to which the power of the Dominion Legislature to make laws for the State, and the exercise of the executive authority of the Dominion in the State, are respectively to be subject. (3) A Ruler may, by a supplementary Instrument executed by him and accepted by the Governor‑General vary the Instrument of Accession of his State by extending the functions which by virtue of that Instrument are exercisable by any Dominion authority in relation to his State. A Draft Common Instrument of Accession and Standstill Agreements were drawn up by the Department of States., India obtained independence on 15 August 1947. Partition resulted in the establishment of the two Dominions of India and Pakistan. British paramountcy lapsed. Those of the Princely States which had not executed an Instrument of Accession with either Dominion became independent States. These were Junagadh, Hyderabad and Jammu and Kashmir. Once again, the sovereignty of Jammu and Kashmir rested in the ruler, Maharaja Hari Singh., The Government of Jammu and Kashmir signed a Standstill Agreement with Pakistan. On 27 September 1947, Nehru addressed a letter to Sardar Patel underlining that the Pakistani strategy is to infiltrate Kashmir now and to take some big action as soon as Kashmir is more or less isolated because of coming winter., Shortly thereafter, on 26 October 1947, Maharaja Hari Singh addressed a communication to Lord Mountbatten requesting the immediate assistance of his government. The letter noted that the Maharaja wanted time to decide to which Dominion he should accede or whether it would be in the best interest of both the Dominions as well as Jammu and Kashmir for the State to stand independent. The Maharaja noted the grave danger to Jammu and Kashmir from Pakistan in spite of the Standstill Agreement., Adverting to the conditions in the State and the great emergency of the situation as it exists, the Maharaja stated that he had no option but to ask for help from the Indian Dominion, accepting at the same time that India could not send the help asked for by him without Jammu and Kashmir acceding to the Dominion of India. The Maharaja decided to accede to the Union of India. The offer of accession noted that if the State of Jammu and Kashmir has to be saved immediate assistance must be available at Srinagar., Maharaja Hari Singh signed the Instrument of Accession on 26 October 1947. The Maharaja stated that he was doing so in terms of the provisions of the Government of India Act 1935 enabling any Indian State to accede to the Dominion of India by the execution of an Instrument of Accession by the Ruler. The Maharaja acceded to the Dominion of India in the exercise of my sovereignty in and over my said State. As a consequence, the independence attained by the State when British paramountcy lapsed was ceded to the Union of India. The Instrument of Accession contains the following declaration in paragraph 1: I hereby declare that I accede to the Dominion of India with the intent that the Governor General of India, the Dominion Legislature, the Federal Court and any other Dominion authority established for the purposes of the Dominion shall by virtue of this my Instrument of Accession but subject always to the terms thereof, and for the purpose only of the Dominion, exercise in relation to the State of Jammu & Kashmir such functions as may be vested in them by or under the Government of India Act, 1935, as in force in the Dominion of India, on the 15th day of August 1947., In terms of Paragraph 3, the Maharaja accepted matters specified in the Schedule as the matters with respect to which the Dominion Legislature may make laws for the State. Paragraph 5 stipulated that the terms of the Instrument of Accession shall not be varied by any amendment of the Government of India Act 1935 or the Indian Independence Act 1947 unless such an amendment is accepted by the Maharaja by an Instrument supplementary to the Instrument. Paragraph 7 provided that: Nothing in this Instrument shall be deemed to commit in any way to acceptance of any future constitution of India or to fetter my discretion to enter into agreement with the Government of India under any such future constitution., Paragraph 8 provided that nothing in the Instrument of Accession would affect the continuance of the sovereignty of the Maharaja in and over the State, the exercise of any powers, authority and rights enjoyed by him as Ruler save as otherwise provided by the Instrument and the validity of any law which was in force., The Instrument of Accession was accepted by the Governor‑General on 27 October 1947. The Governor‑General stated that in response to the Maharaja’s appeal for military aid, action has been taken to send the troops of the Indian Army to Kashmir to help your own forces to defend your territory and to protect the lives, property and honour of your people., On 5 March 1948, Maharaja Hari Singh issued a Proclamation establishing an Interim Government for the State of Jammu and Kashmir pending the framing of a Constitution for the State., Before the Constitution of India came into force, the process of integrating Princely States with the Dominion of India was progressively being achieved.
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Many Princely States executed Instrument of Accession and Standstill Agreements. The White Paper on States (1951) contains an illuminating discussion on territorial integration. One of the important consequences of the adoption of the new Constitution is the completion of the process of the territorial integration of States. The States geographically contiguous to the Dominion of India, as they existed before the Constitution of India became operative, could be divided into two main categories: the acceding States, and the non‑acceding States. There were only two non‑acceding States, namely, Hyderabad and Junagadh. The acceding States could be subdivided into the following groups: States which were not affected by the process of integration and continued as separate units, i.e., Mysore and Jammu and Kashmir; Unions of States; Centrally‑merged States; Provincially‑merged States; and Khasi Hill States Federation. Under the new Constitution, all the constituent units, both Provinces and States – the latter term includes non‑acceding States – have been classified into three classes, viz: Part A States which correspond to the former Governors' Provinces; Part B States which comprise the Unions of States and the States of Hyderabad, Mysore and Jammu and Kashmir; and Part C States which correspond to the former Chief Commissioners' Provinces. The new Constitution effects the territorial integration of States by means of a two‑fold process. Firstly, Article 1 of the Constitution defines the territories of India to include the territories of all the States specified in the First Schedule, including Part B States. This is an important departure from the scheme embodied in the Government of India Act 1935 in that, while section 311(1) of that Act defined India to include British India together with all territories of Indian Rulers, the Act did not define the territories of the Indian Federation. Secondly, with the inauguration of the new Constitution, the merged States have lost all vestiges of existence as separate entities., As regards the State of Jammu and Kashmir, the White Paper provides: Special provisions regarding the State of Jammu and Kashmir. The State of Jammu and Kashmir acceded to India on 26 October 1947. The form of the Instrument of Accession executed by the Ruler of the State is the same as that of the other Instruments executed by the Rulers of other acceding States. Legally and constitutionally therefore the position of this State is the same as that of the other acceding States. The Government of India stands committed to the position that the accession of this State is subject to confirmation by the people of the State, but this does not detract from the legal fact of accession. The State has therefore been included in Part B States. The White Paper notes that Jammu and Kashmir was incorporated as a Part B State. Moreover, with the inauguration of the Constitution, all the merged entities have lost all vestiges of existence as separate entities. In view of the special problems arising in the State of Jammu and Kashmir and bearing in mind the assurance of the Government of India that its people would themselves finally determine their political future, the provisions of Article 370 were introduced. However, the legal fact of accession resulted in the transfer of sovereignty from the Maharaja to India. The effect of this provision is that the State of Jammu and Kashmir continues to be a part of India. It is a unit of the Indian Union and the Union Parliament will have jurisdiction to make laws for this State on matters specified either in the Instrument of Accession or by subsequent additions with the concurrence of the Government of the State. An order has been issued under Article 370 specifying (1) the matters in respect of which the Parliament may make laws for the Jammu and Kashmir State and (2) the provisions, other than Article 1 and Article 370, which shall apply to that State (Appendix LVIII). Steps will be taken for the purpose of convening a Constituent Assembly which will go into these matters in detail and when it comes to a decision on them, it will make a recommendation to the President who will either abrogate Article 370 or direct that it shall apply with such modifications and exceptions as he may specify., In June 1949, Maharaja Hari Singh issued a Proclamation delegating his power and authority to Yuvraj Karan Singh who would function as the ruler of the State. Following his appointment as the ruler, Yuvraj Karan Singh nominated four representatives from Jammu and Kashmir to the Constituent Assembly of India. On 16 June 1949, Sheikh Abdullah joined the Constituent Assembly together with three other representatives from the State of Kashmir namely Mirza Mohammed Afzal Baig, Maulana Mohammed Sayeed Masoodi and Moti Ram Bagda., At this time, several Princely States entered into covenants to form single units. The Princely States of Bhavnagar, Porbandar, Junagadh and others formed the United State of Saurashtra. Gwalior, Indore and eighteen other Princely States formed the United State of Gwalior, Indore and Malwa (Madhya Bharat). Similar covenants led to the formation of the Patiala and East Punjab States Union, the United State of Rajasthan and the United State of Travancore and Cochin., In July 1949, a note prepared by the Ministry of States regarding the Indian States specifically noted that Jammu and Kashmir would be treated as a part of Indian Territory: The Government of India have considered the matter in its various aspects and are of the opinion that in view of the present peculiar situation in respect of Jammu and Kashmir State it is desirable that the accession of the State should be continued on the existing basis till the State could be brought to the level of other States. A special provision has therefore to be made in respect of this State on the basis suggested above as a transitional arrangement. This note expressly clarifies the position that the accession of Jammu and Kashmir was to continue on the then‑existing basis till the State could be brought to the level of other States; the State would be treated as a part of Indian Territory until Parliament made all the provisions of the Constitution applicable to Jammu and Kashmir. The power of Parliament to make laws for the State would be limited to those matters specified in the Instrument of Accession reflecting the power of the Dominion of India to legislate. The special provision for Jammu and Kashmir was not, therefore, indicative of the fact that it retained an element of sovereignty. Rather, it was necessitated by the conditions in the State at the time and was intended to continue until the State could be brought on par with other States., On 14 October 1949, Jammu and Kashmir was included among Part III States under Article 1 with a territory comprising the corresponding Indian States immediately before the commencement of the Constitution. The Part III States were Hyderabad, Jammu and Kashmir, Madhya Bharat, Mysore, Patiala & East Punjab States Union, Rajasthan, Saurashtra, Travancore‑Cochin and Vindhya Pradesh. There were nine Part III States including Jammu and Kashmir., On 15 October 1949, four seats were allocated in the Constituent Assembly to Kashmir. The re‑allocation of seats in the Constituent Assembly to various States was necessitated because between December 1946 and November many of the smaller States merged with the provinces; many other States were united to form Unions of States; and some States came to be directly administered as Chief Commissioners' Provinces. These changes required a readjustment of the representation of the States. The modalities which were followed were thus: for States which were merged in Provinces, the Speaker of the Legislative Assembly was authorised to hold elections and to notify the persons elected or nominated to the Constituent Assembly; where the States were united to form a Union of States and for Hyderabad, Mysore and Jammu and Kashmir, the Rajpramukh or Ruler was entrusted with this function; and in the case of States which were constituted into Chief Commissioners' Provinces, the function was entrusted to the Chief Commissioner., On 17 October 1949, four seats were allotted to the State of Jammu and Kashmir, among other States, in the Council of States. The allocation of seats of all states was as follows: Hyderabad 11, Jammu and Kashmir 4, Madhya Bharat 6, Mysore 6, Patiala & East Punjab States Union 3, Rajasthan 9, Saurashtra 4, Travancore‑Cochin 6, Vindhya Pradesh 4. Total 53., Draft Article 306A, which later became Article 370 on the adoption of the Constitution, was debated in the Constituent Assembly on 17 October 1949. Gopalaswami Ayyangar, while participating in the debate, furnished the rationale for Article 370. Ayyangar stated: “Sir, this matter, the matter of this particular motion, relates to the Jammu and Kashmir State. The House is fully aware of the fact that that State has acceded to the Dominion of India. The history of this accession is also well known. The accession took place on 26 October 1947. Since then, the State has had a chequered history. Conditions are not yet normal in the state. The meaning of this accession is that at present that State is a unit of a federal state namely, the Dominion of India. This Dominion is getting transformed into a Republic, which will be inaugurated on 26 January 1950. The Jammu and Kashmir State, therefore, has to become a unit of the new Republic of India. As the House is aware, accession to the Dominion always took place by means of an instrument which had to be signed by the Ruler of the State and which had to be accepted by the Governor‑General of India. That has taken place in this case as the House is also aware, instruments of accession will be a thing of the past in the new Constitution. The States have been integrated with the Federal Republic in such a manner that they do not have to accede or execute a document of accession for the purpose of becoming units of the Republic, but they are mentioned in the Constitution itself; and, in the case of practically all States other than the State of Jammu and Kashmir, their constitutions also have been embodied in the Constitution for the whole of India. All those other states have agreed to integrate themselves in that way and accept the constitution provided.”, On 25 November 1949, a Proclamation was issued for the State of Jammu and Kashmir by Yuvraj Karan Singh. The Preamble to the Proclamation notes that the Constituent Assembly which was drafting the Constitution of India included representatives of the State of Jammu and Kashmir. It states that with the inauguration of the new Constitution for the whole of India now being framed by the Constituent Assembly of India, the Government of India Act 1935 which now governs the constitutional relationship between this State and the Dominion of India will stand repealed; and that in the best interests of this State, which is closely linked with the rest of India by a community of interests in the economic, political and other fields, it is desirable that the constitutional relationship established between this State and the Dominion of India should be continued as between this State and the contemplated Union of India; and that the Constitution of India as drafted by the Constituent Assembly of India, which included duly appointed representatives of this State, provides a suitable basis for doing so., The Proclamation stated that the provisions of the Constitution shall govern the constitutional relationship between the State and the Union of India, and that it shall supersede all other constitutional provisions which are inconsistent with the provisions of the Constitution. It declared that the Constitution of India, as applicable to the State of Jammu and Kashmir, shall govern the constitutional relationship between this State and the contemplated Union of India and shall be enforced in this State by the ruler, his heirs and successors in accordance with the tenor of its provisions. The provisions of the said Constitution shall, as from the date of its commencement, supersede and abrogate all other constitutional provisions inconsistent therewith which are at present in force in this State., The Proclamation made it clear that (a) the constitutional relationship between the State of Jammu and Kashmir and the Union of India would be governed by the Constitution of India upon its adoption by the Constituent Assembly; (b) the Constitution would be enforced in the State of Jammu and Kashmir in accordance with its provisions; and (c) the Constitution would upon its commencement supersede and abrogate all other constitutional provisions of the State which were inconsistent with it. The Proclamation is of particular significance in addressing the argument of the petitioners that Jammu and Kashmir retained sovereignty because it did not enter into an agreement of merger with the Union of India. The declaration that the Constitution of India would not only supersede all other constitutional provisions in the State which were inconsistent with it but also abrogate them achieves what would have been attained by an agreement of merger. Paragraph 7 of the Instrument of Accession provided that nothing in the Instrument shall be deemed to commit to acceptance of any future constitution of India. The Proclamation accepted the Constitution of India in no uncertain terms. Paragraph 7 therefore ceased to have legal import. Paragraph 8 of the Instrument of Accession provided that nothing in it would affect the continuance of the sovereignty of the Maharaja in and over the State, the exercise of any powers, authority and rights enjoyed by him as Ruler save as otherwise provided by the Instrument and the validity of any law which was in force. With the issuance of the Proclamation, paragraph 8 ceased to be of legal consequence. The Proclamation reflects the full and final surrender of sovereignty by Jammu and Kashmir, through its sovereign ruler, to India to her people who are sovereign., The Constitution of India was adopted by the Constituent Assembly on 26 November 1949 and came into force on 26 January 1950, repealing the Indian Independence Act 1947 and the Government of India Act 1935., On 1 May 1951, a Proclamation was issued by Yuvraj Karan Singh directing the establishment of an elected Constituent Assembly to draft a Constitution for the State of Jammu and Kashmir. The Constituent Assembly of Jammu and Kashmir was convened on 31 October 1951. In his statement before the Constituent Assembly, Sheikh Abdullah referred to the circumstances leading up to the signing of the Instrument of Accession by the Maharaja, categorically referring to the invasion from the side of Pakistan which would have otherwise led to the occupation of the whole state by Pakistani troops and tribesmen. He described the overwhelming pressure of this invasion, the collapse of the armed force of the State and its administrative machinery, the atrocities committed by tribesmen, and the lack of constitutional arrangements with India that made it impossible for the Government of India to render effective assistance. He noted that India had refused to sign a Standstill Agreement with the state on the ground that it could not be accepted until it had the approval of the people, but once the people's representatives sought an alliance, the Government of India showed readiness to accept it. Legally the Instrument of Accession had to be signed by the ruler of the state, which the Maharaja did. While accepting that accession, the Government of India said that it wished that as soon as law and order had been restored in Kashmir and its soil cleared of the invader, the question of the state's accession should be settled by reference to the people., In the course of his address to the Constituent Assembly of Jammu and Kashmir, Sheikh Abdullah highlighted the following reasons in support of acceding to India: the adoption of democracy, which would eliminate the danger of a revival of feudalism and autocracy; the Government of India's non‑interference in the internal autonomy of Jammu and Kashmir in the previous four years; the Indian Constitution's provision of a secular democracy based on justice, freedom and equality; the Constitution's guarantee of equality of citizens irrespective of religion, colour, caste and class; the national movement in Jammu and Kashmir gravitating towards these principles of secular democracy; the economic advantages of aligning with India; and the potential of achieving land reforms under the Indian Constitution., Sheikh Abdullah noted that the most powerful argument in favour of acceding to Pakistan was that Pakistan was a Muslim state and a large majority of the people in Jammu and Kashmir professed the religion. He repelled this argument by stating that the claim of being a Muslim state is only a camouflage, a screen to dupe the common man, and that Pakistan is a feudal state where a clique tries to maintain power. He argued that the appeal to religion is a sentimental and wrong approach, and that Pakistan is not an organic unity of all Muslims in the subcontinent. He pointed out that the total population of western Pakistan contiguous to the State is hardly 25 million, while the total number of Muslims resident in India is about 40 million, and that Kashmiri Muslims should choose the 40 million living in India., On 10 June 1952, the Basic Principles Committee of the Jammu and Kashmir Constituent Assembly submitted its interim report recommending that the form of the future Constitution of Jammu and Kashmir would be wholly democratic; hereditary rulership shall be terminated; and the Head of State shall be elected., In 1952, the Delhi Agreement was entered into between the Government of India and the Government of Jammu and Kashmir. Under the Agreement, the Union Government agreed that while residuary powers of the legislature vested in Parliament in respect of other States, in the case of Jammu and Kashmir the residuary powers vested in the State itself because the Jammu and Kashmir Constitution consistently held that sovereignty in all matters other than those specified in the Instrument of Accession resides in the State., In the meantime, the President issued Constitutional Orders from time to time. The process of integration of Jammu and Kashmir was a gradual one, necessitated by the special conditions prevailing in the State. The Constitution of Jammu and Kashmir was meant to play a role in this gradual process of integration. As evinced by the historical trajectory of the relationship of Jammu and Kashmir with the Union of India, sovereignty was surrendered in part with the signing of the Instrument of Accession and in full with the issuance of the Proclamation by Yuvraj Karan Singh in November 1949. It remains to consider whether the Constitution of India or the Constitution of Jammu and Kashmir leads to the conclusion that the State retained an element of sovereignty. Neither the constitutional setup nor any other factors indicate that the State of Jammu and Kashmir retained an element of sovereignty., Article 1 of the Constitution of India provides that India is a Union of States. The importance of Article 1 in its application to the State of Jammu and Kashmir can be seen from many provisions: Article 1 (as it then stood) referenced Part III States, and Jammu and Kashmir was listed as a Part III State in the First Schedule to the Constitution of India; Article 370(1)(c) reiterates that Article 1 shall apply to the State; while Article 370 contains provisions for applying other provisions of the Constitution with modification or exceptions to the State of Jammu and Kashmir, there is no provision for the modification or abrogation of Article 1; and Section 3 of the Constitution of Jammu and Kashmir declares that Jammu and Kashmir is an integral part of India. Section 147 prohibits any amendment to Section 3. These provisions contradict the argument that an agreement of merger was necessary for Jammu and Kashmir to surrender its sovereignty. The Constitution, once adopted and in force, became the supreme governing document of the land. The merger of Jammu and Kashmir with the Union of India was an unequivocal fact, as evinced from these provisions., On 17 November 1956, the Constituent Assembly of Jammu and Kashmir approved and adopted the Constitution of Jammu and Kashmir. The Preamble to the Constitution states: having solemnly resolved, in pursuance of the accession of this State to India which took place on the twenty‑sixth day of October 1947, to further define the existing relationship of the State with the Union of India as an integral part thereof. Three aspects of the Preamble are of significance: the Constitution of Jammu and Kashmir was not adopted independently of the Union of India but was adopted in pursuance of the accession of the State to India; the Constitution was only to further define the relationship between the Union of India and the State of Jammu and Kashmir, a relationship already defined by the Instrument of Accession, the Proclamation of November 1949 and the Constitution of India; and the Constitution reiterates that the State of Jammu and Kashmir is an integral part of the Union of India., The debates of the Constituent Assembly of Jammu and Kashmir also reveal that sovereignty lay with the people of India (which included the people of Jammu and Kashmir) and not with the State or its people alone. Shri Kushuk Bakula stated: “That we are thus made an integral party of India, that great country of high ideas and glorious traditions…”. Shri Kotwal Chuni Lal stated: “We again stand by the pledge of the National Conference that Kashmir is an inseparable part of India.” Mrs Isher Devi Mani emphasized that Kashmir is an integral part of India and that the State acceded of its own free will. The President of the State Constituent Assembly, G. M. Sadiq, declared: “We are an integral part of India and shall remain so forever…”. These statements reiterate the understanding of the members of the Constituent Assembly of Jammu and Kashmir that accession to India was complete and that sovereignty was surrendered., There is a noticeable difference between the Preamble to the Indian Constitution and the Preamble to the Constitution of the State of Jammu and Kashmir. The Preamble to the Indian Constitution states: “We the people of India, having solemnly resolved to constitute India into a sovereign, socialist, secular and democratic republic.” The Constitution of Jammu and Kashmir does not contain a reference to sovereignty. While the Indian Constitution emphasizes sovereignty, the basic purpose of the Constitution of Jammu and Kashmir, as set out in its Preamble, is to define further the relationship of the State with the Union as an integral part of India. Section 2(a) of the Constitution of Jammu and Kashmir provides that the Constitution of India means the Constitution as applicable in relation to this State. Section 4 defines the territory of the State of Jammu and Kashmir to comprise all the territories which on 15 August 1947 were under the sovereignty or suzerainty of the Ruler of the State. Section 5 defines the extent of the executive and legislative power of the State: the executive and legislative power of the State extends to all matters except those with respect to which Parliament has power to make laws for the State, under the provisions of the Constitution of India.
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Section 5 defines the extent of the legislative and executive power of the State by relating it to matters over which Parliament has power to make laws for the State. In other words, the residual power which is left after excluding the domain which falls within the ambit of the legislative power of Parliament in relation to the State would be within the legislative and executive domain of the State of Jammu and Kashmir. Section 5, however, recognises that the legislative domain of Parliament in relation to the State of Jammu and Kashmir would be prescribed by the Constitution of India and therefore not by the Constitution of the State of Jammu and Kashmir., Section 6 of the Jammu and Kashmir Constitution provides for permanent residents. (1) Every person who is, or is deemed to be, a citizen of India under the provisions of the Constitution of India shall be a permanent resident of the State if, on the fourteenth day of May 1954, (a) he was a State subject of class I or of class II, or (b) having lawfully acquired immovable property in the State, he had been ordinarily resident in the State for not less than ten years prior to that date. (2) Any person who, before the fourteenth day of May 1954, was a State subject of class I or of class II and who, having migrated after the first day of March 1947 to the territory now included in Pakistan, returns to the State under a permit for resettlement or permanent return issued by or under the authority of any law made by the State Legislature shall on such return be a permanent resident of the State. (3) In this section, the expression “State subject of class I or of class II” shall have the same meaning as State Notification No. I‑L/84 dated the twentieth April 1927, read with State Notification No. 13/L dated the twenty‑seventh June 1932. It is important to note that permanent residents do not possess dual citizenship of the State of Jammu and Kashmir and the Union of India; rather, they are citizens only of the Union of India., Part IV of the Jammu and Kashmir Constitution provides for the Directive Principles of State Policy; Part V for the Executive consisting of the Governor and the Council of Ministers headed by the Chief Minister; Part VI for the State Legislature comprising the Legislative Assembly and the Legislative Council. Part VI also provides for the High Court and the subordinate courts. Part VIII provides for Finance, Property and Contracts; Part IX for the Public Services; Part X for Elections; Part XI for Miscellaneous Provisions; and Part XII for amendment of the Constitution. None of these provisions indicate that the State is sovereign., Section 147, which provides for the amendment of the State Constitution, states: An amendment of this constitution may be initiated only by the introduction of a Bill for the purpose in the Legislative Assembly and when the Bill is passed in each House by a majority of not less than two‑thirds of the total membership of the House, it shall be presented to the Sadar‑i‑Riyasat for his assent and, upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill. Provided that a Bill providing for the abolition of the Legislative Council may be introduced in the Legislative Assembly and passed by a majority of the total membership of the Assembly and by a majority of not less than two‑thirds of the members of the Assembly present and voting. Provided further that no Bill or amendment seeking to make any change in (a) this section; (b) the provisions of Sections 3 and 5; or (c) the provisions of the Constitution of India as applicable in relation to the State shall be introduced or moved in either house of the Legislature., The power of the Legislative Assembly to amend the Constitution of Jammu and Kashmir was subject to the constraints provided in the second proviso, according to which the Legislative Assembly could not amend: (a) Section 147 itself; (b) the provisions of Sections 3 and 5; and (c) the provisions of the Constitution of India as applicable in relation to the State., These provisions are significant. The power of amending the State Constitution, which was entrusted to the Legislative Assembly (subject to the assent of the Governor), had three major qualifications: firstly, the position that the State of Jammu and Kashmir is and shall be an integral part of the Union of India was unamendable; secondly, the executive and legislative domain of the State, which depended upon the domain entrusted to Parliament under the provisions of the Constitution of India, was unamendable by the State Legislative Assembly; and thirdly, the provisions of the Constitution of India as applicable in relation to the State of Jammu and Kashmir were unamendable by the State Legislative Assembly. These restraints made it abundantly clear that Jammu and Kashmir being an integral part of the Union of India was a matter of permanence and unalterable. Moreover, any modification in the relationship of the State of Jammu and Kashmir with the Union of India would have to be brought about within the framework of the Constitution of India alone., In adopting the Constitution of India, we, the people, constituted India into a sovereign republic. The State of Jammu and Kashmir was an integral part of India. The Constitution of Jammu and Kashmir recognized that position by acknowledging the permanence of Jammu and Kashmir as a constituent State in the sovereign republic of India. The use of the expression “further conveys the intent” indicates that the defining characteristics of the relationship between the State and the Union were not exclusively embodied in the Constitution of the State. Because the State is an integral part of the Union of India, the executive and legislative domain of the State relates to the Constitution of India. The territorial integrity of the Union of India, which encompasses the State of Jammu and Kashmir, was beyond the domain of the authorities constituted by the State Constitution. The defining contours of the relationship between the State and the Union lay beyond the framework of the State Constitution and are governed by the Constitution of the Union., Any restraints on the power to modify the relationship of the Union with the State must therefore be traced to the Constitution of India and not to the Constitution of Jammu and Kashmir. Significantly, the Constitution of the State of Jammu and Kashmir did not contain an elaboration of the subjects on which the State could legislate in view of the provisions of Section 5. The legislative domain of the State of Jammu and Kashmir was the residue left after the legislative domain of Parliament to make laws for the State, as defined in the Constitution of India., In State Bank of India v. Santosh Gupta, the Supreme Court of India rejected the argument that the Constitution of Jammu and Kashmir has a status equal to the Constitution of India. The Court held that the State has its own separate Constitution governing all matters except those surrendered to the Union of India. Amendments made in the Constitution of India apply to the State of Jammu and Kashmir only if the President, with the concurrence of the State Government, applies such amendments to the State. The distribution of powers reflects that matters of national importance, requiring a uniform policy, are retained with the Union of India, while matters of local concern remain with the State. Although the Jammu and Kashmir Constitution establishes District Courts and the High Court in the State, the supreme authority of courts to interpret the Constitution of India and to invalidate actions violative of that Constitution remains fully present. Appeals from the High Court of Jammu and Kashmir lie to the Supreme Court of India, and, with minor modifications, Articles 124 to 147 all apply to the State, with Articles 135 and 139 omitted. The omission of Articles 135 and 139 has a very small impact, as Article 135 deals with jurisdiction and powers of the Federal Court exercised by the Supreme Court, and Article 139 deals with Parliament’s power to confer on the Supreme Court the power to issue directions, orders, and writs for purposes other than those mentioned in Article 32(2). Permanent residents of the State of Jammu and Kashmir are citizens of India, and there is no dual citizenship. This leads to the conclusion that, even for the State of Jammu and Kashmir, the quasi‑federal structure of the Constitution of India continues, with the aforesaid differences. It is therefore difficult to accept the argument that the Constitution of India and that of Jammu and Kashmir have equal status. Article 1 of the Constitution of India and Section 3 of the Jammu and Kashmir Constitution make clear that India shall be a Union of States, and that the State of Jammu and Kashmir is and shall be an integral part of the Union of India., Parliament has the power to enact laws on all matters which are not listed in Lists II and III by virtue of Article 246 read with Entry 97 of List I of the Seventh Schedule. However, Entry 97 was not extended to the State of Jammu and Kashmir by any Constitution Order issued under Article 370(1)(b). Thus, unlike other states, the State of Jammu and Kashmir had residuary legislative powers in view of Section 5 of its Constitution. At this juncture, it is important to refer to the Delhi agreement, where it was decided that the State of Jammu and Kashmir shall have the residuary legislative powers because of the consistent stand taken by the Constituent Assembly that sovereignty with respect to all matters other than those stipulated in the Instrument of Accession continues to reside in the State. This is not indicative of sovereignty of Jammu and Kashmir. Residual legislative powers cannot be equated with residual sovereignty; they reflect the value of federalism and the federal underpinnings of the Constitution of India. Neither Parliament nor any of the States have unrestricted power to make laws; each has its own sphere of legislation, as demarcated by the three lists in the Seventh Schedule. Each is supreme in its own sphere. The States have plenary power to enact laws, but this alone cannot be taken as a sign of sovereignty of individual States., It is true that many commentators refer to these aspects of federalism as internal sovereignty. By whatever name they are called, it is clear that all States in the country have legislative and executive power, albeit to differing degrees. The Constitution accommodates concerns specific to a particular State by providing for arrangements specific to that State. Articles 371A to 371J are examples of special arrangements for different States. This is a feature of asymmetric federalism, which Jammu and Kashmir also benefits from by virtue of Article 370. The State of Jammu and Kashmir does not have internal sovereignty distinguishable from the powers and privileges enjoyed by other States. In asymmetric federalism, a particular State may enjoy a degree of autonomy that another State does not. The difference, however, remains one of degree and not of kind. Different States may enjoy different benefits under the federal setup, but the common thread is federalism., If the position that Jammu and Kashmir has sovereignty by virtue of Article 370 were to be accepted, it would follow that other States which had special arrangements with the Union also possessed sovereignty. This is clearly not the case, as noticed by the Supreme Court of India in State (National Capital Territory of Delhi) v. Union of India, (2023) 9 SCC 1. The special circumstances in Jammu and Kashmir necessitated a special provision, namely Article 370. Article 370 is an instance of asymmetric federalism. The people of Jammu and Kashmir therefore do not exercise sovereignty in a manner distinct from the way in which the people of other States exercise their sovereignty. In conclusion, the State of Jammu and Kashmir does not have internal sovereignty distinguishable from that enjoyed by other States., In Prem Nath Kaul, a suit was filed by the appellant against the State of Jammu and Kashmir for a declaration that the Jammu and Kashmir Big Landed Estate Abolition Act 2007 was void, inoperative, and ultra vires of Yuvraj Karan Singh who enacted it so that the appellant could retain possession of his lands. The suit was dismissed and the High Court in appeal confirmed the dismissal. The Constitution Bench, speaking through Justice P. B. Gajendragadkar, noted two developments. First, Maharaja Hari Singh, who had succeeded Maharaja Pratap Singh as the Ruler of Kashmir, issued Regulation 1 of 1934 in response to a public agitation for the establishment of responsible government. Section 3 of the Regulation provided that all powers—legislative, executive and judicial—in relation to the State were declared to be inherent in and possessed by the Maharaja. Section 30 provided that no measure would be deemed to be passed by the Praja Sabha until the Maharaja had signified his assent. Secondly, in 1939 the Maharaja promulgated the Jammu and Kashmir Constitution Act 1936. As a consequence, Regulation 1 of 1934 was overhauled. Section 5, like Section 3 of Regulation 1 of 1934, recognized and preserved all the inherent powers of the Maharaja. The Constitution Bench noted that with the passing of the Indian Independence Act 1947, the suzerainty of His Majesty over Indian States lapsed together with all agreements and treaties in force. With the lapse of British paramountcy, Jammu and Kashmir, like other Indian States, was theoretically free from the limitations imposed by the paramountcy of the British Crown, subject to the proviso to Section 7(1)(b) which prescribed that effect shall continue to be given to the provisions of any earlier agreement in relation to the subjects enumerated in the proviso until the provisions are denounced by the Rulers of the Indian States or by the Dominion and are superseded by subsequent agreements., In the course of the judgment, the Constitution Bench referred to the events leading up to the execution of the Instrument of Accession by the Maharaja on 25 October 1947, the replacement of a popular interim government by a Proclamation dated 5 March 1948 which envisaged the convening of a National Assembly to frame a Constitution, the issuance of a Proclamation on 20 June 1949 by which he entrusted to Yuvraj Karan Singh all his functions—legislative, judicial or executive—, the Proclamation issued on 25 November 1949 by Yuvraj Karan Singh that the Constitution of India, shortly to be adopted by the Constituent Assembly of India, shall, insofar as it is applicable to the State of Jammu and Kashmir, govern the relationship between the State and the Union of India and shall be enforced in the State by him, his heirs and successors in accordance with the tenure of its provisions. Moreover, the provisions of the Constitution would, according to the Proclamation, supersede and abrogate all other constitutional provisions inconsistent with it which were then in force in the State., The Proclamation was followed by the issuance of the Constitution (Application to Jammu and Kashmir) Order 1950 on 26 January 1950. The legislation in question was promulgated by Yuvraj Karan Singh on 17 October 1950 in exercise of the powers vested in him by Section 5 of the Constitution of the State of 1934 and the proclamation of the Maharaja dated 20 June 1949. Thereafter, on 20 April 1951, the Yuvraj directed the constitution of a Constituent Assembly for the framing of a Constitution for the State of Jammu and Kashmir. An elected Constituent Assembly was constituted which framed the Constitution for the State. As a result of the Constitution, hereditary rule was abolished and a provision was made for the election of a Sadar‑i‑Riyasat to be the Head of the State. On 13 November 1952, the Yuvraj was elected to the office of the Sadar‑i‑Riyasat, ending the dynastic rule in the State. The validity of the State legislation was questioned on the ground that Yuvraj Karan Singh had no authority to promulgate the Act., The Constitution Bench noted that prior to the passing of the Independence Act 1947, the sovereignty of the Maharaja over the State was subject to limitations imposed by the paramountcy of the British Crown and by treaties and agreements with the British Government. However, the Maharaja was an absolute monarch as regards the internal administration and governance of the State and was vested with all executive, legislative and judicial powers. The Supreme Court of India rejected the submission that the sovereignty of the Maharaja was affected by the provisions of the Instrument of Accession, holding: “But it is urged that the sovereignty of the Maharaja was considerably affected by the provisions of the Instrument of Accession which he signed on October 25, 1947. This argument is clearly untenable. It is true that by clause 1 of the Instrument of Accession His Highness conceded to the authorities mentioned in the said clause the right to exercise in relation to his State such functions as may be vested in them by or under the Government of India Act, 1935 as in force in the Dominion on August 15, 1947, but this was subject to the other terms of the Instrument of Accession of the sovereignty of His Highness in and over his State. We must therefore reject the argument that the execution of the Instrument of Accession affected in any manner the legislative, executive and judicial powers in regard to the Government of the State which then vested in the Ruler of the State.” The Supreme Court of India also rejected the argument that the Monarch lost plenary legislative powers upon the establishment of a popular interim government by the Proclamation dated 5 March 1948, observing that the Cabinet still had to function under the overriding powers of the Monarch: “The Maharaja very wisely chose to entrust the actual administration of the Government to the charge of a popular Cabinet; but the description of the Cabinet as a popular interim Government did not make the said Cabinet a popular Cabinet in the true constitutional sense of the expression. The Cabinet had still to function under the Constitution Act 1939 and whatever policies it pursued, it had to act under the overriding powers of His Highness.”, After analysing the provisions of Article 370, the Supreme Court of India observed: “On the said construction the question which falls to be determined is: Do the provisions of Article 370(1) affect the plenary powers of the Maharaja in the matter of the governance of the State? The effect of the application of the present article has to be judged in the light of its object and its terms considered in the context of the special features of the constitutional relationship between the State and India. The Constitution‑makers were obviously anxious that the said relationship should be finally determined by the Constituent Assembly of the State itself; that is the main basis for, and purport of, the temporary provisions made by the present article; and so the effect of its provisions must be confined to its subject‑matter. It would not be permissible or legitimate to hold that, by implication, this article sought to impose limitations on the plenary legislative powers of the Maharaja. These powers had been recognised and specifically provided by the Constitution Act of the State itself; and it was not, and could not have been, within the contemplation, or competence of the Constitution‑makers to impinge even indirectly on the said powers. It would be recalled that by the Instrument of Accession these powers have been expressly recognised and preserved and neither the subsequent proclamation issued by Yuvaraj Karan Singh adopting, as far as it was applicable, the proposed Constitution of India, nor the Constitution order subsequently issued by the President, purported to impose any limitations on the said legislative powers of the Ruler. What form of Government the State should adopt was a matter which had to be, and naturally was left to be, decided by the Constituent Assembly of the State. Until the Constituent Assembly reached its decision in that behalf, the constitutional relationship between the State and India continued to be governed basically by the Instrument of Accession. It would therefore be unreasonable to assume that the application of Article 370 could have affected, or was intended to affect, the plenary powers of the Maharaja in the matter of the governance of the State. In our opinion, the appellant’s contention based on this article must therefore be rejected.”, The Constitution Bench therefore rejected the challenge to the constitutional validity of the provisions of the State enactment. The Supreme Court of India in Prem Nath Kaul had to decide on the validity of the Estate Abolition Act. The limited question before the Constitution Bench was whether the Monarch held plenary legislative powers after the Constitution of India, as applied to Jammu and Kashmir, was adopted in the State but before the Constitution of Jammu and Kashmir was adopted. The legislation in question was promulgated by Yuvraj on 17 October 1950 before the Constituent Assembly of the State was constituted and the Constitution of Jammu and Kashmir was adopted. When the Constitution of India was adopted, all its provisions did not automatically apply to the State; by virtue of Article 370(1)(c), only Articles 1 and 370 applied to the State when the Constitution was adopted. Upon adoption, the State, like all other States, adopted a democratic form of government. However, in the absence of constitutional provisions to that regard, the existing form of government continued to have force. The provisions of the Indian Constitution relating to the establishment of a Legislative Assembly for States in Part B of the First Schedule and the designation of the ruler as Rajpramukh did not extend to the State of Jammu and Kashmir. Since the form of government in Jammu and Kashmir was yet to be put in force by the Government and the Constituent Assembly, the existing form continued until such provisions could be made. This is evident from the observation that the Monarch did not become a constitutional monarch upon the establishment of a popular interim Government by the Proclamation dated 5 March 1948 because the Cabinet still had to act under the overriding powers of the Monarch, and it was only with the adoption of the Constitution of Jammu and Kashmir that hereditary rule was abolished., On 19 June 2018, Mehbooba Mufti resigned as Chief Minister after the Bharatiya Janata Party withdrew from the alliance with the Jammu and Kashmir Peoples Democratic Party. The next day, the Governor of Jammu and Kashmir, with the approval of the President, imposed Governor’s rule in the State in exercise of power under Section 92 of the Jammu and Kashmir Constitution. The Proclamation issued under Section 92 would cease to operate on the expiry of six months from the date of issuance. Unlike Article 356 of the Constitution of India, Section 92 does not permit the extension of the Proclamation beyond six months; therefore Governor’s rule would have ended on 19 December 2018. The President issued a Proclamation under Article 356 on 19 December 2018, which was approved by the Lok Sabha on 28 December 2018 and the Rajya Sabha on 3 January 2019. On 28 June 2019 and 1 July 2019, the Lok Sabha and Rajya Sabha extended President’s rule for another six months., No challenge was mounted to the Proclamations under Section 92 of the Jammu and Kashmir Constitution until after the tenure of the Proclamation had ended. No challenge was made to the Proclamation under Article 356 of the Constitution of India immediately after it was issued. While the Proclamation was in force, the President issued Constitution Orders 272 and 273 by which Article 370 and the special constitutional status of Jammu and Kashmir were repealed. The petitioners mounted a challenge to the abrogation of the special status by challenging the validity of Constitution Orders 272 and 273 and the Proclamations issued by the Governor and the President in 2018 and the extension of the Presidential Proclamation in 2019., The Solicitor General of India argued that (a) neither the imposition of Governor’s rule nor President’s rule was challenged contemporaneously in 2018 and the petitioners have been unable to explain the cause for the delay; (b) the petitioners in their writ petitions have not pleaded grounds for challenging the Proclamations; and (c) the challenges to the Proclamations were initiated only after Article 370 was abrogated. It was urged that the Proclamations were not independently challenged and were challenged only because the impugned actions were taken during the subsistence of the Proclamations., The power of the President under Article 356 to issue a Proclamation is of an exceptional nature with wide ramifications on the autonomy of the State and the federal framework. Laches in challenging the Proclamations cannot by itself be a valid ground to reject a constitutional challenge to the Proclamations issued under Article 356 of the Constitution of India and Section 92 of the Jammu and Kashmir Constitution. However, we are of the opinion that the challenge to the validity of the Proclamations does not merit adjudication because: (a) the pleadings of the petitioners indicate that their principal challenge is to the abrogation of Article 370 and whether such an action could have been taken during President’s rule; the challenge is to actions taken during the subsistence of President’s rule and not independently to President’s rule itself; and (b) even if the Supreme Court of India holds that the Proclamation could not have been issued under Article 356, there would be no material relief, as it was revoked on 31 October 2019. We are conscious that the Supreme Court of India in SR Bommai held that status quo ante can be restored upon finding that the Proclamation is invalid and the Court has the power to validate specific actions taken when the Proclamation was in force.
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The petitioners have assailed the specific actions which were taken when the Proclamation was in force on the ground that these actions breach the constitutional limitations. Writ Petition (Civil) 1068 of 2019 assails the validity of the 2018 Proclamation and its extension but does not mention any grounds for the challenge. Writ Petition (Civil) 1099 of 2019 and Writ Petition (Civil) 1165 of 2019 have challenged the suspension of the proviso to Article 3 by the 2018 Proclamation but not the 2018 Proclamation itself. One of the grounds in Writ Petition (Civil) 1165 of 2019 is that the 2018 Proclamation is invalid but no reasons are mentioned. These substantive challenges, which form the fulcrum of the case of the petitioners, are being considered in the section below., The petitioners argue that the impugned commissions of enquiry could not have been issued and the Reorganization Act could not have been enacted when Article 356 was in operation in the State of Jammu and Kashmir. They submit that the State's executive and legislative power cannot be exercised by the Union under Article 356 to (a) take irrevocable decisions when the Proclamation has a limited shelf life, and (b) unsettle constitutional safeguards in favour of States., The Union Government contends that reading any further limitations on the exercise of the powers of the President or of Parliament under Article 356, beyond the limitations expressly provided in the Constitution, would amount to the Supreme Court of India undertaking an exercise of redrafting the provision., The issues for consideration are whether (a) there are any limits on the exercise of executive and legislative power of the States by the Union after a Proclamation is issued under Article 356; and (b) if so, the scope of judicial review of such exercise of power., Article 355 provides that it is the duty of the Union to protect every State against external aggression and internal disturbance, and to ensure that the government of every State is carried out in accordance with the provisions of the Constitution. Article 356 deals with a failure of constitutional machinery in a State. Clause 1 of Article 356 outlines both the substantive threshold for the invocation of President's rule and the legal powers that are delegated to the President and Parliament upon the invocation of President's rule. The relevant portion of Article 356 is as follows: (1) If the President, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution, the President may by Proclamation (a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of the State; (b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament; (c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of the Constitution relating to any body or authority in the State, provided that nothing in this clause shall authorise the President to assume any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of the Constitution relating to High Courts., For the President to issue a Proclamation under Article 356, two pre‑conditions must be fulfilled: (a) the President must be satisfied that a situation has arisen in which the government of a State cannot be carried on in accordance with the Constitution; and (b) that satisfaction must be formed either on the basis of a report sent by the Governor of the State or otherwise. If these conditions are met, the President may assume all or any functions of the State Government, declare that the powers of the State Legislature shall be exercisable by Parliament, and make incidental and consequential provisions, including the power to suspend, in whole or in part, any constitutional provision relating to any body or authority in the State, except the powers of High Courts., Every Proclamation must be laid before both Houses of Parliament, and unless approved by a resolution of both Houses, it shall cease to operate within two months. If the Council of States approves the resolution within two months but the House of the People is dissolved, the Proclamation ceases to operate on the expiry of thirty days from the date on which the House of the People first sits after reconstitution, unless a resolution approving the Proclamation is passed by the House of the People before that. Article 356(4) states that an approved Proclamation has a life of six months from the date of issuance, unless another Proclamation approving its continuance is passed, which extends its life by another six months. Parliament may not approve a Proclamation for a period beyond one year from the date of issuance unless a national emergency under Article 352 is in operation in the whole of India or any part of the State, and the Election Commission of India certifies that it is necessary for the Proclamation to continue because of difficulties in holding general elections. In no circumstances shall the Proclamation remain in force for more than three years from the date it was first issued., Where a Proclamation under Article 356 declares that the power of the State Legislature shall be exercisable by Parliament, Article 357 enunciates the consequences. Parliament, having been conferred with the powers of the State Legislature, may confer on the President the power to make laws and may authorise the President to delegate that power to any other authority, subject to conditions imposed by the President. When the House of the People is not in session, the President may authorise expenditure from the Consolidated Fund pending the sanction of Parliament. Article 357(2) states that a law enacted by Parliament, the President, or any authorised body under the Proclamation shall continue to remain in force even after the Proclamation ceases to operate, unless the State Legislature or any authority alters, repeals, or amends the law., The Supreme Court of India has earlier interpreted the scope of the President's power to issue a Proclamation under Article 356. The approach of the Court towards interpreting this unique power of the Union Government, which correspondingly reduces the autonomy of States, underwent a sea‑change from the decision of a seven‑Judge Bench in State of Rajasthan v. Union of India to a decision of a nine‑Judge Bench in SR Bommai v. Union of India., In State of Rajasthan v. Union of India, the factual matrix was that candidates of the Congress party were defeated in the Lok Sabha elections in nine Congress‑ruled States in 1977, after the end of the national Emergency. The Home Minister of the Union Government, headed by the Janata alliance, wrote to the Chief Ministers of those States urging them to advise the Governors to dissolve the legislative assemblies. Six States (Rajasthan, Madhya Pradesh, Punjab, Bihar, Himachal Pradesh, and Orissa) filed suits seeking a declaration that the Home Minister's letter was ultra vires the Constitution and sought an injunction restraining the Union Government from resorting to Article 356. While dismissing the writ petitions and suits, the Supreme Court held: (a) the actions of the Governor under Article 356 can be both preventive and curative because Article 355 vests the Union Government with a duty to ensure that the State Government is carried out in accordance with the Constitution; (b) the grounds for judicial review of a Proclamation under Article 356 are limited to mala fides or extraneous considerations; (c) the independence of States lasts only when the State executive and legislature have not violated their constitutional duties; (d) the President, while exercising power under Article 356, can take over all the functions of the Governor and can do whatever the Governor could; (e) a resolution by both Houses of Parliament approving the Proclamation is not a condition precedent for the dissolution of the State Legislative Assembly. Even if such a resolution is not passed, the Proclamation has a minimum shelf life of two months because immediate actions are required in urgent situations. Irrevocable actions taken in those two months, such as dissolving the assembly and holding fresh elections, cannot be remedied even if the Proclamation is declared unconstitutional. The power to dissolve the State legislature is implicit in Article 356(1)(b)., The seven‑Judge decision in State of Rajasthan read Article 356 widely to grant untrammeled executive power to the Union Government without parliamentary oversight, allowing the President to unilaterally remove the State Government and dissolve the legislative assembly, thereby abrogating federal interests and democratic rights. Although the Court held that the exercise of power to issue a Proclamation under Article 356 is open to judicial review, the grounds for review were limited to mala fides or extraneous considerations. The decision in SR Bommai changed the position of law significantly. A nine‑Judge Bench placed restraints on the President's power under Article 356 by emphasising the significance of parliamentary control over the Proclamation and expanding the scope of judicial review of the President's subjective satisfaction., When the Constituent Assembly was discussing the draft of Article 356, Dr. B. R. Ambedkar observed that he hoped the power would never be called into operation and would remain a dead letter. By the time SR Bommai was decided, the President had exercised the power more than ninety times. Members of the Constituent Assembly, including Mr. Santhanam, warned that only strong conventions would prevent misuse of the power. The Court in SR Bommai placed limitations on the President's power to issue a Proclamation and expanded the scope of judicial review., The majority opinion in SR Bommai can be summarised as follows: (a) the President's satisfaction under Article 356 must be based on objective material, either through the Governor's report or otherwise; (b) the Proclamation issued under Article 356(1) is subject to judicial review. Article 74(2) bars the Court from enquiring into any advice given but does not bar scrutiny of the material forming the basis of the advice. The Court must determine whether material indicates a failure of constitutional machinery; while the sufficiency of material cannot be questioned, the legitimacy of the inference drawn is open to review. Once the petitioner makes a prima facie case, the burden shifts to the Union Government to prove that the Proclamation was backed by relevant material; (c) Article 356(3), which mandates approval of the Proclamation by both Houses of Parliament, is a check on the President's power. The President cannot exercise powers under Article 356(1) to take irreversible actions unless both Houses have approved the Proclamation; (d) dissolution of the legislative assembly is not a natural consequence of the issuance of a Proclamation; (e) a resolution approving the Proclamation cannot save the Proclamation and the actions taken under it if the Court holds the Proclamation invalid. In such a case, the Court may restore the status quo ante, including restoration of the Legislative Assembly; (f) the Court, the legislative assembly, or Parliament has the power to review, repeal, and modify actions or laws taken when the Proclamation was in force. The Court can validate specific actions such as restoring the legislative assembly., The conclusions drawn from SR Bommai are: (a) the seven‑Judge decision in State of Rajasthan had a centripetal impact, centralising power with the Centre and limiting judicial review, allowing the President to take irrevocable actions before parliamentary approval; the nine‑Judge decision in SR Bommai had a centrifugal impact, enhancing the autonomy of the federating States, expanding judicial review, and requiring parliamentary approval before irrevocable actions. This interpretation aligns with the constitutional principles of federalism and legislative supremacy; (b) the standard of judicial review shifted from merely examining extraneous considerations in Rajasthan to requiring the Union Government to justify its action with material evidence in SR Bommai, moving from a culture of deference to a culture of justification; (c) SR Bommai introduced a more stringent test for the validity of a Proclamation and examined limits on the exercise of power after a Proclamation, particularly whether dissolution of the State Legislative Assembly is a natural consequence., Justice Sawant observed that the President may only suspend the political executive and the legislature of the State and not dissolve them, consistent with Article 356(1)(c) which allows incidental and consequential provisions. He held that it is permissible for the President to assume some functions of the Government without suspending or removing them. Justice Reddy agreed that dissolution of the Legislative Assembly is not an automatic consequence. He stated that the President should consider all relevant facts and circumstances before deciding to dissolve the Assembly, and should state the reasons for such an extraordinary step. However, Justice Reddy held that the President cannot assume some functions of the Government without dismissing the Government, because a Proclamation under Article 356(1) can be issued only when the constitutional machinery as a whole fails, not merely one or two functions., The Court rejected the argument that the President could assume only certain functions of the State Government while leaving the rest to the State, likening it to replacing parts of a malfunctioning car without discarding the whole. The Court held that a Proclamation under Article 356(1) necessarily contemplates the removal of the State Government, as the situation envisaged is one where the Government of the State cannot be carried on in accordance with the Constitution. Accepting a partial assumption of functions would introduce the concept of two governments operating in the same sphere, which is not practicable and does not promote the object underlying Article 356., A Proclamation issued under Article 356 impacts federal principles on two levels. First, the federal nature of the State is diluted because the Union is empowered to take over the executive and legislative powers of the State, causing the State to lose its autonomy during the operation of the Proclamation. Second, a Proclamation can be issued by the President on the aid and advice of the Council of Ministers without parliamentary approval; it has a minimum tenure of two months, which is extended upon a resolution passed by Parliament approving the Proclamation.
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Though the approval of the Proclamation by Parliament affirms the principle of parliamentary democracy, it does not restore the principle of federalism. The majority in SR Bommai (supra) was conscious of the impact of the Proclamation on federal principles. This is evident from the observations of Justice Reddy that only those steps which are necessary for achieving the objective of the Proclamation must be taken., The next issue that the Supreme Court of India addressed was whether the extent of power exercised by the President is justiciable. The petitioners in SR Bommai (supra) argued that the measures needed to remedy the situation would vary depending on the nature of the situation or the degree of failure of the constitutional machinery. They contended that it would be a disproportionate and unreasonable exercise of power if the President does not resort to different remedies in different situations. A strong contention was raised that situations of the failure of the constitutional machinery may be varied in nature and extent, and hence measures to remedy the situations may differ both in kind and degree. It would be a disproportionate and unreasonable exercise of power if the removal of Government or dissolution of the Assembly is ordered when the situation required only assumption of some functions or powers of the Government of the State or of any authority in the State under Article 356(1)(a). The excessive use of power also amounts to illegal, irrational and mala fide exercise of power. Hence, it is urged that the doctrine of proportionality is relevant in this context and has to be applied in such circumstances., The issue of whether the extent of power used by the President is justified in a particular situation is a question which, in Justice Sawant's opinion, would remain debatable and beyond judicially discoverable and manageable standards unless the exercise of excessive power is so palpably irrational or mala fide as to invite judicial intervention. Applying a more stringent standard would, in his opinion, lead to the Supreme Court of India adjudicating the comparative merits of one measure over the other, thereby entering the political thicket. It is possible for the President to use only some of the requisite powers vested in him under Article 356(1) to meet the situation in question. He does not have to use all the powers to meet every situation, whatever the kind and degree of the failure of the constitutional machinery in the State. However, whether in a particular situation the extent of powers used is proper and justifiable remains debatable and beyond judicially discoverable standards unless the exercise of excessive power is so palpably irrational or mala fide as to invite judicial intervention. Once the issuance of the Proclamation is held valid, the scrutiny of the kind and degree of power used under the Proclamation falls within a narrower compass. There is every risk and fear of the Supreme Court of India undertaking upon itself the task of evaluating with fine scales and through its own lenses the comparative merits of one measure rather than another. The Supreme Court of India will thus travel unwittingly into the political arena and be more readily subject to charges of encroaching upon policy‑making. Although, on the language of Article 356(1), it is legal to hold that the President may exercise only some of the powers given to him, in practice it may not always be easy to demonstrate the excessive use of the power., Justice Reddy observed that in the exercise of discretion, the President must consider the advisability and necessity of the action. The use of the word \may\ indicates not only a discretion but an obligation to consider the advisability and necessity of the action. It also involves an obligation to consider which of the several steps specified in sub‑clauses (a), (b) and (c) should be taken and to what extent. The dissolution of the Legislative Assembly, assuming that it is permissible, is not a matter of course. It should be resorted to only when it is necessary for achieving the purposes of the Proclamation. Once Parliament places its seal of approval on the Proclamation, further steps as may be found necessary to achieve the purposes of the Proclamation, i.e., dissolution of the Legislative Assembly, can be ordered. In other words, once Parliament approves the initial exercise of the President's power—his satisfaction that a situation had arisen where the government of the State could not be carried on in accordance with the Constitution—the President can go ahead and take further steps necessary for effectively achieving the objects of the Proclamation. Until the approval, he can only keep the Assembly under suspended animation but shall not dissolve it., A holistic reading of the decisions of Justice Sawant and Justice Reddy indicates that the actions by the President after issuing a Proclamation are subject to judicial review. However, there were variations in the judgments of the learned judges on the standard needed to be applied by the Supreme Court of India to test the validity of the exercise of power by the President after the issuance of the Proclamation. Justice Sawant applied the standard of whether the exercise of power was mala fide or palpably irrational. Justice Reddy observed that the advisability and necessity of the action must be borne in mind by the President., This Bench sitting in a combination of five judges is bound by the decision of the majority on the issue of whether the exercise of power by the President after the issuance of a Proclamation is subject to judicial review. We consider it appropriate, bearing in mind the principles which emerge from the decision in SR Bommai (supra), to undertake a textual and purposive reading of Article 356 in particular and Part XVIII as a whole independently., Part XVIII deals with two types of emergencies, national emergencies and the failure of constitutional machinery in a State. The invocation of a national emergency under Article 352 and the invocation of President's rule under Article 356 represent exceptions to the ordinary operation of the Constitution where, to address an urgent internal or external threat, the Constitution temporarily delegates certain powers to the President and Parliament until the threat abates and ordinary constitutional governance is restored. The invocation and operation of this exceptional power is itself subject to the Constitution and thus the rule of law. In the case of national emergencies, Article 353, and in the case of President's rule in a State, Article 356(1) clearly delineate the legal effects of the emergency and outline the powers that can be exercised by the Union Government and Parliament during such emergencies. As a result, the delegation of powers to the President and Parliament are also governed by the constitutional text of Part XVIII. The key consequence of the Constitution itself providing for emergency powers is a negation of any extra‑legal or extra‑constitutional power and a reiteration of the supremacy of the rule of law. All governmental power, even during an emergency, must be exercised subject to constitutional constraints. The task of the Supreme Court of India is not to infer any implied extra‑constitutional limitations on the Union's power during the invocation of President's rule but rather to interpret the relevant constitutional provisions and scheme to determine if the Constitution places any limits on the Union's power during the invocation of President's rule, and if so, what those limits are., The powers under Articles 352 and 356 cannot be properly understood without a reference to the implications of these powers on the principle of federalism. Both national emergencies and the imposition of President's rule represent limited constitutionally sanctioned exceptions to the federal principle which ordinarily dictates that the State Governments and Legislatures are supreme within their sphere of operation. In the limited circumstances set out in Articles 352 and 356, the Constitution itself necessitates the temporary and limited delegation of power to the Union to restore the ordinary operation of the Constitution., Article 352 grants the President the power to issue a Proclamation of emergency if he is satisfied that a grave emergency exists which threatens the security of India or any part of the territory, or is threatened by war, external aggression or armed rebellion. Similar to Article 356, the Proclamation is required to be approved by both Houses of Parliament. Article 353 stipulates that when a national emergency is in operation, the executive power of the Union shall extend to directing the States on the manner of exercising their executive power, and the power of Parliament to make laws shall extend to matters in the State List. In addition, when a national emergency is in force, Article 19 of the Constitution and the right to move the Supreme Court of India for the enforcement of rights under Part III (except Articles 20 and 21) are suspended. Thus, any law under Article 358 or Article 359 or any executive action cannot be challenged on the ground that they violate the provisions of Part III (other than Articles 20 and 21)., The executive and legislative power conferred on the Union upon the issuance of a Proclamation under Article 356 is narrow when compared to the power conferred when a Proclamation is issued under Article 352 for the following reasons: The grounds for issuing a Proclamation under Article 352 are much graver than those for issuing a Proclamation under Article 356. Article 352 covers threats to the security of the nation as a whole or parts of it. The ground of internal aggression in Article 352 was substituted with armed rebellion by the Constitution (Forty‑fourth Amendment) Act 1978. The substitution indicates that a national emergency, which has wide repercussions including the suspension of fundamental rights, can be declared only in grave situations. Consequently, the executive and legislative power that the Union would require to handle an emergency under Article 352 will differ from the power required to handle a failure of constitutional machinery under Article 356. Article 358 creates a hierarchy even amongst the grounds for declaring a national emergency. Article 19 can only be suspended when emergency is declared upon the territory being threatened by war or external aggression; the provision specifically excludes the ground of armed rebellion. This exclusion indicates that the suspension of Article 19 is necessary only when a national emergency is declared on graver grounds, supporting the inference that the scope of executive and legislative power exercised by the Union relates to the ground for which emergency powers are invoked. When a national emergency is declared, the executive power of the Union shall extend to giving directions to the State and Parliament to make laws on any subject, notwithstanding that it is beyond the scope of its legislative powers. Article 252 expressly recognises this principle, stating that Parliament, when a Proclamation of emergency is in operation, shall have the power to make laws for the whole or any part of the territory of India even on matters enumerated in List II of the Seventh Schedule. However, when a Proclamation under Article 356 is issued, the President may assume or declare powers mentioned in sub‑clauses (a), (b) and (c) of Article 356(1). Thus, while the powers mentioned in Article 353 are a natural consequence of declaring a national emergency, the powers mentioned in sub‑clauses (a), (b) and (c) of Article 356(1) do not automatically flow from the exercise of power under Article 356. Rather, the President, on application of mind, must decide the scope of exercise of powers., Article 356 stipulates that when the President is satisfied that a situation has arisen in which the government of the State cannot be carried out in accordance with the provisions of the Constitution, the President may by Proclamation: (a) assume to himself all or any of the functions of the Government of the State, and all or any of the powers vested in or exercisable by the Governor or any authority in the State other than the Legislature of the State; (b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament; and (c) make such incidental or consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation. This includes the power to suspend in whole or in part any of the provisions of this Constitution relating to any body or authority in the State., Article 356 indicates that the powers stipulated in clauses (a), (b) and (c) of Article 356(1) are not automatically invoked when a Proclamation is issued. The Proclamation by the President must stipulate the scope of the powers which will be exercised by the Union. The suspension of the State Government is a necessary consequence of issuing a Proclamation under Article 356. The President, while issuing a Proclamation, may exercise all or any of the functions of the State Government and the powers of the Governor. The President exercises the powers of the Governor as a constitutional head and the functions of the State Government as a political executive, on the aid and advice of the Union Council of Ministers. However, Article 356(1)(a) does not opt for an all‑or‑none formula. The phrase \all or any\ does not indicate that the Union Government can exercise a part of the functions of the State Government while the State Government exercises the remainder; the suspension of the State Government is an automatic consequence of the Proclamation. It rather indicates that the scope of power exercised by the Union Government must depend on the circumstances for issuing the Proclamation. The President, in exercise of the powers of the Governor, may either dissolve the Legislative Assembly of the State or direct that the Assembly shall be in suspended animation. The President may exercise the power under Article 356(1)(b) to confer the State's legislative powers on Parliament, which is independent of the power under Article 356(1)(a). By virtue of Article 356(1)(c), the President has the power to make such incidental and consequential provisions as are necessary or desirable to give effect to the objects of the Proclamation, which also includes the power to suspend provisions of the Constitution relating to any body or authority in the State. However, the President can neither exercise the powers vested in the High Court nor suspend provisions related to the High Court. Three features of Article 356(1)(c) must be noted to understand its purpose: first, unlike clauses (a) and (b) which deal with specific powers, clause (c) is worded broadly and encapsulates the power to make incidental and consequential provisions to give effect to the object of the Proclamation; second, the power prescribed in clause (c) includes the power of the President to suspend a part of the Constitution related to a body but is not limited to it; third, the President's power to suspend or take over the powers of any authority does not extend to the powers of the High Court. Clauses (a), (b) and (c) of Article 356(1) grant the President independent powers, and clause (c) is broad enough to encapsulate the power of the President to assume functions under clause (a) and declare under clause (b) that the powers of the Legislature of the State shall be exercisable by Parliament., The principle underlying Article 356(1)(c) is that the exercise of power by the President must be desirable or necessary to give effect to the objects of the Proclamation. The phrases \necessary\ and \desirable\ in Article 356(1)(c) capture differing standards of relationship with the object. While \necessary\ encapsulates the meaning of that which is inevitable or unavoidable, thereby introducing a stringent standard, the phrase \desirable\ encapsulates the meaning of possible or suitable, providing a broader standard. The commonality in both the necessity and desirability standards is that the exercise of power must have a reasonable nexus with the object of the Proclamation. Thus, the principle which runs through Article 356(1)(c) and also guides the exercise of power under Article 356(1)(a) is that the exercise of power must have a reasonable nexus with the object of the Proclamation., The Sarkaria Commission identified four situations where the exercise of power under Article 356 might be justified: (a) political crisis arising from the inability of any party or coalition of parties to form a workable majority; (b) internal subversion resulting from an effort of a State government to undermine responsible government; (c) physical breakdown following an inability to respond to internal disturbance; and (d) non‑compliance with the Union, for example by refusing to follow the directions during war. Though the objective in each of the above situations is to restore the constitutional machinery in the State, the specific object of issuing the Proclamation differs. While applying the standard identified in the preceding paragraph, the Supreme Court of India must consider the validity of the exercise of power against the specific object or purpose for which the Proclamation under Article 356 was issued., Actions taken during the subsistence of a Proclamation must bear a proximate relationship with the need to discharge the exigencies of governance during the period over which the Proclamation continues to remain in force in the State. The exercise of the power under Article 356 is necessitated by the failure of the constitutional machinery in the State. The ultimate object and purpose of the constitutional arrangement envisaged in the article is to restore the functioning of the constitutional machinery in the State. The tenure of the Proclamation is limited in time so that the federal constitutional mechanism is eventually restored. Hence, legislative and executive action must be geared towards ensuring that the required tasks of governance are carried out during the tenure of the Proclamation. Legislative and executive action must bear a proximate relationship to the object and purpose underlying the suspension of the constitutional machinery in the State., While the actions taken after the imposition of President's rule are subject to judicial review on the grounds indicated above, the scope of review will nonetheless be limited. It would be too stringent an approach to suggest that every action of the President and Parliament must be necessary to further the objects of the Proclamation. As Justice Sawant observed in SR Bommai (supra), when scrutinising the actions taken after the imposition of President's rule, there is every risk and fear of the Supreme Court of India undertaking upon itself the task of evaluating with fine scales and through its own lens the comparative merit of one measure rather than another., During the imposition of President's rule, there may be hundreds, if not thousands, of decisions that need to be taken by the President and Parliament on behalf of the State Government to ensure the day-to-day administration of the State continues and the impact of President's rule on the daily life of citizens is reduced. If every action taken by the President and Parliament on behalf of a State were open to challenge, this would effectively bring before the Supreme Court of India every person who disagreed with an action taken during President's rule. Such an approach would be contrary to the express text of Articles 356(1)(a), 356(1)(b) and 356(1)(c), which entrusts the governance of the State to the Union Executive and Parliament during the period of President's rule. Another reason why the level of judicial oversight over the actions taken during the imposition of President's rule may not be as strict as suggested by the petitioners is that most actions taken by the President for interim governance can be reversed by the State Government when it returns to power. Any orders, appointments or decisions taken by the President can subsequently be rescinded or reversed by the State Government upon a return to normalcy. Similarly, even if Parliament were to enact legislation on behalf of the State Legislature, such legislation could subsequently be repealed by the State Legislature after the Proclamation under Article 356 ceases to operate. Thus, the political process can correct itself and any differences that have arisen between the democratic will of the people exercised through their elected representatives in the State and the decisions taken by the President and Parliament can be ironed out upon a return to normalcy. For these reasons, we do not believe that the Supreme Court of India ought to sit in appeal over every decision taken by the President during the imposition of Article 356., When a Proclamation under Article 356 is in force, there are innumerable decisions taken by the Union Government on behalf of the State Government for day-to-day administration. Every decision and action taken by the Union Executive on behalf of the State is not subject to challenge. Opening up challenge to every decision would lead to chaos and uncertainty and would effectively put the administration in the State at a standstill. The Supreme Court of India would enter into the question of whether it was a valid exercise of power only when the petitioner makes a prima facie case that the exercise of power is mala fide or extraneous. After the petitioner makes a prima facie case, the onus shifts to the Union to justify that the exercise of power had a reasonable nexus with the object of the Proclamation., The petitioners submitted that the power under Article 356 does not extend towards making fundamental, permanent and irrevocable changes, which an eventually reconstituted elected assembly and government would be constitutionally unable to reverse. According to the submission, the power under Article 356 must be limited to restorative actions, alongside directions or orders that are necessary for the purpose of daily administration. To buttress this point, reference was made to Article 357(2), which provides that any law made in exercise of the power of the Legislature of the State (which Parliament would not otherwise have been competent to enact) shall not cease to operate until altered, repealed or amended by a competent Legislature, i.e., the Legislative Assembly of the State., Article 357(1)(a) stipulates that Parliament may confer on the President the power to make laws as well as the power to delegate this law‑making power to any other authority. Before the Constitution (Forty‑second Amendment) Act 1976, Article 357(2) stated that any law made by Parliament or the authority authorised by it, which the authority would not have had the competence to enact but for the Proclamation under Article 356, shall, to the extent of incompetency, cease to have effect within one year from the Proclamation ceasing to exist, unless the law is repealed, modified or re‑enacted by the Legislative Assembly of that State before that period. The provision also expressly saved the things done before the expiry of one year. After the Constitution (Forty‑second Amendment) Act 1976, Article 357(2) now stipulates that any such law made by Parliament or by the delegated authority shall continue to be in force even after the Proclamation has ceased to operate until such law is repealed, altered or amended. While before the amendment the law to the extent of incompetency would automatically cease to exist after a buffer period, an express repeal by the competent legislature is required for the law to cease to exist after the amendment., The impact of the amendment to Article 357(2) is two‑fold: first, Article 357(2) is an enabling provision whereby, despite incompetence, the law is valid until it is altered or repealed by the State legislature. Before the amendment, an affirmative act from the State legislature after discussion was necessary for the law to continue in force. After the amendment, an affirmative act of approval is not required from the State legislature, but it is open to the legislature to repeal or modify the law. Second, Article 357(2) before the amendment contained a provision saving the things done before the expiration of the said period. This provision was necessary because the law would cease to operate after the buffer period, raising doubts about actions taken during the operation of the law. The savings clause has been deleted after the amendment since a law enacted during the term of the Proclamation continues in force even after the Proclamation has ceased to exist until it is expressly repealed. The repealing statute would, in such a case, make provisions for actions taken during the subsistence of the legislation. Article 367(1) also applies the provisions of the General Clauses Act, 1897 to the interpretation of the Constitution., A reading of Article 357(2) indicates that the principle of irrevocability cannot be derived from the provision for the following reasons: (a) Article 356, by vesting the President with the power to assume the functions of the State executive and declare that Parliament shall exercise the power of the State legislature, enables the President and Parliament to exercise functions which they are otherwise incompetent to. Article 357 states that laws which Parliament is otherwise incompetent to enact shall be valid even after the Proclamation ceases to be in force until the State legislature repeals or modifies such laws. Thus, until such a law is by an affirmative action either repealed or modified, the law will be valid. The provision only confers the power to the restored State legislature to restore the legislative position as it existed before the Proclamation by repealing the enacted statute and does not place any limitations on the exercise of power under Article 356. (b) Article 357 only deals with the validity of laws after the Proclamation ceases to exist and not the validity of executive actions taken by the Union Government. Even if, for the sake of argument, the principle of irrevocability runs through Article 357(2), this principle cannot be imported to limit the scope of the exercise of executive power when the Proclamation is in force. (c) Article 357(2) encapsulates the working of the Indian federal model by providing that, though the division of powers between the Union and the State legislatures—a core component of the federal structure—can be altered during the subsistence of the Proclamation under Article 356, the federating units retain the power to reverse or modify the changes brought by the Union during the subsistence of the Proclamation. In that sense, Article 357(2) enables the restoration of federal principles., The petitioners also relied on Krishna Kumar Singh (supra) to argue that irrevocable actions cannot be taken after a Proclamation under Article 356 is issued. In Krishna Kumar Singh (supra), one of the issues before the Supreme Court of India was whether the legal effects or consequences of an Ordinance stand obliterated upon the lapsing of an Ordinance or upon the Legislative Assembly passing a resolution disapproving the Ordinance. Constitution Benches of the Supreme Court of India in Bhupendra Kumar Bose v. State of Orissa and T. Venkata Reddy v. State of Andhra Pradesh had held that the rights created by an Ordinance have an enduring effect even after the Ordinance ceases to exist. The premise of the decision was that the effects of an Ordinance must be assessed on the basis of the same yardstick that applies to temporary enactments. One of us (Justice D. Y. Chandrachud, as he then was) writing for the majority held that there is a fundamental fallacy in equating an Ordinance with a temporary enactment because an Ordinance, though deemed to be a law in view of the deeming fiction in Article 213, comes into force through an executive action.
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Supreme Court of India held that when an Ordinance ceases to exist, the rights and other consequences created by the Ordinance also cease to exist for three reasons: first, Article 213 unlike other provisions of the Constitution (such as Articles 358(1) and 359(1)) does not have a savings clause which saves the actions or things done when the Ordinance was in force; second, the theory of enduring rights attributes a degree of permanence to the power to promulgate Ordinances which derogates from the principle of parliamentary supremacy; and third, in SR Bommai (supra), Supreme Court of India held that irrevocable actions cannot be taken until the Proclamation issued under Article 356 is approved by Parliament. This principle was held to be applicable to Ordinance making power as well., A subsequent issue which arose before Supreme Court of India in Krishna Kumar Singh (supra) was on the question of relief. That is, what relief could the Court grant where restoration of status quo ante was not possible. Supreme Court of India held that while deciding on the relief, Supreme Court of India must decide if undoing what had been done under the Ordinance would manifestly be contrary to public interest. Supreme Court of India further observed that impracticality cannot be raised to an independent status but it can be one of the aspects which the Court must consider while assessing public interest., At a preliminary level, the issue in Krishna Kumar Singh (supra) was whether the consequence of an Ordinance can subsist even after the Ordinance ceases to exist or whether the rights created by an Ordinance cease to exist along with the Ordinance. An Ordinance ceases to exist on the expiry of six weeks from the reassembly of the Legislature or when before the said period, a resolution disapproving the Ordinance is passed. The provisions dealing with Ordinance making power (Article 123 and 213) do not contain a clause saving actions taken under an Ordinance after it ceases to exist. As discussed above, Article 356 is placed differently by virtue of Article 357(2), whereby laws enacted by Parliament in exercise of the State legislature's power do not cease to exist merely on the expiry of the Proclamation, and thus there was no necessity for a savings clause., Finally, Supreme Court of India by following the line of approach taken in SR Bommai (supra) interpreted the phrase cease to exist in Article 213 broadly because the narrow interpretation would lead to the abrogation of the principle of parliamentary supremacy where the effects of executive action would have a permanent effect without any parliamentary oversight. To recall, in SR Bommai (supra), Supreme Court of India held that irreversible changes cannot be made before the Proclamation under Article 356 is approved by both Houses of Parliament under Article 356(3). Otherwise, the purpose of the provision which is to place a Parliamentary check on the exercise of power by the executive would become nugatory. In this context, Justice Jeevan Reddy made the following observations: The expression approval has an intrinsic meaning which cannot be ignored. Disapproval or non-approval means that the Houses of Parliament are saying that the President's action was not justified or warranted and that it shall no longer continue. In such a case, the Proclamation lapses, i.e., ceases to be in operation at the end of two months the necessary consequence of which is the status quo ante revives. To say that notwithstanding the disapproval or non-approval, the status quo ante does not revive is to rob the concept of approval of its content and meaning. Such a view renders the check provided by clause (3) ineffective and of no significance whatsoever. The Executive would be telling Parliament: I have dismissed the Government. Now whether you approve or disapprove is of no consequence because the Government in no event can be revived. The deed is done. You better approve it because you have practically no choice. We do not think that such a course is consistent with the principle of parliamentary supremacy and parliamentary control over the Executive, the basic premise of parliamentary supremacy. It would indeed mean supremacy of the Executive over Parliament., Supreme Court of India in SR Bommai (supra) distinguished between the exercise of power before a Proclamation is approved by Parliament and after the approval. The approval of the Proclamation by Parliament grants legislative legitimacy to the executive action under Article 356. The argument of democratic deficit fails after the Proclamation is approved by Parliament. For the above reasons, the rejection of the enduring rights theory in Krishna Kumar Singh (supra) cannot be transposed to the interpretation on the limits on the exercise of power under Article 356. The interpretation of neither the text of Articles 356 and 357 nor the decision of Supreme Court of India in Krishna Kumar Singh (supra) lead to the inference that power under Article 356 cannot be exercised to create irreversible consequences., Any other interpretation would also lead to the Court testing the validity of outcomes and not the exercise of power. Challenging the exercise of power on the ground of irreversibility would open the way for challenging everyday administrative actions against which we have cautioned above. Hence, we cannot accept the proposition which has been urged on behalf of the Petitioners that the exercise of power by the President under Article 356 of the Constitution can be challenged on the ground that it has given rise to irreversible consequences., Article 356(1)(a) states that the President may declare that the powers of the Legislature of the State shall be exercised by or under the authority of Parliament. There are two competing interpretations to the phrase powers of the Legislature of the State. It could be read expansively to include all the powers of the State Legislature or narrowly to place limitations on the nature of legislative power that can be exercised by Parliament. The petitioners term it as the distinction between legislative and constituent power, or the law and non-law powers of the State legislature. However, regardless of the manner in which the distinction is drawn, the issue is whether all the powers of the Legislature of the State (that is, both law‑making and non‑law‑making powers) are vested in Parliament when the President issues a declaration in terms of Article 356(1)(b)., In addition to the legislative powers granted to the States under List II of the Seventh Schedule, the States have also been granted various non‑law‑making powers to ensure the voice of their electorates are well represented at the constitutional plane. This is a recognition that even though Parliament has representatives from the entire country, and the Rajya Sabha is elected entirely by State Legislatures, the outlook of such a body is fundamentally national. The actual polity of Parliament is the entire nation. The Constitution recognises that this creates a risk that the interests of specific states may not be adequately represented despite such States being particularly impacted. For example, the power to abolish or create a Legislative Council in a State is conferred on Parliament under Article 169 as such a law has national consequences, such as for the election of the President. However, it is also a power that would directly impact the constitutional governance within the concerned State. Thus, despite Parliament and the Rajya Sabha possessing Members from the concerned State, the Constitution provides an extra layer of federal representation to the State. Article 169 states that no law for the creation of a Legislative Council in a State can be passed by Parliament without the Legislative Assembly of the State first passing a resolution by a two‑thirds majority. This ensures that the constitutional governance of the State cannot be overridden by national considerations., A few of the constitutional (or non‑law‑making) powers held by the Legislature of the State are: (a) the power of the State legislatures to ratify an amendment; (b) election of the President by elected members of the Legislative Assemblies of the State; (c) election of the representatives of each State to the Rajya Sabha by the elected members of the Legislative Assembly of the State; and (e) the Houses of Legislatures in two or more States passing a resolution to the effect that Parliament must legislate upon certain matters in those states, matters it otherwise does not have the power to legislate upon. As we have noted above, Article 356(1)(b) does not make a distinction between legislative and constitutional powers. Clause (b) of Article 356(1) unlike clause (a) of Article 356(1) also does not make a distinction between all or any powers. Clause (b) states that the President shall by a Proclamation make a declaration that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament., Article 357 provides the scope of the power which can be exercised by Parliament upon a declaration being made under Article 356(1)(b). Article 357(1) is extracted below: Exercise of legislative powers under Proclamation issued under Article 356 (1) Where by a Proclamation issued under clause (1) of Article 356, it has been declared that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament, it shall be competent: (a) for Parliament to confer on the President the power of the Legislature of the State to make laws, and to authorise the President to delegate, subject to such conditions as he may think fit to impose, the power so conferred to any other authority to be specified by him in that behalf; (b) for Parliament, or for the President or other authority in whom such power to make laws is vested under sub‑clause (a), to make laws conferring powers and imposing duties, or authorising the conferring of powers and the imposition of duties, upon the Union or officers and authorities thereof; (c) for the President to authorise when the House of the People is not in session expenditure from the Consolidated Fund of the State pending the sanction of such expenditure by Parliament., Article 357, as indicated in the marginal note, deals with the exercise of legislative powers upon the issuance of a Proclamation under Article 356. The provision states that upon a declaration being made under Article 356(1)(b), it shall be competent: a. For Parliament to confer law‑making powers on the President or authorise the President to delegate the power to any other authority; b. For Parliament to make laws conferring powers and duties upon the Union or officers and authorities; and c. For the President to authorise expenditure from the Consolidated Fund of the State when the House of the People is not in session and pending sanction of such expenditure by Parliament., Article 357(1) states that it shall be competent for Parliament to exercise the powers stipulated in the clauses. Article 357(1) confers the law‑making body with powers which are otherwise not available to it. By virtue of Article 357(1)(a), Parliament can delegate the law‑making function to the President and authorise the President to delegate the power to any other authority. This is a unique power granted by the provision which is an exception to the executive and legislative divide between Parliament and the executive. Under Article 357(1)(b), Parliament can (acting as the Legislative Assembly of the State) enact laws conferring powers and imposing duties upon the Union. By Article 357(1)(c), the President is granted the power to authorise expenditure in deviation from the procedure prescribed in Article 204 by which expenditure from the Consolidated fund of the State can only be authorised by a law. The phrase competence in Article 357(1) has an expansive and not a restrictive scope., Article 357(1) dwells on the competence of Parliament and the President from a constitutional perspective, when under a Proclamation under Article 356, the powers of the legislature of the State shall be exercisable by or under the authority of Parliament. The expression powers of the legislature of the state in Article 356(1)(b) and in the prefatory part of Article 357(1) is broader in content than the power of the legislature of the state to make laws in Article 357(1)(a) and 357(1)(b). The latter is the law‑making power of the state legislature while the former includes but is not confined to the power to legislate. Clause (a) of Article 357(1) deals with the power of the legislature of the state to make laws. Clause (b) refers to the same subject when it speaks of the authority in whom such power to make laws is vested under sub‑clause (a). Article 357 uses the expression competent initially, in the prefatory part, to indicate certain actions which flow from the declaration under Article 356 that the power of the state legislature shall be exercisable by or under the authority of Parliament. Clause 2 also uses the expression competent to indicate that a law made by Parliament or the President while exercising the power of the legislature of the state during a Proclamation under Article 356 shall continue in force after the Proclamation has ceased to operate even though such a law would not have been competent in the absence of a Proclamation. The state legislature can thereafter modify or repeal the law. In Clause 1 the expression competent is used to signify an empowerment; an entrustment of power. In Clause 2, the same expression is used to mean the constitutional capacity to make the law., Article 356(1)(b) indicates that on a Proclamation being issued, the President may declare that the powers of the legislature of the state shall be exercisable by or under the authority of Parliament. Article 357 provides for what is subsumed, when by a declaration under Article 356, the powers of the legislature of the State are exercisable by or under the authority of Parliament. The text of the prefatory part of Article 357 is similar to the language of Article 356(1)(b). However, the prefatory part of article 357 refers to the entirety of Clause 1 of Article 356. The ambit of Article 356(1)(b) is clearly broader than the canvas of Article 357(1). Article 356(1)(b) would comprehend both law‑making and non‑law‑making powers when it uses the expression powers exercisable by the legislature of the state. Clause (a) of Article 357(1) and Clause (b) which refers to Clause (a) on the other hand refer to the power of the legislature of the state to make laws. This is the legislative power referable to Articles 245 and 246. It would be difficult to read Article 357(1) as restricting the ambit of the conferment of power under Article 356(1)(b). The basic purpose of Article 357 is to ensure that while exercising the powers of the legislature of the State pursuant to a declaration under Article 356(1), Parliament, or as the case may be, the President are not impeded by an absence of competence which would have impeded the exercise of a similar power in the absence of a Proclamation under Article 356. The description in Article 357 of what could lie within the competence of Parliament or the President during a Proclamation which vests the powers of the State Legislature in Parliament cannot restrict the powers available under Article 356. Article 357 does not contain a non‑obstante provision which overrides Article 356. Article 357 cannot be read to exclude everything apart from sub‑clauses (a), (b) and (c) of Clause 1 from the ambit of Article 356. To interpret Article 357(1) as a restriction on Article 356(1)(b) would be to read in a restriction which the plain terms of the Constitution do not provide. To put it differently, acceptance of a contrary interpretation would require the court to read the expression only to precede the expression competent in the prefatory part of Article 357. This will amount to judicial rewriting of the text of the Constitution which is plainly impermissible., A seven‑Judge Bench of Supreme Court of India in In re Presidential Poll (203) held that the dissolution of the Legislative Assembly is not a ground for preventing the holding of the election on the expiry of the term of the President. So, constitutional functions are not put on hold when the Legislative Assembly of a State is dissolved. We are conscious that the constitutional powers of the State legislature are crucial facets of the principle of federalism. These provisions create a space for the States to be seen and heard and for the States to have an equal say in the democratic functioning of the Nation. It is not only the letter of the law which makes a Constitution federal but also the exercise of such power. Interpreting the phrase powers of the legislature to allow Parliament to exercise all constitutional powers which are vested in the Legislative Assembly of the State would reduce the power of the State. However, the Constitution recognises such reduction of federal power when the Proclamation under Article 356 is in force. As we have held above, the exercise of power after a Proclamation under Article 356 is issued is subject to judicial review. An immunity from judicial scrutiny does not attach to the exercise of constitutional powers of the Legislature of the State. The Court while judicially reviewing the exercise of power can determine if the exercise of the constitutional power of the Legislature of the State has a reasonable nexus with the object sought to be achieved by the Proclamation., In view of the discussion above, the following standard is laid down to assess actions under Article 356 after the Proclamation has been issued: a. The exercise of power by the President under Article 356 must have a reasonable nexus to the object of the Proclamation; b. The exercise of power by the President will not be rendered invalid merely on the ground of irreversibility of the actions; c. The person challenging the exercise of power must prima facie establish that it is a mala fide or extraneous exercise of power. After a prima facie case is made, the onus shifts to the Union to justify that the exercise of power had a reasonable nexus with object of the Proclamation; and d. The exercise of power by the President for everyday administration of the State is not ordinarily subject to judicial review., The historical context to Article 370. In the section above, Supreme Court of India has noted the historical context in which the State of Jammu and Kashmir had acceded to the Dominion of India to ascertain whether the State held an element of sovereignty. In this section, the historical context with respect to Jammu and Kashmir is referred to for the purpose of identifying the reason for adopting Article 370. A reference to the historical context in which Article 370 was included will aid Supreme Court of India in determining whether the provision is temporary or permanent in nature., The British Parliament enacted the Indian Independence Act 1947. In terms of Section 1(1) of the Act, two independent Dominions India and Pakistan were to be established from 15 August 1947. Section 7(1)(b) stipulated that following independence, the sovereignty of the British monarch over Indian States would lapse and return to the Rulers of those States. Consequently, as sovereign States, 562 Princely States had the choice to remain independent or to accede to either of the two Dominions established by the Act. Section 8 enunciated that as a transitional measure, the provisions of the Government of India Act 1935 would continue to apply to the two Dominions subject to conditions. In pursuance of the provisions of Section 9 of the Indian Independence Act 1947, the Governor‑General of India issued the India (Provisional Constitution) Order 1947 which made certain provisions of the Government of India Act 1935 applicable to India until other provisions were made applicable by the Constituent Assembly. Section 6 of the Government of India Act 1935 became applicable through the Order which dealt with the accession of Princely States to India through the execution of Instrument of Accession., Jammu and Kashmir had not executed an Instrument of Accession when India had attained independence. Soon after which on 27 September 1947, a letter was addressed by Nehru to Sardar Patel noting that he had received many reports of a dangerous and deteriorating situation in Kashmir. Nehru stated that with the onset of the winter, Kashmir would be cut off from the rest of India. Nehru stated that the Muslim League in the Punjab and the North‑West Frontier Province were making preparations to enter Kashmir in considerable numbers, stating further that: I understand that the Pakistan strategy is to infiltrate into Kashmir now and to take some big action as soon as Kashmir is more or less isolated because of the coming winter., The letter stated that once the State acceded to India, it would become difficult for Pakistan to invade it officially or unofficially without coming into conflict with the Indian Union. If, however, there was to be delay in accession, Pakistan would go ahead without much fear of consequences especially when the winter isolates Kashmir. Nehru concluded his letter stating: I would again add that time is of the essence of the business and things must be done in a way so as to bring about the accession of Kashmir to the Indian Union as rapidly as possible with the cooperation of Sheikh Abdullah., On 26 October 1947, Maharaja Hari Singh addressed a communication to Lord Mountbatten, the Governor‑General noting that a grave emergency has arisen in his State leading him to request immediate assistance of the Government. The letter noted that the Maharaja had wanted to take time to decide to which Dominion he should accede or whether it would be in the best interest of both the Dominions as well as Jammu and Kashmir for the State to stand independent. The Maharaja stated that while Pakistan, responding to his request, entered into a Standstill Agreement with the State, the Dominion of India desired further discussion which could not be arranged by him in view of the grave developments which took place as elucidated in his letter. The Pakistan government, he noted, permitted steady and increasing strangulation of supplies like food, salt and petrol to Jammu and Kashmir in spite of the Standstill Agreement. The letter of the Maharaja spoke of the grave danger to the security and existence of Jammu and Kashmir occasioned by the infiltration of soldiers in plain clothes who were threatening to capture Srinagar. The letter contains a statement of the position which the State of Jammu and Kashmir was confronted with, in the following extracts: Afridis, soldiers in plain clothes, and desperadoes with modern weapons have been allowed to infiltrate into the State at first in Poonch and then in Sialkot and finally in mass area adjoining Hazara District on the Ramkot side. The result has been that the limited number of troops at the disposal of the State had to be dispersed and thus had to face the enemy at the several points simultaneously, that it has become difficult to stop the wanton destruction of life and property and looting. The Mohara power house which supplies the electric current to the whole of Srinagar has been burnt. The number of women who have been kidnapped and raped and makes my heart bleed. The wild forces thus let loose on the State are marching on with the aim of capturing Srinagar, the summer Capital of my Government, as first step to over running the whole State. The mass infiltration tribesmen drawn from the distant areas of the North‑West Frontier coming regularly in motor trucks using Mansehra‑Muzaffarabad Road and fully armed with up‑to‑date weapons cannot possibly be done without the knowing of the Provincial Government of the North‑West Frontier Province and the Government of Pakistan. In spite of repeated requests made by my Government no attempt has been made to check these raiders or stop them from coming to my State. The Pakistan Radio even put out a story that a Provisional Government has been set up in Kashmir., The Maharaja sought help and recognised that India would be able to lend assistance only if the State of Jammu and Kashmir acceded to India: I have accordingly decided to do so and I attach the Instrument of Accession for acceptance by your Government. The other alternative is to leave my State and my people to free‑booters. On this basis no civilized Government can exist or be maintained. The alternative I will never allow to happen as long as I am Ruler of the State and I have life to defend my country., The offer of accession noted that if the State of Jammu and Kashmir has to be saved, immediate assistance must be available at Srinagar. The letter proposed the setting up of an interim government with Sheikh Abdullah being asked to carry out the responsibilities as Prime Minister in this emergency., Maharaja Hari Singh signed the Instrument of Accession on 26 October 1947. The Instrument was accepted by the Governor‑General on 27 October 1947. In his communication dated 27 October 1947 to the Maharaja, the Governor‑General noted that in the special circumstances mentioned by your Highness, my Government has decided to accept the accession of Kashmir State to the Dominion of India. The letter of the Governor General also noted that the policy of their Government was that in case of any State where the issue of accession is a subject of dispute, it is my Government's wish that the question of accession should be decided in accordance with the wishes of the people of the State. Thus, the letter noted that in the case of Jammu and Kashmir, the question of the State's accession must be settled with reference to the people of the State: my Government have decided to accept the accession of Kashmir State to the Dominion of India. Consistently with their policy that in the case of any State where the issue of accession has been the subject of dispute, the question of accession should be decided in accordance with the wishes of the people of the State, it is my Government's wish that, as soon as law and order have been restored in Kashmir and her soil cleared of the invader, the question of the State's accession should be settled by a reference to the people., Shri Mehr Chand Mahajan (later a judge of the Supreme Court and Chief Justice of India) had taken over as Prime Minister of Jammu and Kashmir on 15 October 1947. His Memoirs titled Looking Back (204) devote an entire Chapter to the Pakistan invasion of Kashmir. Mehr Chand Mahajan provides a detailed account of the events commencing from 23 October 1947. The account can best be captured in his own words in the following extracts: Meanwhile the tribesmen from the frontier using Pakistan lorries, jeeps and other conveyances and armed with Pakistani weapons had entered the State on 23 October through Muzaffarabad. These tribesmen were themselves Pakistan nationals; as they advanced they were joined by other Pakistani citizens. The rail had been organised by an ex‑officer of the Political Agency at Peshawar, at the instance and with the connivance of the Pakistan government. Transport, arms, ammunition and military officers were supplied by the Pakistan Government. We had tried to blow the bridge that could provide and did provide access to the tribesmen into Kashmir. But as related earlier, this attempt had failed for want of dynamite in the State. Now they pushed on. At Domel the Muslim officers and soldiers of the State forces who had been guarding this frontier under Col. Narain Singh deserted and joined the raiders after killing their commander in his officer at the Domel dak bungalow. Flushed with arson, loot, and murder, the tribesmen now pushed on the way to Srinagar. At Garhi, the Chief of the Dogra Army staff with his small force tried to stop their advance. He held them up for sometime but ultimately fell against enormously superior forces., It was the Dussehra Darbar Day on which every year the Maharaja took the salute from the army and held a Darbar. A discussion took place in the palace on the 23rd night whether or not the Darbar should be held in view of the situation that had arisen. The Maharaja was of the opinion that the Darbar should not be held as enough State forces for the ceremonial parade were not available. All that had been left of the army in Srinagar was about four companies of the cavalry. I advised otherwise, being of the opinion that cancellation of the Darbar would unnecessarily create panic in the town. No sooner had we left the Darbar Hall and reached the Mirakadal Bridge, electricity failed. The city was plunged into darkness. I also rang up the power house at Mahoora where a chowkidar came on the line and told me that a wounded captain of the army had come on horseback saying The raiders have come. Run ...
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On 24 October, the Deputy Prime Minister left Srinagar for Delhi carrying a letter of accession to India from the Maharaja and a personal letter to Pandit Jawaharlal Nehru and another to Sardar Vallabhbhai Patel asking for military help in men, arms and ammunition. I also wrote to both requesting them to save the State from Pakistan's unprovoked aggression. After assuming office on 15 October, I sent Colonel Baldev Singh Pathani and our military adviser, Colonel Kashmir Singh, to Poonch and Kotli to help our small military force there and to inspire confidence in the citizens. Colonel Baldev Singh remained at Kotli to give heart to the citizens at great personal risk while Colonel Kashmir Singh returned to Srinagar to apprise the Maharaja about the military situation in Poonch and in Kotli., After consulting the Officer Commanding, Srinagar Forces, the Governor of Srinagar and the Inspector General of Police, we decided in the afternoon of 25 that the raiders should be given a receding battle. Every effort was to be made to secure that our depleted forces suffered as few casualties as possible. An all‑out effort was to be made to check the advance of the raiders to the town of Srinagar. As we were groping for a way out, Mister V. P. Menon, Secretary of the Ministry of States, arrived in Srinagar by plane. He came straight to my residence, told me that he had come to take me to New Delhi, and after His Highness left at 2 A.M. an officer from the front informed me that the Dogra Chief of Staff had been wounded and was lying on the road with six or seven bullets in his body. He had ordered the rest of his troops to retreat to a position of advantage but did not wish to leave the place where he lay. Though fatally wounded, he was determined to give a fight as long as he was alive., The next morning Mister V. P. Menon and I flew to Delhi. We arrived at Safdarjung Airport at about 8 A.M. where a car was waiting. I immediately drove to the Prime Minister's House on Yourd Road. The Prime Minister and Sardar Vallabhbhai Patel were there and were apprised of the situation that had arisen. In view of the advance of the raiders towards the towns of Baramulla and Srinagar, I requested immediate military aid on any terms. I said emphatically that the town was taken by the tribesmen, India was strong enough to retake it, but its recapture could not undo the damage that would have resulted. I therefore firmly but respectfully insisted on the acceptance of my request for immediate military aid., The Prime Minister observed that it was not easy on the spur of the moment to send troops, as such an operation required considerable preparation and arrangement, and the troops could not be moved without due deliberation merely on my demand. I was adamant in my submission; the Prime Minister also stuck to his view. As a last resort I said, \Give us the military force we need. Take the accession and give whatever power you desire to the popular party. The army must fly to save Srinagar this evening or else I will go to Lahore and negotiate terms with Mister Jinnah.\ When I told the Prime Minister of India that I had orders to go to Pakistan in case immediate military aid was not given, he naturally became upset and, in an angry tone, said, \Mahajan, go away.\ I rose to leave the room when Sardar Vallabhbhai Patel detained me by saying in my ear, \Of course, Mahajan, you are not going to Pakistan.\ Just then a piece of paper was passed to the Prime Minister. He read it and in a loud voice said, \Sheikh Sahib also says the same thing.\ It appeared that Sheikh Abdullah had been listening while sitting in one of the bedrooms adjoining the drawing‑room where we were. He now strengthened my hands by telling the Prime Minister that military help must be sent immediately., At 12.45 p.m. Sardar Baldev Singh came and told me that a decision had been taken to send two companies of Indian troops to Srinagar. All the planes in India had been requisitioned for the purpose. He also wanted me to give the commander of this force as much information as I could about the situation in the State. Luckily I had brought with me a plan which showed where the clash between the raiders and the State forces had occurred, the deployment of the raiders and the distribution of the State forces. The Cabinet meeting in the evening affirmed the decision of the Defence Council to give military aid to the Maharaja to drive out the tribesmen. Around dinner time, the Prime Minister sent a message to me that, with Mister V. P. Menon, I should fly to Jammu to inform the Maharaja of this decision and also to get his signature on certain supplementary documents about the accession., Mahajan notes that on 27 October 1947 he received a message that Indian troops had landed at Srinagar and had gone into action. He flew to Jammu with Mister V. P. Menon (the Secretary in the Ministry of States). On their landing in Srinagar, the Indian troops had gone into battle with the tribesmen. After some discussion, formal documents were signed which Mister Menon took back to New Delhi, while I stayed at Jammu. This was a narrow shave. After the failure of the Pakistani attempt to capture both the Maharaja and myself at Bhimber, Mister Jinnah grew impatient. He ordered his British Commander‑in‑Chief to move two brigades of the Pakistani army into Kashmir on 27 October, one from Rawalpindi and another from Sialkot. The Sialkot army was to march to Jammu, take the city and make the Maharaja a prisoner. The Rawalpindi column was to advance to Srinagar and capture the city, all on the excuse that the State should be saved from the anarchy that the tribesmen's raid had produced. The Maharaja having acceded just in time and the Indian Army already in Kashmir, this could have meant pitting Pakistan forces against those of India. Both the dominions owing allegiance to the King and the armies of both being under a Joint Defence Council, such a move, the Pakistani Commander‑in‑Chief told Mister Jinnah, was unthinkable. The King as the ruler of Pakistan could not send his (Pak) armies against his own armies in India. The British Commander‑in‑Chief therefore refused to issue the order and offered to resign. Mister Jinnah had to cancel his orders., Mahajan has stated in his memoir that Prime Minister Nehru indicated three conditions on which the Maharaja had been given the military help. The first was that His Highness should accede to India with regard to three subjects: defence, external affairs and transport. This he had already done. The second was that the internal administration of the State should be democratized and a new constitution be framed on the lines of the model already set out for the State of Mysore. The third condition was that Sheikh Abdullah should be taken into the administration and made responsible for it along with the Prime Minister., Mahajan eventually states that the Indian forces suffered heavily in the first attack but after reinforcements arrived they drove out the raiders from the neighbourhood of Srinagar where they had infiltrated after looting and destroying the town of Baramulla., Mister V. P. Menon provides a detailed account of the events preceding the accession of Jammu and Kashmir to the Union of India in his book titled *The Story of the Integration of the Indian States*. The all‑out invasion of Kashmir started on 22 October 1947. The main raiders' column, which had approximately two hundred to three hundred lorries and consisted of frontier tribesmen estimated at five thousand Afridis, Wazirs, Mahsuds, Swatis and soldiers of the Pakistan Army ‘on leave’ led by some regular officers who knew Kashmir well, advanced from Abbottabad in the North‑West Frontier Province along the Jhelum Valley Road. They captured Garhi and Domel, arrived at the gates of Muzaffarabad. The State battalion, consisting of Muslims and Dogras stationed at Muzaffarabad, was commanded by Lieutenant‑Colonel Narain Singh. All the Muslims in the battalion deserted, shot the Commanding Officer and his adjutant, joined the raiders and acted as advance‑guard to the raiders' column. Only a few days before Lieutenant‑Colonel Narain Singh had been asked by the Maharaja whether he could rely on the loyalty of the Muslim half of his battalion; he unhesitatingly answered, \More than on the Dogras.\ The raiders then marched towards Baramulla along the road leading to Srinagar, their next destination being Uri. All the Muslims in the State Forces had deserted and many had joined the raiders. When Brigadier Rajinder Singh, the Chief of Staff of the State Forces, heard of the desertion of the Muslim personnel and the advance of the raiders, he gathered approximately 150 men and moved towards Uri. There he engaged the raiders for two days and in the rearguard action destroyed the Uri bridge. The Brigadier himself and all his men were cut to pieces in this action, but he and his colleagues will live in history like the gallant Leonidas and his 300 men who held the Persian invaders at Thermopylae. The raiders continued to advance and on 24 October they captured the Mahura Power House, which supplied electricity to Srinagar. Srinagar was plunged in darkness. The raiders announced that they would reach Srinagar on 26 October in time for the Id celebrations at the Srinagar mosque. On the evening of 24 October the Government of India received a desperate appeal for help from the Maharaja. They also received from the Supreme Commander information regarding the raiders' advance and probable intentions., On the morning of 25 October a meeting of the Defence Committee was held, presided over by Lord Mountbatten. This Committee considered the request of the Maharaja for arms and ammunition as also for reinforcements of troops. Lord Mountbatten emphasized that no precipitate action should be taken until the Government of India had fuller information. It was agreed that I should fly to Srinagar immediately in order to study the situation on the spot and to report to the Government of India. Accompanied by Army and Air Force officers and by the late D. N. Kachru, I flew by a B.O.A.C. plane to Srinagar. This was one of the planes which had been chartered for the evacuation of British nationals from Srinagar. When I landed at the airfield, I was oppressed by the stillness as of a graveyard all around. Over everything hung an atmosphere of impending calamity. From the aerodrome we went straight to the residence of the Prime Minister of the State. The road leading from the aerodrome to Srinagar was deserted. At some street corners I noticed volunteers of the National Conference with lathis who challenged passers‑by; the State police were conspicuous by their absence. Mehr Chand Mahajan apprised us of the perilous situation and pleaded for the Government of India to come to the rescue of the State. Mahajan, who is usually self‑possessed, seemed temporarily to have lost his equanimity. From his residence we proceeded to the Maharaja's palace. The Maharaja was completely unnerved by the turn of events and by his sense of lone helplessness. There were practically no State Forces left and the raiders had almost reached the outskirts of Baramulla. At this rate they would be in Srinagar in another day or two. It was no use harping on the past or blaming the Maharaja for his inaction. I am certain that he had never thought of the possibility of an invasion of his State by tribesmen nor of the large‑scale desertions of Muslims from his army and police., The first thing to be done was to get the Maharaja and his family out of Srinagar. The reason for this was obvious. The raiders were close to Baramulla. The Maharaja was quite helpless and, if the Government of India decided not to go to his rescue, there was no doubt about the fate that would befall him and his family in Srinagar. There was also a certainty that the raiders would loot all the valuable possessions in the palace. In these circumstances I advised him to leave immediately for Jammu and to take with him his family and his valuable possessions. After assuring myself that he would leave that night and after gathering all the information I could from people who were in a position to give it, I went to the Guest House in the early hours of the morning for a little rest. Just as I was going to sleep, Mahajan rang me up to say that there were rumours that the raiders had infiltrated into Srinagar and that it would be unsafe for us to remain any longer in the city. I could hardly believe
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Clause 3 of the Instrument of Accession reads as follows: I accept all matters enumerated in List I and List III of the Seventh Schedule to the Act as matters in respect of which the Dominion Legislature may make laws for the United State. Provided that nothing contained in said Lists or in any other provision of the Act shall be deemed to empower the Dominion Legislature to impose any tax or duty in the territories of the United State or to prohibit the imposition of any duty or tax by the Legislature of the United State in the said territories., Similar Instruments of Accession were executed by the States of Madhya Bharat, Patiala and East Punjab States Union, Matsya Union, United State of Rajasthan, Travancore-Cochin, and Mysore. However, the State of Jammu and Kashmir expressed its inability to expand the matters listed in the Instrument of Accession until its Constituent Assembly was formed. The State of Jammu and Kashmir only acceded to Dominion control over the subjects of defence, external affairs, communication, and ancillary matters. The Schedule to the Instrument of Accession executed by the State of Jammu and Kashmir is extracted below:, A. Defence – The naval, military and air forces of the Dominion and any other armed forces raised or maintained by the Dominion; any armed forces, including forces raised or maintained by an acceding State, which are attached to, or operating with, any of the armed forces of the Dominion. Naval, military and air force works, administration of cantonment areas. Arms, firearms, ammunition. Explosives., B. External Affairs – External affairs; the implementation of treaties and agreements with other countries; extradition, including the surrender of criminals and accused persons to parts of His Majesty's Dominions outside India. Admission into, and emigration and expulsion from, India, including regulation of the movements in India of persons who are not British subjects domiciled in India or subjects of any acceding State; pilgrimages to places beyond India. Naturalisation., C. Communications – Posts and telegraphs, including telephones, wireless, broadcasting, and other like forms of communication. Federal railways; the regulation of all railways other than minor railways in respect of safety, maximum and minimum rates and fares, station and services terminal charges, interchange of traffic and the responsibility of railway administrations as carriers of goods and passengers; the regulation of minor railways in respect of safety and the responsibility of the administrations of such railways as carriers of goods and passengers. Maritime shipping and navigation, including shipping and navigation on tidal waters; Admiralty jurisdiction. Port quarantine. Major ports, that is to say, the declaration and delimitation of such ports, and the constitution and powers of Port Authorities therein. Aircraft and air navigation; the provision of aerodromes; regulation and organisation of air traffic and of aerodromes. Lighthouses, including lightships, beacons and other provisions for the safety of shipping and aircraft. Carriage of passengers and goods by sea or by air. Extension of the powers and jurisdiction of members of the police force belonging to any unit to railway area outside that unit., D. Ancillary – Election to the Dominion Legislature, subject to the provisions of the Act and of any Order made thereunder. Offences against laws with respect to any of the aforesaid matters. Inquiries and statistics for the purposes of any of the aforesaid matters. Jurisdiction and powers of all courts, including the Supreme Court of India, with respect to any of the aforesaid matters but, except with the consent of the Ruler of the acceding State, not so as to confer any jurisdiction or powers upon any courts other than courts ordinarily exercising jurisdiction in or in relation to that State., A separate Part was included in the Draft Constitution, numbered as Part VI‑A, which provided for an internal Constitution for the States in Part III, except Jammu and Kashmir. Article 211A of the Draft Constitution stipulated that the provisions of Part VI of the Constitution shall apply to states in Part III as they apply to the States in Part I, subject to certain modifications and omissions. The modifications, inter alia, included: the word Governor shall be substituted with the phrase Rajpramukh; and provisions for the Rajpramukh to be entitled to use their residence without the payment of rent and to be paid such allowances as the President may by general or a special order determine., While introducing the amendment, Dr. B. R. Ambedkar explained that the provisions which apply to Part I States shall be applied to Part III States, but the provisions would necessarily be modified to deal with the special circumstances of the States in Part III. The underlying idea of this Part is that Part VI of the Constitution, which deals with the Constitution of the States, will now automatically apply under Article 211A to States in Part III., Article 238 of the Constitution, before it was repealed by the Constitution (Seventh Amendment) Act 1956, dealt with the internal Constitution of the Part B States. The article stipulated that the provisions of Part VI were applicable to States in Part B subject to the listed modifications. States that will be in Part III have special circumstances for which it is necessary to make some provision; the purpose of this particular amendment is to indicate those particular articles in which these amendments are necessary to deal with the special circumstances of the States in Part III. Otherwise the States in Part III, as far as their internal constitution is concerned, will be on a par with the States in Part I., In view of the peculiar position of the State of Jammu and Kashmir, the Ministry suggested that a special provision be made as a transitional arrangement. The Ministry suggested the following approach for the consideration of the Drafting Committee: Jammu and Kashmir will be placed in Part III States of Schedule I; and a special provision that the power of Parliament to enact laws with respect to the State of Jammu and Kashmir shall be limited to matters specified in the Instrument of Accession until Parliament by law provides that all provisions of the Constitution that apply to Part III States shall apply to Jammu and Kashmir., The Constituent Assembly had to decide upon the procedure to be followed by the States for ratification of the Constitution because the Draft Constitution did not contain any provision prescribing a procedure for ratification by the States. The Assembly was faced with the question of whether the Indian States would be bound by the Constitution framed because of the execution of the Instrument of Accession or whether a separate procedure for ratification was required. After detailed discussion, it was decided that the Rajpramukh or Ruler must accept the entire Constitution of India, which also includes the internal Constitution of the States, on the basis of a resolution adopted by the Constituent Assembly of the State or the Legislature, where such a body exists., The Constituent Assemblies in the States of Mysore, Travancore and Cochin Union, and Saurashtra, which were functioning at that time, accepted the Constitution on behalf of the States after examining its provisions concerning the States. In States where a Constituent Assembly was not formed, the Constitution was to be operative on the basis of the Ruler or Rajpramukh’s acceptance, and the legislatures or constitution‑making bodies when constituted would have the opportunity to propose modifications to the provisions of the Constitution as they applied to the States. Any such amendment proposed would receive earnest consideration., The objective behind this formulation was expressed as follows: This formula has been evolved to meet the difficulty arising out of the fact that constitution‑making bodies are not likely to come into existence in some of the Unions by the time the new Constitution is to come into operation. The underlying purpose is that while the whole of the Constitution will become operative in all the States and Unions as soon as it comes into force, it will be a good political gesture to the popular opinion in the Unions where no Constituent Assemblies have yet come into existence, if their first Legislatures are enabled to express their views on such provisions of the Constitution as are not considered fundamental., The views of the Constituent Assembly would assume the form of recommendation and it would be open to the Union Parliament, which is expected to exercise constituent powers for a period of five years or so, to accept or reject them., In pursuance of the procedure for ratification, all the States issued a proclamation accepting the Constitution of India. On 25 November 1949, a proclamation was issued by Yuvraj Karan Singh declaring that the Constitution of India, insofar as applicable to the State of Jammu and Kashmir, shall govern the constitutional relationship between the Union of India and the State and shall supersede constitutional provisions which are inconsistent with the Constitution of India. The proclamation stated: 'I now hereby declare and direct that the Constitution of India, shortly to be adopted by the Constituent Assembly of India, shall in so far as it is applicable to the State of Jammu and Kashmir, govern the constitutional relationship between this State and the Union of India and shall be enforced in this State by me, my heirs and successors in accordance with the tenor of its provisions. That the provisions of the said Constitution shall, as from the date of its commencement, supersede and abrogate all other constitutional provisions inconsistent therewith which are at present in force in this State.', The proclamation by the ruler makes it abundantly clear that the State has ratified the Constitution of India as it is applicable to the State of Jammu and Kashmir. Upon its commencement, the Constitution would supersede and abrogate all other constitutional provisions which were inconsistent with the Constitution of India and in force in the State. Thus, the embargo created by Clause 7 of the Instrument of Accession, by which the Instrument of Accession was not deemed to be an acceptance of any future Constitution of India, was lifted by the proclamation., The discussions preceding the development of a unified Constitution and the procedure for ratification indicate that: (a) the Indian States mentioned in Part III of the First Schedule of the Draft Constitution were placed differently compared to the States mentioned in Part I and Part II because constituent assemblies were constituted by the States in Part III to frame internal constitutions; upon steady integration it was realised that there was no place for two constitutions in a people's polity; and the legislative competence of the Union over the States in Part III was limited to defence, external affairs, and communications. Later, all States in Part III, other than Jammu and Kashmir, by expanding the scope of the Instrument of Accession correspondingly conferred Union legislative competence over all entries in List I and List III. In view of the limited competence of the Constituent Assembly of India with respect to Jammu and Kashmir in demarcating legislative competence between the Union and the State, a special provision had to be made for Jammu and Kashmir in the Constitution of India; (b) the procedure for ratification of the Constitution for Jammu and Kashmir was not intended to be different from that for other States in Part III where the Constitution was made applicable by a proclamation of the Rajpramukh. Maharaja Hari Singh, by issuing the proclamation on 25 November 1949, ratified the acceptance of the Constitution of India. The ratification could not be modified or revoked even by the Constituent Assembly of the State. The Constituent Assembly could make recommendations for modification of the provision as it related to Jammu and Kashmir, but the Union was not bound to accept such a recommendation., On 17 October 1949, the Constituent Assembly took up draft Article 306A, which corresponded to Article 370 of the Constitution. Shri N. Gopalaswami Ayyangar introduced the article, stating that the history of the accession of the State of Jammu and Kashmir to the Dominion of India is well known. He noted that since accession, the State has had a chequered history and conditions are not yet normal. Upon accession, the State became a unit of the federal State, namely the Dominion of India, and upon the integration of the Republic on 26 November 1950, Jammu and Kashmir had to become a unit of the new Republic of India. Ayyangar observed that the Instrument of Accession would become a thing of the past in the new Constitution., Maulana Hasrat Mohani, a member of the Constituent Assembly, queried the reason for this discrimination in relation to Jammu and Kashmir. Ayyangar responded that the State was not yet ripe for the manner of integration provided in the Constitution for other states: 'The discrimination is due to the special conditions of Kashmir. That particular State is not yet ripe for this kind of integration. It is the hope of everybody here that in due course even Jammu and Kashmir will become ripe for the same sort of integration as has taken place in the case of other States.', Ayyangar described the conditions in Kashmir as requiring special treatment: a war was ongoing within the limits of the State; a cease‑fire had been agreed at the beginning of the year and was still in force, but conditions remained unusual and abnormal. Part of the State was still in the hands of rebels and enemies. The United Nations was involved, and it was not possible to say when the entanglement would end; only when the Kashmir problem was satisfactorily settled could normalcy return., Ayyangar also referred to the Government of India's commitment to the people of Kashmir to give them an opportunity to decide whether they would remain with the Republic or wish to leave it. The Government was committed to ascertaining the will of the people by means of a plebiscite, provided that peaceful and normal conditions were restored and the impartiality of the plebiscite could be guaranteed. He further stated that the will of the people, through a constituent assembly, would determine the Constitution of the State as well as the sphere of Union jurisdiction over the State., Ayyangar clarified that, unlike other states which had accepted the Constitution framed for states in Part I, where the Centre would have power to make laws on all Union and Concurrent subjects and a uniform relationship had been established, the situation in Jammu and Kashmir was different: the legislature known as the Praja Sabha was defunct, and neither that legislature nor a constituent assembly could be convened until complete peace prevailed. Therefore, only an interim arrangement was possible, not one that could be brought into line with the arrangement existing for the other states., Ayyangar stated: 'Now, if you remember the viewpoints that I have mentioned, it is an inevitable conclusion that, at the present moment, we could establish only an interim system. Article 306A is an attempt to establish such a system.', Ayyangar observed that the second portion of the article relates to the legislative authority of Parliament over the Jammu and Kashmir State, governed primarily by the Instrument of Accession. Broadly, that legislative power is confined to defence, foreign affairs and communications, but these categories include a number of items listed in the Instrument of Accession, numbering about twenty to twenty‑five. These items have been renumbered and rearranged in List I and List III of the new Constitution. Clause (1)(b) of Article 306A provides that the listing of the items as per the new Constitution should be done by the President in consultation with the Government of the State. Clause (b)(ii) refers to possible additions to the List in the Instrument of Accession, which could be made with the concurrence of the Government of the State. The idea is that even before the Constituent Assembly meets, it may be necessary, in the interests of both the Centre and the State, to add certain items not included in the Instrument of Accession; the only authority from whom consent can be obtained is the Government of the State., Ayyangar clarified that Article 1 of the Constitution will automatically apply to the State of Jammu and Kashmir, which is one of the States mentioned in Part III., Ayyangar noted that several clauses provide for the concurrence of the State of Jammu and Kashmir for the application of the provisions of the Constitution. These relate particularly to matters not mentioned in the Instrument of Accession, and the Government of the State has committed that no such additions shall be made except with the consent of the Constituent Assembly that may be called in the State for framing its Constitution. The Government may give interim concurrence, but any such concurrence must be placed before the Constituent Assembly when it meets, and the Assembly may take whatever decisions it likes on those matters., Ayyangar explained that the last clause refers to what may happen later. Article 211A will not apply to the State of Jammu and Kashmir permanently. When the Constituent Assembly of the State has met and decided on the Constitution for the State and the range of federal jurisdiction, the President may, on the recommendation of that Assembly, issue an order that Article 306A shall either cease to be operative or shall operate only subject to exceptions and modifications specified by the Assembly. The recommendation of the Constituent Assembly is a condition precedent., Ayyangar summed up the effect: the State of Jammu and Kashmir, now a part of India, will continue to be a part of the future Federal Republic of India, and the Union Legislature will have jurisdiction to enact laws on matters specified in the Instrument of Accession or added later with the concurrence of the Government of the State. Steps must be taken to convene a Constituent Assembly in due course, which will make recommendations to the President, who may either abrogate Article 306A or direct that it shall apply with modifications and exceptions as recommended., The motion on Article 306A was adopted by the Constituent Assembly. The address by Gopalaswami Ayyangar before the Assembly illuminates several facets: following the execution of the Instrument of Accession, Jammu and Kashmir became a part of India and would continue to be a part of the nation and a unit of the future Federal Republic; integration of other States in the Union was complete, but Jammu and Kashmir was not yet ripe for the kind of integration envisaged for the rest of the States because (a) a war was ongoing within the State and a cease‑fire, though in force, left part of the State in rebel hands; (b) the Dominion was entangled with the United Nations; (c) neither the legislature nor the Constituent Assembly could be established; (d) pending the conclusion of this exercise, draft Article 306A postulated consultation with the State Government on matters falling within the ambit of the Dominion under the Instrument of Accession and concurrence on other matters; and (e) after the Constituent Assembly met and decided on the Constitution for the State and the range of federal jurisdiction, the President may, on the Assembly’s recommendation, issue an order that Article 306A would either cease to operate or operate subject to exceptions and modifications., The Instrument of Accession executed by the Maharaja of Jammu and Kashmir states that (a) he accedes to the Dominion of India; (b) the authorities of the Dominion, including the Governor General of India, the Dominion Legislature, the Supreme Court of India and any other Dominion authority, shall exercise such functions vested in the Government of India Act 1935 in relation to the State; and (c) the legislative competence of the Union Legislature shall be limited to defence, external affairs, communication, and certain ancillary matters. The accession was not subject to any conditions. The limitation on the legislative competence of the Union Legislature in the State does not limit the transfer of power from the monarch to the federal institutions of independent India., Under the Instrument of Accession, the Dominion authorities were to exercise functions as vested in them by the Government of India Act 1935. Upon adoption of the Constitution of India and the proclamation issued by the Maharaja on 25 November 1949 ratifying the Constitution, the functions of the Dominion authorities, including the legislature in Jammu and Kashmir, were limited solely by the provisions of the Constitution of India and not by the Instrument of Accession, the Government of India Act 1935 or the Indian Independence Act 1947. The proclamation ratifies the Constitution as it applies to the State unconditionally. The vestiges of colonial and monarchical governance were severed with the adoption and ratification of the Constitution. No residual sovereignty remained with the State upon acceding to the Dominion of India., In 1955, Justice Vivian Bose, speaking for a Constitution Bench in Virendra Singh v. State of Uttar Pradesh, placed the constitutional position thus: Every vestige of sovereignty was abandoned by the Dominion of India and by the States and surrendered to the peoples of the land who, through their representatives in the Constituent Assembly, hammered out a new Constitution in which all were citizens of a new order having but one tie and owing but one allegiance—to the sovereign democratic Republic that is India. At one stroke all other territorial allegiances were wiped out and the past was obliterated except where expressly preserved; the new order was born with its allegiance grounded on the sovereign will of the peoples of India without class, caste, race, creed, distinction or reservation., Justice Ratnavel Pandian, in Raghunathrao Ganpatrao, observed that the accession of the Indian States to the Dominion of India established a new organic relationship between the States and the Government, forging a constitutional link between them. The accession was the first phase of integrating the States into the constitutional structure of India. The second phase involved two‑fold integration: consolidation of States into sizeable administrative units and their democratisation. Although political isolation had been maintained to prevent the infiltration of freedom and democracy into the Indian States, independence unleashed movements for the transfer of power from the Rulers to the people.
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On account of various factors working against the machinery for self‑sufficient and progressive democratic set‑up in the smaller States and the serious threat to law and order in those States, there was an integration of States though not in a uniform pattern in all cases. Firstly, it followed the merger of States in the provinces geographically contiguous to them. Secondly, there was a conversion of States into centrally administered areas and thirdly the integration of their territories to create new viable units known as Union of States., For instance, all the other states in Part III of the Draft Constitution during the adoption of the Constitution (which were Part B States on the adoption of the Constitution) had given competence to the Dominion Legislature over all entries in List I and List III of the Seventh Schedule except taxation. However, the Constitution as adopted did not make any distinction between Part A and Part B states for the purpose of taxation. Entries relating to taxation are placed in both List II and List III of the Seventh Schedule to the Constitution. The Rulers of the States when they issued a Proclamation ratifying the Constitution removed the limits which were placed on the Union's legislative power by their Instruments of Accession. It is only the Constitution of India and not the Instrument of Accession which limited the power of the Union and the federal units., By the seventh constitutional amendment, the distinction between Part A and Part B States was abolished. All territories were consolidated under the head of States and Union Territories. With this, the distinction between Governor's provinces and Indian States died a natural death. The distinction between Governor's Provinces and Indian States was made in the Constitution because earlier the Rulers of Indian States had given limited legislative competence to the Union through the Instrument of Accession, and because of the special circumstances in the Princely States. When the distinction between Part A and Part B states was abolished and Article 238 was repealed, the argument that within Part B states, the State of Jammu and Kashmir has a special status because the Instrument of Accession executed by the Maharaja was limited cannot be accepted., The Constituent Assembly of India was not obligated to restrict the power of the Union legislature in the State of Jammu and Kashmir to the matters specified in the Instrument of Accession. It could have taken the route that it did with other Part B States where legislative competence of the Union legislature was extended in terms of the Seventh Schedule of the Constitution. The Constituent Assembly of India chose to limit the power of the Union legislature to matters specified in the Instrument of Accession because of the special circumstances in the State, which were identified by Mr Ayyangar in his speech. Jammu and Kashmir had acceded to the Dominion of India. Once that was the position, there was no legal impediment on the Constituent Assembly of India providing for the exercise of powers with respect to the State of Jammu and Kashmir at par with other states. However, it was believed by the members of the Constituent Assembly that it would send a message of goodwill if the consent of the Constituent Assembly of Jammu and Kashmir was obtained before the legislative competence of the Union over the State was drawn., Thus, Article 370 was introduced to serve two purposes. First, an interim arrangement until the Constituent Assembly of the State was formed and could take a decision on the legislative competence of the Union on matters other than the ones stipulated in the Instrument of Accession, and ratify the Constitution (the transitional purpose); and second, an interim arrangement because of the special circumstances in the State because of the war conditions of the State (the temporary purpose)., Article 370 was a part of the Constitution as it was originally adopted on 26 January 1950. The provision was placed in Part XXI which was titled Temporary and Transitional provisions when the Constitution was adopted in 1950. The chapter heading was substituted by its present form Temporary, Transitional and Special provisions by the Constitution (Thirteenth Amendment) Act 1962., Article 369 entrusted Parliament, for a period of five years from the commencement of the Constitution, the authority to make laws with certain specific matters as if they were enumerated in the Concurrent List. These matters were: (a) trade and commerce within a State and the production, supply and distribution of identified commodities including foodstuffs, cattle fodder, coal, iron, steel and mica, raw cotton, cotton seed, paper, and cotton and woollen textiles; and (b) offences dealing with the above matters and the jurisdiction and powers of all courts except the Supreme Court together with the imposition of fees., Article 371 stipulated temporary provisions with respect to Part B States, providing that for a period of ten years from the commencement of the Constitution, the Government of a Part B State would be under the general control of and would have to comply with the directions issued by the President., Article 372 provided for the continuation of all laws in force in the territory of India at the commencement of the Constitution until altered or repealed by a competent legislature. The President was also empowered to make adaptations and modifications to the law, including both repeal and amendment, to bring such laws in conformity with the Constitution. Originally this period for making adaptations and modifications was two years but was substituted by the Constitution (First Amendment) Act 1951 to three years., Article 373 contained transitional provisions pertaining to preventive detention. Clause (7) of Article 22 of the Constitution empowers Parliament to prescribe by law the circumstances under which a person may be detained for a period of more than three months under a law providing for preventive detention and the maximum period for which a person may be detained. Article 373 provided that these provisions would operate until a provision was made by Parliament under clause (7) of Article 22 or for a period of one year from the commencement of the Constitution, whichever was earlier. For that period, references to Parliament in clauses (4) and (7) of Article 22 were to be substituted by a reference to the President, and references to a law enacted by Parliament were to be substituted by a reference to an order made by the President., Article 374 provided that the judges of the Federal Court who held office before the commencement of the Constitution would, unless they elected otherwise, become judges of the Supreme Court on the commencement of the Constitution and cases pending before the Federal Court would be transferred to the jurisdiction of the Supreme Court., Article 375 stipulated that all courts, authorities and officers would continue to function under the Constitution. Article 376 provided for the continuation of judges appointed to the High Courts before the commencement of the Constitution. In a similar manner, Article 377 and Article 378 provided for the continuation of the Auditor General of India and Members of the Public Service Commission for the Dominion of India who held office immediately before the commencement of the Constitution., Article 379 contained provisions for a provisional Parliament until both Houses of Parliament were duly constituted and summoned for meeting for the first session under the provisions of the Constitution. The Constituent Assembly of the Dominion of India immediately before the commencement of the Constitution functioned as the provisional Parliament and was entrusted with all the powers conferred by the Constitution on Parliament., Article 380 provided that until a President was elected in accordance with the provisions of Chapter I of Part V of the Constitution, the person elected as President by the Constituent Assembly of the Dominion of India would function as the President of India., Article 381 empowered the President to appoint Members of the Council of Ministers and, until such appointments were made, all persons who were holding office as Ministers for the Dominion of India before the commencement of the Constitution continued to hold that office., Article 382 contained provisions for provisional legislatures for the States in Part A. The legislatures which were functioning immediately before the Constitution in the provinces were to exercise their powers and functions until the duly constituted legislature was summoned to meet for the first session under the provisions of the Constitution., Article 383 provided that persons who were functioning as Governors at the commencement of the Constitution in a corresponding Part A State would continue in office until a Governor was appointed., Article 384 provided that the Governor of a State could appoint persons as members of the Council of Ministers of the Governor, and, until such appointments were made, all persons holding office as Ministers for the corresponding Province immediately before the commencement of the Constitution continued to hold office as members of the Council of Ministers of the Governor of the State., Article 385 provided for provisional legislatures in States in Part B of the First Schedule. Until the House or Houses of the Legislature of a State specified in Part B of the First Schedule were duly constituted and summoned to meet for the first session under the provisions of the Constitution, the body or authority functioning immediately before the commencement of the Constitution as the Legislature of the corresponding Indian State exercised the powers and performed the duties conferred by the Constitution on the Legislature of that State., Article 386 provided that the Rajpramukh of a State specified in Part B of the First Schedule could appoint persons as members of the Council of Ministers of that Rajpramukh, and, until such appointments were made, all persons holding office as Ministers for the corresponding Indian State immediately before the commencement of the Constitution continued to hold office as members of the Council of Ministers of that Rajpramukh., Article 387 made special provision for the determination of population for the purposes of certain elections. For the purposes of elections held under any provision of the Constitution during a period of three years from the commencement of the Constitution, the population of India or any part thereof could be determined in such manner as the President may by order direct, and different provisions could be made for different States and for different purposes by such order., Article 388 made provisions for the filling up of casual vacancies in the provisional Parliament and provisional legislatures of the States., Article 389 provided that a Bill which was pending in the Legislature of the Dominion of India or in the Legislature of any Province or Indian State immediately before the commencement of the Constitution could, subject to any provision to the contrary made in rules by Parliament or the Legislature of the corresponding State, be continued in Parliament or the Legislature of the corresponding State as if the proceedings had been taken in that body., Article 390 dealt with money received or raised or expenditure incurred between the commencement of the Constitution and 31 March 1950. The provisions relating to the Consolidated Fund of India or the Consolidated Fund of any State and the appropriation of monies out of either fund did not apply to such monies, which were deemed to be duly authorized if the expenditure was specified in a schedule of authorized expenditure authenticated under the Government of India Act 1935., Article 391 empowered the President to amend the First and Fourth Schedules in certain contingencies. If, between the passing of the Constitution and its commencement, any action was taken under the Government of India Act 1935 that, in the opinion of the President, required amendment of the First Schedule or the Fourth Schedule, the President could, by order, make such amendments and include any supplemental, incidental or consequential provisions deemed necessary., Article 392 gave the President the power to remove difficulties, particularly in relation to the transition from the Government of India Act 1935 to the Constitution, by directing that the Constitution shall, for a specified period, have effect subject to adaptations, modifications, additions or omissions as the President deemed necessary or expedient. Every order made under this article was to be laid before Parliament., These temporary and transitional provisions were designed to facilitate a seamless transfer of power from the institutions functioning under the Government of India Act 1935 to the duly constituted institutions under the Constitution. They were gradually phased out after the commencement of the Constitution by repeal. The Constitution (Seventh Amendment) Act 1956, which came into force on 1 November 1956, repealed Article 371 and Articles 379 to 391.
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The expansion of the ambit of Part XXI to cover special provisions took place with the Constitution (Thirteenth Amendment) Act, 1962, with effect from 1 December 1963. Over time, Part XXI was amended to incorporate special provisions with respect to the States and the Union Territories., In 1956, Article 371 was substituted by the Seventh Amendment to facilitate special provisions for the States of Andhra Pradesh and Punjab, concerning the constitution and functions of the Regional Committees of the Legislative Assemblies and the special responsibilities of the Governor. Punjab was omitted from the ambit of Article 371 on 1 November 1966, and clause (1) as originally stood was omitted by the Thirty‑Second Amendment on 1 July 1974. With the reorganisation of the States in 1956, Article 371 was amended by the Seventh Amendment to incorporate special provisions for the States of Maharashtra and Gujarat., Article 371‑A was inserted by the Thirteenth Amendment of the Constitution on 1 December 1963 to incorporate special provisions with respect to the State of Nagaland. Article 371‑B was introduced by the Twenty‑Second Amendment on 25 September 1969 for the State of Assam. Article 371‑C for Manipur, Article 371‑D for Andhra Pradesh and later Telangana (following the Reorganisation Act 2014), Article 371‑F for Sikkim, Article 371‑G for Mizoram, Article 371‑H for Arunachal Pradesh, Article 371‑I for Goa and Article 371‑J for Karnataka were brought in by constitutional amendments progressively:, a. Article 371‑C special provisions for Manipur – Twenty‑seventh Amendment, effective 15 February 1972; b. Article 371‑D special provisions for Andhra Pradesh – Thirty‑second Amendment, effective 1 July 1974; c. Article 371‑D special provisions for the reorganised States of Andhra Pradesh and Telangana – Thirty‑second Amendment, effective 2 June 2014; d. Article 371‑F special provisions for Sikkim – Thirty‑sixth Amendment, effective 26 April 1975; e. Article 371‑G special provisions for Mizoram – Fifty‑third Amendment, effective 20 February 1987; f. Article 371‑H special provisions for Arunachal Pradesh – Fifty‑fifth Amendment, effective 20 February 1987; g. Article 371‑I special provisions for Goa – Fifty‑sixth Amendment, effective 30 May 1987; h. Article 371‑J special provisions for Karnataka – Ninety‑eighth Amendment, effective 1 October 2013., Prior to the Seventh Amendment to the Constitution in 1956, Article 1(1) provided that India, that is Bharat, shall be a Union of States. Article 1(2) stipulated that the States and their territories would be those specified in Parts A, B and C of the First Schedule. Article 1(3) originally provided that the territory of India shall comprise: (a) the territories of the States; (b) the territories specified in Part D of the First Schedule; and (c) such other territories as may be acquired., With the Seventh Amendment in 1956, Article 1(2) was substituted to provide that the States and the territories shall be as specified in the First Schedule. Clause (3) was amended to substitute the Union Territories specified in the First Schedule. With the creation of new States, their special needs were addressed through the insertion of special provisions for those States., The marginal note to Article 370 was titled ‘Temporary provisions with respect to the State of Jammu and Kashmir’. As noted at the adoption of the Constitution, Part XXI, in which Article 370 was situated, dealt with temporary and transitional provisions. Whether a marginal note to a statutory provision can be utilised as an aid to interpretation is analysed in Justice G P Singh’s *Principles of Statutory Interpretation*. According to the treatise, although opinion is not uniform, the weight of authority favours the view that the marginal note appended to a section cannot be used for construing the section. Lord Macnaghten emphatically stated that it is well‑settled that marginal notes to the sections of an Act of Parliament cannot be referred to for the purpose of construing the Act. The contrary opinion originated in a mistake and has been rejected long ago. There seems to be no reason for giving marginal notes in an Indian statute any greater authority than marginal notes in an English Act of Parliament. Patanjali Shastri, J., after referring to the above case with approval, observed: ‘Marginal notes in an Indian statute, as in an Act of Parliament, cannot be referred to for the purpose of construing the statute.’ At any rate, there can be no justification for restricting the section by the marginal note, and the marginal note cannot control the meaning of the body of the section if the language employed therein is clear., Justice G P Singh, however, notes that some Indian cases also show that reference to marginal notes may be permissible in exceptional cases for construing a section in a statute., In *Bengal Immunity Company Limited v. State of Bihar*, Chief Justice S R Das, speaking for a seven‑Judge Bench, dealt with the interpretation of Article 286 of the Constitution, which forms a part of Part XXI dealing with finance, property, contracts and suits. The Supreme Court of India noted that Article 286, together with several other articles, is grouped under the heading ‘Miscellaneous financial provisions’ in Chapter 1 of Part XXI and does not appear in Part XI, Chapter 1, which deals with legislative relations. Referring to the marginal note to Article 286, Chief Justice S R Das observed: ‘The marginal note to Article 286 is restrictions as to imposition of tax on the sale or purchase of goods which, unlike the marginal notes in Acts of the British Parliament, is part of the Constitution as passed by the Constituent Assembly, prima facie furnishes some clue as to the meaning and purpose of the Article.’, The Court, however, clarified that apart from the marginal note, the very language of Article 286 makes it abundantly clear that its purpose was to place restrictions on the legislative powers of the State to impose taxes on the sale or purchase of goods. The observations indicate that the marginal note to a provision of the Constitution, being part of the document adopted by the Constituent Assembly, was held prima facie to furnish some clue on the meaning and purpose of the provision., The judgment also makes clear that a marginal note by itself will not control the plain meaning of the words used in the provision if the language of the provision is clear in itself., The marginal note to Article 368, which dealt with the procedure for amendment of the Constitution, was substituted by the Twenty‑fourth Constitutional Amendment with effect from 5 November 1971 to read ‘power of Parliament to amend the Constitution and procedure therefore’. Justice K S Hegde, speaking for himself, observed: ‘To restate the position, Article 368 deals with the amendment of the Constitution. The Article contains both the power and the procedure for amending the Constitution. No undue importance should be attached to the marginal note which says “Procedure for amendment of the Constitution”. The marginal note plays a very little part in the construction of a statutory provision. It should have much less importance in construing a constitutional provision. The language of Article 368 to our mind is plain and unambiguous. Hence we need not call into aid any of the rules of construction about which there was great debate at the hearing. As the power to amend under the Article as it originally stood was only implied, the marginal note rightly referred to the procedure of amendment. The reference to the procedure in the marginal note does not negate the existence of the power implied in the Article.’, In interpreting the provisions of Article 370 as they stood prior to abrogation, we begin with the following prefatory observations: (a) The heading of Part XXI, in which Article 370 was comprised, dealt with temporary and transitional provisions originally and, after the amendment of the heading by the Thirteenth Amendment with effect from 1 December 1963, it deals with temporary, transitional and special provisions; (b) The marginal note to Article 370 states that the Article deals with temporary provisions with respect to the State of Jammu and Kashmir; (c) The heading of Part XXI of the Constitution (temporary and transitional provisions) and the marginal note were part of the Constitution as originally adopted by the Constituent Assembly; (d) Following well‑settled principles of law, the marginal note may prima facie furnish some guidance on the purpose and intent underlying the adoption of the provision but it cannot control the plain meaning of Article 370, which must be deduced by interpreting all its provisions; and (e) While interpreting Article 370, regard must be had to the entire provision and its parts ought not to be construed in a manner disconnected from the meaning and scheme of the provision in its entirety., Clause (1) of Article 370 begins with a non obstante provision. The intent underlying the adoption of this phrase in clause (1) is that what follows in sub‑clauses (a) to (d) is intended to operate untrammelled by the other provisions of the Constitution., Sub‑clause (a) of clause (1) stipulated that the provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir. Article 238, as originally adopted, was placed in Part VII of the Constitution, which dealt with the States in Part B of the First Schedule. Article 238 provided that Part VI of the Constitution, which dealt with the executive, the State Legislature, the legislative power of the Governor, the High Courts and the Subordinate Courts, would apply to the Part B States subject to modifications and omissions. Once the distinction between Part A and Part B States was effaced by the Seventh Amendment in 1956, Part VII, which comprised Article 238, was repealed, and the title of Part VI was amended to delete the reference to Part A States. Consequently, the effect of clause (1)(a) was that, although Jammu and Kashmir was a Part B State at the adoption of the Constitution, the provisions of Article 238 did not apply to it, and Part VI had no application to the State., Sub‑clause (b) of clause (1) limited the power of Parliament to make laws for the State of Jammu and Kashmir. Sub‑clause (b)(i) provided that the Dominion Legislature may enact laws on those matters in the Union and the Concurrent Lists of the Seventh Schedule which, as declared by the President in consultation with the Government of the State, correspond to matters specified in the Instrument of Accession. Sub‑clause (b)(ii) covered such other matters in the said Lists that the President could, with the concurrence of the Government of the State, specify by order. In other words, sub‑clause (b) dealt with the specification of matters by the President among the subjects comprised in the Union and the Concurrent Lists over which Parliament would have power to make laws with respect to Jammu and Kashmir. Sub‑clause (b)(i) required consultation by the President with the State Government, while sub‑clause (b)(ii) required the concurrence of the State Government., The above sub‑clauses dealt with the scope of the power of Parliament to make laws for Jammu and Kashmir with respect to matters in the Union and the Concurrent Lists. Where the matters were set out in the Instrument of Accession, a consultative process with the State Government was envisaged. However, where the matters to be specified in the Union and the Concurrent Lists were not comprehended in the Instrument of Accession as subjects on which Parliament could legislate, the concurrence of the State Government was required. The Instrument of Accession conferred power on Parliament to enact laws on four subjects: defence, external affairs, communications and ancillary matters. The Explanation below sub‑clause (b)(ii) indicated that, for the purposes of the Article, the Government of the State would mean the person recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers under the Maharaja’s proclamation dated 5 March 1948., Sub‑clause (c) of Article 370(1) provided that Article 1 and Article 370 shall apply in relation to the State. Consequently, Jammu and Kashmir became, on the adoption of the Constitution on 26 January 1950, an integral part of India, which Article 1(1) stipulates shall be a Union of States. The provision made it clear that Jammu and Kashmir was governed by Article 1 and was an integral part of the territory of India., In terms of sub‑clause (d) of clause (1), other provisions of the Constitution would apply to the State of Jammu and Kashmir subject to such exceptions and modifications as the President may by order specify. The first proviso stipulated that a Presidential Order relating to matters specified in the Instrument of Accession shall be issued only after consultation with the Government of the State; the second proviso stipulated that a Presidential Order relating to matters other than those specified in the first proviso shall be issued only with the concurrence of the State Government. Thus, the President could issue an order to make other constitutional provisions applicable to Jammu and Kashmir, but such application would be subject to modifications and exceptions, with consultation required for matters in the Instrument of Accession and concurrence required for other matters., Clause (2) envisaged that where the Government of the State of Jammu and Kashmir had given its concurrence under sub‑clause (b)(ii) of clause (1) or under the second proviso to sub‑clause (d) before the Constituent Assembly of the State was convened, the matter shall be placed before the Constituent Assembly for its decision., Clause (3) empowered the President to declare by public notification that Article 370 shall cease to be operative or shall operate only with such exceptions and modifications as may be specified, with effect from a date to be specified. The proviso to clause (3) required the recommendation of the Constituent Assembly of the State before the President could issue such a notification. Clause (3) contains a non obstante provision which overrides the earlier provisions of clauses (1) and (2)., Several salient features emerge from Article 370 read as a whole. First, Article 370 incorporates two non obstante clauses. The first, in clause (1), operates with respect to the entirety of the Constitution. The second, prefacing clause (3), overrides the earlier provisions of the Article. The effect is that once the President exercises the power under clause (3), the restrictions in clauses (1) and (2) cease to govern the State. Second, clause (1) specifies: (i) a specific provision of the Constitution that shall not apply to the State (Article 238); (ii) two specific provisions that shall apply (Article 1 and Article 370); (iii) limitations on the power of Parliament to enact laws for the State on matters in the Union and Concurrent Lists; (iv) the requirement of consultation for matters relating to the Instrument of Accession and concurrence for other matters; and (v) the Presidential power to apply other constitutional provisions to the State subject to exceptions and modifications., Article 370 also expressly recognises: (i) in clause (b)(i) the Instrument of Accession governing the accession of the State to the Dominion of India; (ii) the future convening of a Constituent Assembly for the purpose of framing the Constitution of the State (clause (2)); (iii) that the recommendation in the proviso to clause (3) must come from that Constituent Assembly; and (iv) that the Government of the State would be the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers under the proclamation dated 5 March 1948., The use of distinct phrases—consultation, concurrence, decision and recommendation—indicates that each was intended to have a distinct connotation. Consultation postulates seeking the view of the State government; concurrence postulates affirmative acceptance; a decision postulates the conclusion reached by the Constituent Assembly on prior concurrence; and recommendation postulates the view of the Constituent Assembly forwarded to the President., Article 370 uses the expression ‘exceptions and modifications’ in two places: sub‑clause (d) of clause (1) and clause (3). In both cases, the power to specify exceptions and modifications is entrusted to the President, subject to the conditions laid down in the respective provisos., There are intrinsic reasons in Article 370 which support the view that the provision was not intended by the framers to be a permanent feature of the Constitution at the date of its adoption. Part XXI, of which Article 370 is a part, specifies temporary and transitional provisions. Certain temporary provisions in Part XXI contained explicit time limits, such as Article 369 (five‑year period for Parliament to enact laws), Article 371 (originally conferring a power on Parliament to make law for a period of ten years or a shorter or longer period for the Part B States), Article 372(3) (presidential period of two years initially, later three years, to make adaptations and modifications), Article 372(a) (presidential power to make adaptations to any law in force before the Seventh Amendment by an order before 1 November 1957), Article 373 (presidential power to make an order in respect of persons under preventive detention until Parliament enacted a law under Article 22(7) or until one year from the commencement of the Constitution), and Article 392 (presidential power to remove difficulties arising from the transition from the Government of India Act 1935 to the Constitution)., Part XXI also contained provisions for the continuation of the Federal Court and its judges, the transfer of proceedings (Article 374), other courts, officers and authorities (Article 375), the continuation of High Courts and their judges (Article 376), the Comptroller and Auditor General of India (Article 377), and Public Service Commissions (Article 378). Articles 379 to 386 provided for a provisional Parliament, the election of the President by the Constituent Assembly, the Council of Ministers of the President, provisional legislatures, Governors and Council of Ministers in the States. All these provisions, whether defined with reference to time or otherwise, were temporary or transitional in nature., Article 370 was couched amidst other temporary and transitional provisions with a marginal note indicating that its provisions were temporary. Article 370 was adopted at a time when the Maharaja of Jammu and Kashmir had acceded to the Dominion of India by executing an Instrument of Accession. Textually, Article 370(1)(c) made it clear that Article 1 applied in its entirety to the State, unlike other provisions of the Constitution, whose application was to be governed by the requirement of consultation or, as the case may be, concurrence., On 26 January 1950, when the Constitution was adopted, the State of Jammu and Kashmir became an integral part of the territory of India. The mandate of Article 1 is that India, that is Bharat, shall be a Union of States. The States and their territories would be those specified in Parts A, B and C of the First Schedule. Jammu and Kashmir was a Part B State on the date of adoption. With the adoption of the Seventh Amendment, which obliterated the distinction between Parts A, B and C States, Jammu and Kashmir became a State in the Union of States.
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In other words, Article 370 of the Constitution read together with Article 1 leaves no manner of doubt that the integration of Jammu and Kashmir as a part of the nation, which in itself was a Union of States, was complete. Any interpretation of Article 370 cannot postulate that the integration of Jammu and Kashmir with India was temporary., The effect of dissolution of the Constituent Assembly of Jammu and Kashmir on the scope of powers under Article 370(3). The principal argument urged by Mister Kapil Sibal, learned Senior Counsel appearing on behalf of the petitioners in Writ Petition (Civil) No. 1037 of 2019: Mohd Akbar Lone and Another v. Union of India and Others, is that Article 370 was only temporary when the Constituent Assembly of the State was in existence, that is, between 1951 and 1957. The power under Article 370(3) ceased to exist after the dissolution of the Constituent Assembly. However, the respondents argue that the power under Article 370(3) to declare that the provision ceases to exist or shall exist with such modification subsisted even after the Constituent Assembly ceased to exist. The respondents argue that it is because the Constituent Assembly under the proviso to Article 370(3) only had the power to make recommendations which were not binding on the President and that the President could always unilaterally exercise the power under Article 324. Thus, the question which needs to be addressed is whether Article 370 assumed permanency after the dissolution of the Constituent Assembly of Jammu and Kashmir or whether it was by its very nature, object and purpose temporary. The Supreme Court of India must take into account the inference drawn on an analysis of the historical context of including Article 370 and the text, placement and marginal note of the provision while deciding this issue. We have concluded above that: (a) Article 370 by its text, placement and marginal note is a temporary provision; and (b) a special provision in the form of Article 370 was included for the State of Jammu and Kashmir because of three special circumstances, which were that (i) the Maharaja of Jammu and Kashmir had accepted the legislative competence of the Union on three limited subjects along with certain ancillary powers; (ii) the Constituent Assembly of the State had not been convened before the Constitution of India was adopted to expand the scope of legislative competence and ratify the Constitution; and (iii) the impending war in Jammu and Kashmir at the time of framing the Constitution of India., The judgment in Sampath Prakash. In Sampath Prakash v. State of Jammu and Kashmir, proceedings under Article 32 of the Constitution were initiated challenging the validity of an order of detention under the Jammu and Kashmir Preventive Detention Act, 1964. The detention had been continued without making a reference to the Advisory Board, the State having purported to act under Section 13A. The provisions of Article 13A were challenged on the ground that they were ultra vires Article 22 of the Constitution. However, Article 35-C, which was introduced by Constitutional Order 48 of 1954 in exercise of power under Article 370(1)(d), had granted immunity to a law relating to preventive detention in Jammu and Kashmir against invalidity on the ground that it violated any right under Part III of the Constitution for a period of five years. The period of five years was extended subsequently to ten and fifteen years by Constitutional Order 59 of 1959 and Constitutional Order 69 of 1964 respectively. The two modifications made in 1959 and 1964 were challenged on the ground that they were ultra vires the power of the President under Article 370(1). The petitioner in that case argued that Article 370 contained temporary provisions which would cease to be effective after the Constituent Assembly of the State had ceased to exist. Reliance was placed on the speech of Shri N. Gopalaswami Ayyangar when he moved Draft Article 306A in the Constituent Assembly which corresponded to Article 370. Since the Constitution of the State came into force on 26 January 1956, the two Constitutional Orders of 1959 and 1964 were challenged on the ground that they were void., The historical background of Article 370, which was discernible from the speech of Gopalaswami Ayyangar in the Constituent Assembly, was summarized in the judgment of the Constitution Bench as follows: (1) there had been a war going on within the limits of Jammu and Kashmir State; (2) there was a cease‑fire agreed to at the beginning of the year and that cease‑fire was still on; (3) the conditions in the State were still unusual and abnormal and had not settled down; (4) part of the State was still in the hands of rebels and enemies; (5) the country was entangled with the United Nations in regard to Jammu and Kashmir and it was not possible to say when we would be free from this entanglement; (6) the Government of India had committed itself to the people of Kashmir in certain respects which commitments included an undertaking that an opportunity be given to the people of the State to decide for themselves whether they would remain with the Republic or wish to go out of it; and (7) the will of the people expressed through the Instrument of a Constituent Assembly would determine the Constitution of the State as well as the sphere of Union jurisdiction over the State., The Supreme Court of India rejected the challenge, holding: We are not impressed by either of these two arguments advanced by Mister Ramamurthy. So far as the historical background is concerned, the Attorney General appearing on behalf of the Government also relied on it to urge that the provisions of Article 370 should be held to be continuing in force, because the situation that existed when this article was incorporated in the Constitution had not materially altered, and the purpose of introducing this article was to empower the President to exercise his discretion in applying the Indian Constitution while that situation remained unchanged. There is considerable force in this submission. The legislative history of this article cannot, in these circumstances, be of any assistance for holding that this article became ineffective after the Constituent Assembly of the State had framed the Constitution for the State. The Constitution Bench then held that there were much stronger reasons for holding that the provisions of Article 370 continued in force and remained effective even after the Constituent Assembly of the State had adopted the Constitution for the State because the Constituent Assembly did not, in exercise of the power under the proviso to Article 370, recommend that the provision shall cease to exist. Rather the Constituent Assembly recommended that Article 370 must operate with a modification of the Explanation to the provision., There are, however, much stronger reasons for holding that the provisions of this article continued in force and remained effective even after the Constituent Assembly of the State had passed the Constitution of the State. The most important provision in this connection is that contained in clause (3) of the article which lays down that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as the President may specify by public notification, provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification. This clause clearly envisages that the article will continue to be operative and can cease to be operative only if, on the recommendation of the Constituent Assembly of the State, the President makes a direction to that effect. In fact, no such recommendation was made by the Constituent Assembly of the State, nor was any order made by the President declaring that the article shall cease to be operative. On the contrary, it appears that the Constituent Assembly of the State made a recommendation that the article should be operative with one modification to be incorporated in the Explanation to clause (1) of the article. This modification in the article was notified by the President by Ministry of Law Order Constitutional Order 44 dated 15 November 1952, and laid down that, from 17 November 1952, the article was to be operative with substitution of the new Explanation for the old Explanation as it existed at that time. This makes it very clear that the Constituent Assembly of the State did not desire that this article should cease to be operative and, in fact, expressed its agreement to the continued operation of this article by making a recommendation that it should be operative with this modification only., The Constitution Bench also adverted to the proviso to Article 368 added by a Constitutional Order in relation to the State of Jammu and Kashmir under which an amendment to the Constitution made in accordance with Article 368 would not have any effect in relation to that State unless applied by the Order of the President under Article 370(1). In view of these provisions, the Supreme Court of India held that Article 370 of the Constitution has never ceased to be operative and there can be no challenge on this ground to the validity of the orders passed by the President in exercise of the powers conferred by this Article., The petitioners also contended that once any provision of the Constitution was applied to the State of Jammu and Kashmir with modifications and exceptions under Article 370(1)(d), the power under Article 370 would not cover any modification in the Constitution as applied. That is, further modifications to the provisions as applied to the State cannot be made. Rejecting the submission, the Supreme Court of India held that the power under Article 370(1)(d) to issue an order applying provisions of the Constitution of India to Jammu and Kashmir included the power to make modifications. Reference was made to Section 21 of the General Clauses Act for this purpose which states that the power to issue a notification includes the power to amend the notification. The legislative history of this article will also fully support this view. It was because of the special situation existing in Jammu and Kashmir that the Constituent Assembly framing the Constitution decided that the Constitution should not become applicable to Jammu and Kashmir under Article 394, under which it came into effect in the rest of India, and preferred to confer on the President the power to apply the various provisions of the Constitution with exceptions and modifications. It was envisaged that the President would have to take into account the situation existing in the State when applying a provision of the Constitution and such situations could arise from time to time. There was clearly the possibility that, when applying a particular provision, the situation might demand an exception or modification of the provision applied; but subsequent changes in the situation might justify the rescinding of those modifications or exceptions. This could only be brought about by conferring on the President the power of making orders from time to time under Article 370 and this power must, therefore, be held to have been conferred on him by applying the provisions of Section 21 of the General Clauses Act for the interpretation of the Constitution. The Constitution Bench held that the extension of the period of five years under Article 35-C to ten years and fifteen years respectively by the Constitutional Orders of 1959 and 1964 is justified prima facie by the exceptional state of affairs which continue to exist as before. Consequently, it was held that in view of the validity of the Constitutional Orders of 1959 and 1964, the validity of the Act could not be challenged on the ground that any of its provisions were inconsistent with Article 22 of the Constitution., The issue before the Constitution Bench of the Supreme Court of India in Sampath Prakash was whether Article 370 automatically ceased to exist when the Constituent Assembly of the State was dissolved after it framed the Constitution of Jammu and Kashmir. The Supreme Court of India held in the negative because the special conditions which warranted the introduction of Article 370 continued to exist and the Constituent Assembly of the State had not recommended that the provision must cease to exist in exercise of the power under the proviso to Article 370(3). In that case, the issue was whether the power under Article 370(1)(d) ceased to exist upon the Constituent Assembly ceasing to exist. The issue was answered with reference to Article 370(3), that the power under Article 370(1) continues to exist because the Constituent Assembly of the State did not, in exercise of power under 370(3), recommend that Article 370 must cease to exist. However, the issue of whether the power under Article 370(3) could be exercised after the Constituent Assembly of the State ceased to exist did not arise for the Supreme Court of India’s consideration in that case. This issue must be decided by this Bench., The limited power of the Constituent Assembly. The argument of the petitioners that Article 370 has attained permanence after the Constituent Assembly of Jammu and Kashmir ceased to exist is premised on the understanding that the constitutional body had unbridled power to alter the constitutional integration of the State with the Union. In the sections below, we will be analysing if the Constituent Assembly of Jammu and Kashmir had such unrestrained power by referring to the constitutional history and structure of the provision., The structure of Article 370(1) and 370(2). Article 370(1) required the concurrence of the Government of the State for both applying the provisions of the Constitution and expanding the ambit of the legislative competence of the Union over the State. The power under Article 370(1)(d) had three components. Firstly, the President was empowered to notify which of the provisions other than Articles 1, 238 and 370 shall apply to the State of Jammu and Kashmir. Secondly, the provisions of the Constitution need not be applied to the State of Jammu and Kashmir in the same manner as they applied to the rest of the States since the President was conferred with the power to prescribe modifications and exceptions to the provision. Thirdly, such an order could be issued by the President only with either the concurrence or the consultation of the Government of the State depending on whether the provision related to the matters in the Union List or otherwise. This provision indicates that upon the adoption of the Constitution, all provisions of the Constitution did not automatically apply to the State of Jammu and Kashmir. The Government of the State had the power to grant its concurrence or otherwise on which of the other provisions would apply to the State of Jammu and Kashmir. Those other provisions could also be made applicable with such exceptions and modifications., To understand the scope of power under Article 370(1)(d), it is necessary to identify the breadth of the provision. Would it be open to the Government of the State to not give its concurrence for the application of any other provision other than Article 1 and 370? That is, omit all other provisions of the Constitution in its application to Jammu and Kashmir? Could the Government of the State have chosen to omit the application of Part III in the State of Jammu and Kashmir or modify the provisions to the extent that the core of the provision is lost? Could a Constitutional Order have been issued under Article 370(1)(d) omitting the application of Article 32 to Jammu and Kashmir or omitting the jurisdiction of the Supreme Court over the State of Jammu and Kashmir?, In Puranlal Lakhanpal I v. President of India, the State of Jammu and Kashmir detained the petitioner under Section 3 of the Jammu and Kashmir Preventive Detention Act on 4 October 1955. This gave rise to a petition seeking a writ of habeas corpus. The order of detention was issued with a view to prevent him from acting in any manner prejudicial to the security of the State. The order of detention denied the petitioner the grounds of detention in terms of the proviso to Section 8(1). The challenge was that the terms of the Section were inconsistent with Articles 21 and 22 of the Constitution and therefore void., On 14 May 1954, the President, acting under Article 370(1) with the concurrence of the State government, issued the Constitution (Application to Jammu and Kashmir) Order 1954 applying certain specific provisions of the Constitution to the State of Jammu and Kashmir subject to modifications. In clauses (4) and (7) of Article 22, the legislature of the State of Jammu and Kashmir was substituted for Parliament so that the former was competent to legislate for preventive detention. Moreover, Article 35(C) was added, the effect of which was that the provisions of the Jammu and Kashmir Preventive Detention Act, insofar as they were consistent with Part III of the Constitution, would be valid for a period of five years from the commencement of the Order. The exception which was made by Article 35(C) was coextensive with the life of the State legislation which had a limited life of five years. In this backdrop, Justice B. P. Sinha, speaking for the Constitution Bench, held that so long as the State legislation continued in force, the provisions of Articles 21 and 22 of the Constitution, insofar as they were inconsistent with the Act, are out of the way. Therefore, the Court held that the provisions of Section 8 could not be held to be unconstitutional as being inconsistent with Part III. However, it was urged on behalf of the petitioner that Article 35(C) which was inserted by the Constitutional Order of 1954 was in excess of the powers conferred on the President by Article 370. Rejecting the argument, the Constitution Bench held: It is manifest that Article 370(1)(c) and (d) authorizes the President by Order to specify the exceptions and modifications to the provisions of the Constitution (other than Articles 1 and 370) subject to which the Constitution shall apply to the State of Jammu and Kashmir. Clause (c) as indicated above has been added to Article 35 of the Constitution only so far as the State of Jammu and Kashmir is concerned. Section 8 of the Act is not in excess of or inconsistent with the provisions of clause (c) so added to Article 35 of the Constitution. That being so the orders as served upon the petitioner are not inconsistent with or in excess of such provisions of Part III of the Constitution as apply to the State of Jammu and Kashmir. It must therefore be held that the petitioner was not entitled to know the grounds upon which he had been detained beyond what is disclosed in the order itself., The Constitution Bench, therefore, held that (a) Article 370(1) empowered the President to apply the provisions of the Constitution to the State of Jammu and Kashmir with modifications and exceptions with the concurrence of the State government; (b) the Constitutional Order of 1954 was issued in exercise of the power conferred by Article 370(1); (c) Article 35(C) was inserted by the Constitutional Order of 1954 pursuant to the exercise of that power; (d) the denial of the grounds for detention in terms of the proviso to Section 8 was valid; and (e) in view of the provisions of Article 35(C) as inserted by the Constitutional Order of 1954, the challenge to Section 8 of the State legislation on the ground that it was inconsistent with Articles 21 and 22 of the Constitution could not be sustained., In Puranlal Lakhanpal II v. President of India, the petitioner challenged the constitutional validity of the Constitution (Application to Jammu and Kashmir) Order 1954 made by the President under Article 370(1). The petitioner was registered as an elector in the Parliamentary Constituency of Delhi and claimed a right to stand for election from any Parliamentary Constituency in the country. The State of Jammu and Kashmir had six seats in the Lok Sabha. Ordinarily, under Article 81(1), election to these seats would have taken place by a direct election from the territorial constituencies in the State. However, in relation to the State of Jammu and Kashmir, Article 81(1) was modified by Paragraph 5(c) of the Constitutional Order of 1954 to indicate that the representatives of the State in the Lok Sabha would be appointed by the President on the recommendation of the Legislature of the State. The challenge was to the substitution of a direct election to the Lok Sabha by nomination made by the State Legislature., K. N. Wanchoo, Justice, speaking for the Constitution Bench, held that Article 370 recognizes the special position of the State of Jammu and Kashmir and that is why the President is given the power to apply the provisions of the Constitution to that State subject to such exceptions and modifications as the President may by order specify. The submission was that in exercise of the power under Article 370(1), the President could not amend the Constitution so as to make a radical alteration in its provisions. In this context, reliance was placed on the judgment in In re Delhi Laws Act to urge that the modification could not encompass a radical transformation. The Constitution Bench ruled that there was no radical alteration of Article 81; while direct election had been substituted by an indirect election by the State Legislature, the element of election still remained. But assuming that the alteration made by the Constitutional Order was radical in nature, the Constitution Bench distinguished the position in In re Delhi Laws Act which dealt with the power of delegation to a subordinate authority which made subordinate legislation. Distinguishing the power of modification conferred on the President under Article 370(1), the Court held: In the present case we have to find out the meaning of the word modification used in Article 370(1) in the context of the Constitution. As we have said already the object behind enacting Article 370(1) was to recognise the special position of the State of Jammu and Kashmir and to provide for that special position by giving power to the President to apply the provisions of the Constitution to that State with such exceptions and modifications as the President might by order specify. We have already pointed out that the power to make exceptions implies that the President can provide that a particular provision of the Constitution would not apply to that State. If therefore the power is given to the President to efface in effect any provision of the Constitution altogether in its application to the State of Jammu and Kashmir, it seems that when he is also given the power to make modifications that power should be considered in its widest possible amplitude. If he could efface a particular provision of the Constitution altogether in its application to the State of Jammu and Kashmir, we see no reason to think that the Constitution did not intend that he should have the power to amend a particular provision in its application to the State of Jammu and Kashmir., The Court held that in the context of the Constitution it must give the widest effect to the meaning of the word modification used in Article 370(1) and in that context, it includes an amendment and that there was no reason to limit the expression modifications only to those which did not make a radical transformation., In Puranlal Lakhanpal II, this Court held that the power to make a modification in Article 370(1) was not limited. It would include amendments to provisions in their application to the State of Jammu and Kashmir including the power to make radical transformation. Though modification includes the power to amend or radically transform the provision, there are certain implied limits to the power. When the State of Jammu and Kashmir acceded to the Dominion of India and the Maharaja issued a Proclamation ratifying and adopting the Indian Constitution, there was a rupture of monarchic governance and the simultaneous creation of a system of constitutional governance. The State of Jammu and Kashmir by ratifying the Constitution accepted the model of constitutional governance envisaged by the Indian Constitution. Accession to India could not be merely a matter of territorial integration to India without constitutional integration. Thus, there were certain fundamental precepts or features of the Indian Constitution which could not be abrogated by the exercise of the power of modification under Article 370(1)(d). For instance, there can be no deviation from a democratic form of governance chosen for India. Similarly, it was not open to the State Constituent Assembly to declare that the State of Jammu and Kashmir was an independent sovereign country. The Constituent Assembly of Jammu and Kashmir could fill in the details and provide a pattern of governance in the state, consistent with the basic precepts of governance under the Constitution of India. Indeed, the pattern of governance in Jammu and Kashmir mirrored the governance under the articles of the Constitution of India. Though Part VI of the Constitution was inapplicable to Jammu and Kashmir, the pattern of constitutional governance under the State Constitution drew upon basic precepts of parliamentary democracy under the Constitution of India., Article 370(1) required the concurrence of the Government of the State and not the concurrence of the Constituent Assembly of the State. Article 370(2) stipulates that if the concurrence of the Government of the State is given before the Constituent Assembly of Jammu and Kashmir is convened, the concurrence shall be placed before the Assembly for its decision. The inclusion of Article 370(2) must be read with reference to the Explanation to Article 370. The Explanation states that the Government of the State means the person recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja’s Proclamation dated fifth day of March 1948. The Maharaja of Jammu and Kashmir by a Proclamation issued on 5 March 1948 appointed Sheikh Abdullah as the Head of Emergency Administration. The Council of Ministers of the Emergency Administration was tasked to convene the National Assembly based on adult suffrage. The Proclamation also notes that the National Assembly would be tasked with framing the Constitution of the State. Article 370(2) effectively meant that the decision which would be taken by the Government of the State before the Constituent Assembly is convened would be the decision of the emergency administration. The purpose of Clause (2) was to subject the exercise of power by the emergency administration to the democratic will of the people exercised through the members of the Constituent Assembly. The Constitution Bench of the Supreme Court of India in Sampath Prakash has recognised that the power under Article 370 extends even after the Constituent Assembly ceased to exist., The structure of Article 370(3). Article 370(3) vested the President with two powers: first, the power to declare that Article 370 ceases to exist; and second, the power to declare that Article 370 shall be operative with exceptions and modifications. The effect of the President declaring under Clause (3) that Article 370 ceases to exist is that provisions of the Constitution which apply to every other State in the First Schedule would equally apply to the State of Jammu and Kashmir. Article 370(3) was introduced with the purpose of enhancing constitutional integration and not disintegration. The necessary consequence of the exercise of this power is that the Constitution of Jammu and Kashmir would cease to exist. Under Clause (3), the President also has the power to modify Article 370. This includes the power of the President to remove the distinction between matters in the Union List and otherwise or the power to apply all provisions of the Constitution to the State of Jammu and Kashmir., The inference. The proviso to Article 370(3) states that the recommendation of the Constituent Assembly referred to in Clause (2) shall be necessary before the President issues such a notification. The petitioners argue that the President cannot exercise the power under Article 370(3) after the Constituent Assembly of the State has ceased to exist because: (a) the recommendation is necessary before the President exercises power under Article 370(3); (b) the recommendation of the Constituent Assembly is binding on the President; and (c) the recommendation must be of the Constituent Assembly referred to in Clause (2) of Article 370 which refers to the Constituent Assembly convened for the purpose of framing the Constitution of the State. Thus, the recommendation of that Constituent Assembly cannot be substituted with the recommendation of any other body., The Constituent Assembly in exercise of the power under the proviso to Article 370(3) did not recommend that Article 370 should cease to exist. The Constituent Assembly recommended one modification of the Explanation to Article 370 before it ceased to exist. The Government of the State was defined as the person recognised by the President as the Maharaja of Jammu and Kashmir acting on the aid and advice of the Council of Ministers. This explanation was substituted to read that the Government of the State would mean that person recognised as the Sadar-i-Riyasat by the President on the recommendation of the Legislative Assembly of the State.
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The petitioners argue that since the Constituent Assembly did not recommend that Article 370 must cease to exist, the provision has attained permanence. It was argued that the procedure to repeal the provision cannot be traced to Article 370 after the Constituent Assembly ceased to exist but can only be traced to Article 368 of the Constitution. We do not agree with the submission for the following reasons:, The historical context in which Article 370 was included must be recalled. The Constitution of India did not provide for the ratification of the Constitution by the Indian States. It was decided by the Ministry of States that the ruler of each Indian State must issue a proclamation ratifying the Constitution on the recommendation of the Constituent Assembly, where such body existed. In states where the Constituent Assembly was not convened, the ruler of the State was to issue a proclamation accepting the Constitution. However, when a Constituent Assembly was convened in those states, the Constituent Assembly could make a recommendation for the modification of the Constitution as it applied to the State and such a recommendation would be earnestly considered by the Union. Since the Constituent Assembly of Jammu and Kashmir had not yet been constituted when the Constitution of India was adopted, the proviso to Article 370(3) merely encapsulated the ratification process as decided by the Ministry of States. The words “recommendation of the Constituent Assembly” referred to in clause (2) shall be necessary before the President issues such a notification as it appears in the proviso to Article 370(3) must be read in this context. Thus, the recommendation of the Constituent Assembly was not binding on the President to begin with., Article 370 was introduced to serve two purposes: the special circumstances in the State in view of the impending war and the absence of a Constituent Assembly in the State when the Constitution of India was adopted. This purpose is discernible not just from the historical context but also from the provisions of Article 370. If Article 370 was introduced only for the purpose of ratification of the Constitution of India and expanding the scope of legislative competence, the provision would have clearly and unequivocally granted such a power to the Constituent Assembly alone. Rather, the provision grants the power to the Government of the State in terms of Article 370(1). Similarly, Article 370 also restricts the application of the Constitution to the State of Jammu and Kashmir. This was evidently included to deal with the special circumstances in the State., The Constituent Assembly, upon being convened, exercised power under Article 370. Though the body ceased to exist, only one of the special circumstances for which the provision was introduced ceased. However, the other circumstance—that special circumstances because of the climate in the State—remained even after the Constituent Assembly ceased to exist. This is recognised by the judgment of the Constitution Bench in Sampath Prakash (supra)., The dissolution of the Constituent Assembly of the State would not impact the substantive power vesting in the President under clause 3. At the time of framing of the Constitution of India, it was obviously within contemplation that the Constituent Assembly of Jammu and Kashmir was formed for framing the Constitution for the State. It was not intended to be a permanent body but a body with a specific remit and purpose. The power conferred by the proviso to Article 370(3) was hence something which would operate in a period of transition when the Constituent Assembly of Jammu and Kashmir was formed and was in existence, pending the drafting of the State Constitution., The President, in exercise of the power under Article 370(1)(d), could not make radical changes to the provisions of the Constitution of India as they apply to Jammu and Kashmir. If the President exercises the power under Article 370(3) issuing a notification that Article 370 ceases to exist, the State of Jammu and Kashmir would be fully constitutionally integrated with India similar to the other States. So, the power under Article 370(1) and Article 370(3) even when exercised to its fullest extent does not freeze the system of integration contemplated by Article 370. It was intended to enhance constitutional integration between the Union and the State of Jammu and Kashmir. Holding that the power under Article 370(3) cannot be exercised after the dissolution of the Constituent Assembly would lead to freezing of the integration contrary to the purpose of introducing the provision., If the contention of the petitioners on the interpretation of Article 370 vis‑vis the dissolution of the Constituent Assembly is accepted then Article 370(3) would become redundant and the provision would lose its temporary character. This would be contrary to holding that Article 370 is a temporary provision., It could be argued that an interpretation which renders Article 370(3) redundant does not make the provision permanent because Parliament, in exercise of its constituent power under Article 368, could repeal the provision. This argument misses the scope of temporary and transitional provisions. Article 368 states that Parliament, in exercise of its constituent power, may amend by way of addition, variation or repeal any provision of the Constitution. Thus, all provisions of the Constitution are amenable to change. This power is only subject to the basic structure challenge. However, a provision does not attain a temporary character merely because it can be amended. A provision is temporary when the provision ceases to exist even without the exercise of the amending power either through the lapse of time or the absence of certain conditions. The provision could be temporary because of the time frame, that is, the provision states it would cease to have effect after the lapse of a particular time period or it could be temporary in view of the existence of specific circumstances. If Article 370 can only be repealed in the same manner as other provisions which are not placed within Part XXI, the distinction between temporary and other provisions is lost., The petitioners also contended that reading the power under Article 370(3) independent of the proviso would lead to an internal interpretative inconsistency. It was argued that the President could not unilaterally exercise power under Article 370(1) by which the provisions of the Constitution are applied to the State of Jammu and Kashmir but the President could unilaterally extinguish the special status of the State of Jammu and Kashmir. This argument misses the crux of the power conferred by Article 370(1). By virtue of the power under Article 370(1), the Union and the State decide on the scope of the legislative powers of the Union in the State and the provisions of the Constitution (with such modifications) which will apply to the State of Jammu and Kashmir. Thus, the power under Article 370(1) is exercised to establish a system of governance in the State., The provisions of the Constitution of Jammu and Kashmir must be referred to, to elucidate this point. The legislative and executive power of the State depends on the scope of the legislative and executive power of the Union in the State of Jammu and Kashmir. Under Section 5 of the Constitution of Jammu and Kashmir, the extent of the legislative and executive power of the State extends to those matters over which Parliament does not have legislative competence under the provisions of the Constitution of India. In other words, the residual power after excluding matters with respect to which Parliament can enact laws in relation to the State falls within the ambit of the legislative power of the State of Jammu and Kashmir., Part IV of the Jammu and Kashmir Constitution contained provisions for the Directive Principles of State Policy. Part V contained provisions for the executive including the Governor and the Council of Ministers to aid and advise the Governor. Part VI contained provisions for the State legislature including the Legislative Assembly and the Legislative Council. Parts IV, V, and VI of the Constitution of India were not made applicable to the State of Jammu and Kashmir through the Constitution Orders. The Constitution of Jammu and Kashmir deals with subjects which have been omitted from the Constitution of India as it is applicable to the State. In doing so, the Constitution of Jammu and Kashmir does not prescribe principles and a system of governance which are radically different from that which is prescribed by the Indian Constitution. In fact, there is more than one similarity., Part IV deals with the Directive Principles of State Policy. Section 12, similar to Article 37 of the Constitution of India, states that the Directive Principles are unenforceable in courts and that they are guiding principles. Most of the Directive Principles in the Constitution of India find place in the Constitution of Jammu and Kashmir., The provisions on the scope of powers of the executive and the legislature were also similar to the provisions in the Constitution of India. Section 35 provided for a Council of Ministers with a Chief Minister at the head to aid and advise the Governor in the exercise of his functions. Sub‑section (2) of Section 35 provided that all functions of the Governor except those under Sections 36, 38 and 92 shall be exercised by him only on the advice of the Council of Ministers. Under Section 36(1), the Chief Minister would be appointed by the Governor and all other Ministers would be appointed by the Governor on the advice of the Chief Minister. Section 53(2) entrusts the power to the Governor to prorogue the legislature and dissolve the Legislative Assembly. The Legislature of the State shall consist of both the Legislative Assembly and the Legislative Council and the Legislative Assembly of the State shall consist of members chosen by direct election., The Constitution of Jammu and Kashmir dealt with the residuary space which was available after the application of the Constitution of India. This is not only true for the legislative and executive competence of the State but also for the provisions which are necessary for the establishment of a system of governance. Thus, when an order is issued under Article 370(1)(d) applying a provision of the Constitution to the State of Jammu and Kashmir, corresponding amendments may have to be made to the Constitution of the State to either enlarge or limit the executive and legislative power. Collaboration between the Union and State units is necessary to ensure that the provisions of the Constitution of Jammu and Kashmir are not inconsistent with the provisions of the Constitution of India as applicable to the State., A collaborative exercise between the Union and the State was imperative for the smooth functioning of governance in the State. The power under Article 370(3) by which the President decides if special circumstances still exist in the State is an independent inquiry unrelated to the power under Article 370(1). When the nature of power and the repercussions of the exercise of such power vary under both the provisions, the argument that the interpretation of one provision contradicts the principle in another loses force., Constitutional Order 272 was issued under Article 370(1)(d) and sought to amend clause (3) of Article 370. The petitioners challenge Constitutional Order 272 as being ultra vires Article 370(1)(d) on the grounds that it modifies Article 370, which can only be done on exercise of power under Article 370(3); and that only the State Government may accord concurrence to the President under the second proviso to Article 370(1)(d)., Amendment of Article 370 through Article 370(1)(d). Before adverting to the issue at hand, it is necessary to understand the structure of Article 370 and the mechanism by which different provisions of the Constitution were made applicable to the State of Jammu and Kashmir., Article 370(1)(a) stipulates that the provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir. Article 238 concerned the application of the provisions of Part VI of the Constitution to States in Part B of the First Schedule. Article 238 was repealed by the Constitution (Seventh Amendment) Act 1956, which modified the categorisation of the constituent units in the country and did away with the distinction between Part A States and Part B States. Article 370(1)(b) limits the powers of Parliament to make laws for the State of Jammu and Kashmir, as specified in sub‑clauses (i) and (ii) of the provision., Article 370(1)(c) stipulates that the provisions of Article 1 and of this article shall apply in relation to the State of Jammu and Kashmir. The import of Article 370(1)(c) is that Article 1 as well as Article 370 applies to the State of Jammu and Kashmir. Neither Article 370 nor any other provision of the Constitution contemplates a modification or amendment of the application of Article 1 to the State of Jammu and Kashmir. Article 1 is therefore applicable to the State without any exceptions, modifications, or amendments and without the possibility of any exceptions, modifications, or amendments. This is in accordance with the principle that Article 1 is founded on the territorial integrity and unity of India. As a Supreme Court of India bench observed in Raja Ram Pal v. Hon’ble Speaker, Lok Sabha, India is an indestructible Union of destructible units. The indestructible nature of the Union of India is underscored by its application to the State of Jammu and Kashmir, which was otherwise subject to a special federal arrangement by virtue of Article 370. The State of Jammu and Kashmir is an integral part of the Union of India., Article 370, on the other hand, could be amended or modified in its application to the State. Clause (3) of Article 370 stipulates that the President may declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications as he may specify: “Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.”, The President was empowered to exercise this power by issuing a public notification. The proviso to this provision provides that the recommendation of the Constituent Assembly of the State shall be necessary before the President issues such a notification. The term “this article” in clause (3) refers to Article 370. Clause (3), therefore, provides for the manner in which the application of Article 370 to the State of Jammu and Kashmir can be amended or abrogated., Article 370(1)(d) provides that such of the other provisions of the Constitution shall apply to the State of Jammu and Kashmir as the President may by order specify. The first proviso requires the President to issue an order which relates to the matters specified in the instrument of accession referred to in Article 370(1)(b)(i) in consultation with the State Government. The second proviso requires the President to issue orders which relate to matters other than those specified in the instrument of accession with the concurrence of the State Government. The term “other provisions” indicates that the procedure laid down by Article 370(1)(d) applies to provisions other than the ones indicated in sub‑clauses (a) to (c) of clause (1) of Article 370., From this standpoint of Article 370, the following position on the application of the Constitution to the State of Jammu and Kashmir emerges: (a) Article 238 (before it was repealed) did not apply to the State; (b) Article 1 applies to the State. Its application can neither be modified nor amended nor can it cease to operate; (c) Article 370 applied to the State. Its application could be modified or amended or it could cease to be operative by the issuance of a public notification in accordance with the procedure prescribed by clause (3) of Article 370; and (d) The provisions of the Constitution, other than Articles 1, 238 (before it was repealed), and 370 shall apply to the State as specified by the President by way of orders, with any exceptions and modifications. The procedure contemplated by Article 370(1)(d) must be followed in this case., It is trite law that a power under a statute must be exercised in accordance with the provisions of that statute and in no other manner. In J.N. Ganatra v. Morvi Municipality, the Supreme Court of India set aside the dismissal of an employee by the respondent municipality on the ground that it had failed to comply with the procedure for dismissal set out in the relevant rule: “It is no doubt correct that the General Board of the Municipality had the power under the Act to dismiss the appellant but the said power could only be exercised in the manner indicated by Rule 35 of the Rules. … It is a settled proposition of law that a power under a statute has to be exercised in accordance with the provisions of the statute and in no other manner.”, The same rule of construction has been used in the context of various other statutes and is undoubtedly applicable to the Constitution. The principle underlying this rule is that the provision may as well have not been enacted if the procedure it provides is not followed., Constitutional Order 272 was issued in exercise of the power under Article 370(1)(d). Paragraph 2 of Constitutional Order 272 is extracted below: “All provisions of the Constitution, as amended from time to time, shall apply in relation to the State of Jammu and Kashmir and the exceptions and modifications subject to which they shall so apply shall be as follows: To article 367, there shall be added the following clause, namely: (4) For the purposes of this Constitution as it applies in relation to the State of Jammu and Kashmir (a) references to this Constitution or to the provisions thereof shall be construed as references to the Constitution or the provisions thereof as applied in relation to the said State; (b) references to the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadar‑i‑Riyasat of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office, shall be construed as references to the Governor of Jammu and Kashmir; (c) references to the Government of the said State shall be construed as including references to the Governor of Jammu and Kashmir acting on the aid and advice of his Council of Ministers; and (d) in proviso to clause (3) of article 370 of this Constitution, the expression Constituent Assembly of the State referred to in clause (2) shall read Legislative Assembly of the State.”, Paragraph 2 of Constitutional Order 272 applies the entire Constitution of India (as amended from time to time) to the State of Jammu and Kashmir. While paragraph 2 does not specify any exceptions, it sets out a modification. It adds clause (4) to Article 367. Article 367, without the modification specified by Constitutional Order 272, reads as follows: “Interpretation. (1) Unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372, apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India. (2) Any reference in this Constitution to Acts or laws of, or made by, Parliament, or to Acts or laws of, or made by, the Legislature of a State, shall be construed as including a reference to an Ordinance made by the President or, to an Ordinance made by a Governor, as the case may be. (3) For the purposes of this Constitution foreign State means any State other than India: Provided that, subject to the provisions of any law made by Parliament, the President may by order declare any State not to be a foreign State for such purposes as may be specified in the order.”, Constitutional Order 272 applies the entire Constitution to the State of Jammu and Kashmir with a modification to Article 367 by way of sub‑clause (d) of the newly inserted clause (4). In terms of this modification, the term “Constituent Assembly of the State” referred to in clause (2) in the proviso to Article 370(3) shall be read as “Legislative Assembly of the State”. Accordingly, the proviso to Article 370(3) would read as follows: “Provided that the recommendation of the Legislative Assembly of the State shall be necessary before the President issues such a notification.”, The petitioners have challenged paragraph 2 of Constitutional Order 272 on the ground that a Constitutional Order issued in exercise of the power under Article 370(1)(d) cannot amend Article 370 itself., Other similar provisions of the Constitution and the interpretation accorded to them by the Supreme Court of India are instructive in the exercise of assessing whether the procedure followed in this case is valid. Article 368 of the Constitution provides for the procedure by which the Constitution may be amended. Clause (2) of Article 368 is extracted below: “Power of Parliament to amend the Constitution and procedure therefor. (2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two‑thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill: Provided that if such amendment seeks to make any change in (a) Article 54, Article 55, Article 73, Article 162, Article 241 or Article 279‑A, or (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part … any of the Lists in the Seventh Schedule, or (d) the representation of States in Parliament, or (e) the provisions of this article, the amendment shall also require to be ratified by the Legislature of not less than one‑half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.”, Clause (2) of Article 368 provides that the Constitution may be amended when a Bill for the purpose is passed in each House of Parliament by a majority of the total membership of that House and by a majority of not less than two‑thirds of the members of that House present and voting. However, an amendment which seeks to make any change to certain specified provisions is required to be ratified by the legislatures of not less than one‑half of the States in the manner provided, before the Bill is presented to the President for assent. A long line of cases concerning Article 368 of the Constitution have prioritised the substance or effect of an amendment while testing whether the proviso to Article 368 would be attracted., In Shankari Prasad Singh Deo v. Union of India, the Supreme Court of India adjudicated whether the Constitution (First Amendment) Act 1951, by which Articles 31‑A and 31‑B were inserted, was ultra vires. One of the arguments advanced by the petitioners was that the concerned Bill ought to have been ratified in terms of the procedure contemplated by the proviso to Article 368(2) because the impugned articles curtailed the powers of the High Courts under Article 226 and of the Supreme Court of India under Articles 132 and 136. Rejecting this argument, the Court held that the impugned articles did not make any change to Articles 226, 132 or 136., In Sajjan Singh v. State of Rajasthan, the Supreme Court of India adjudicated the validity of the Constitution (Seventeenth Amendment) Act 1964 by which Article 31A was amended and forty‑four statutes were added to the Ninth Schedule. The Court rejected the challenge, holding that the impugned Act does not purport to change the provisions of Article 226 and cannot be said to have that effect directly or in any appreciable measure. It noted that the effect must be of an appreciable or significant degree., This line of precedent was consolidated in Kihoto Hollohan v. Zachillhu, where a Constitution Bench of the Supreme Court of India was called upon to determine the constitutional validity of the Tenth Schedule. One of the grounds of challenge was that paragraph 7 of the Tenth Schedule brought about a change in the operation of Articles 136, 226 and 227 and that the concerned Bill ought to have been passed in compliance with the procedure laid down by the proviso to clause (2) of Article 368. Paragraph 7 of the Tenth Schedule reads: “Bar of jurisdiction of courts. Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule.”, Articles 136, 226 and 227 concern the jurisdiction of the Supreme Court of India and the High Courts respectively and the power of judicial review. Article 136 is found in Chapter IV of Part V and Articles 226 and 227 are present in Chapter V of Part VI.
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The proviso to clause (2) of Article 368 stipulates that a constitutional amendment which seeks to make a change to these chapters must be ratified in the manner provided, before the Bill which seeks to make such amendments is presented to the President for assent. The petitioners argued that the Bill inserting the Tenth Schedule attracted the proviso to Article 368(2) because it curtailed the power of judicial review and therefore ought to have been ratified by the prescribed number of States before it was presented to the President for assent., The majority, speaking through M N Venkatachaliah, J., rejected the challenge to the Tenth Schedule. However, it held that paragraph 7 had the effect of changing the application of Articles 136, 226, and 227, thereby attracting the proviso to Article 368(2). It found that paragraph 7 was severable from the other provisions of the Tenth Schedule and struck down paragraph 7 alone., The changes in Chapter IV of Part V and Chapter V of Part VI envisaged by the proviso need not be direct. The change could be either in terms of or in effect. It is not necessary to change the language of Articles 136 and 226 of the Constitution to attract the proviso. If in effect these articles are rendered ineffective and made inapplicable where these articles could otherwise have been invoked, there is in effect a change in those provisions attracting the proviso., In the present case, though the amendment does not bring in any change directly in the language of Articles 136, 226 and 227 of the Constitution, however, in effect paragraph 7 curtails the operation of those articles respecting matters falling under the Tenth Schedule. There is a change in the effect in Articles 136, 226 and 227 within the meaning of clause (b) of the proviso to Article 368(2). Paragraph 7, therefore, attracts the proviso and ratification was necessary., The Supreme Court of India determined the validity of paragraph 7 by considering whether it changed Articles 136, 226 and 227 in terms or in effect. It found that while the language of these provisions was not directly amended, the effect of paragraph 7 was to change the operation of these provisions. This approach indicates that the Supreme Court of India was concerned more with the substance of the constitutional amendment as opposed to its form. The minority judgment in Kihoto Hollohan (supra) concurred with the ruling of the majority on the constitutional validity of paragraph 7 but differed on the question of the validity of the entire Tenth Schedule, holding that it was constitutionally infirm in its entirety. Its approach to the interpretation of the issue concerning paragraph 7 was similar to that of the majority., Finally, in Union of India v. Rajendra N. Shah, the Supreme Court of India adjudicated the vires of the Constitution (Ninety Seventh Amendment) Act 2011 which inter alia introduced Part IXB under a chapter titled The Co-operative Societies. In particular, the Supreme Court of India dealt with the question of whether Part IXB was non est for want of ratification by half of the States under the proviso to Article 368(2). Answering the question in the affirmative, the Supreme Court of India held that:, A reading of the aforesaid judgments would indicate that the change spoken about by the proviso to Article 368(2) in any provision of the Constitution need not be direct in the sense of adding, subtracting, or modifying the language of the particular article or provision spoken of in the proviso. The judgments above referred to speak of a change in effect which would mean a change which, though not in the language of any provision of the Constitution, would yet be a change which would impact a particular article and the principle contained therein in some significant way. Thus, this extinction of the remedy alone without curtailing the right, since the question of disqualification of a Member on the ground of defection under the Tenth Schedule does require adjudication on enacted principles, results in making a change in Article 136 in Chapter IV in Part V and Articles 226 and 227 in Chapter V in Part VI of the Constitution., It is always important to remember that in matters affecting the Constitution of India, form always gives way to substance., From the above discussion, it emerges that the following aspects are of significance when assessing whether a change has been made to a provision of the Constitution: a. A change may be either in terms or in its effect; b. A change can be said to have been made even if the language of the concerned provision is not directly amended, by adding, subtracting or modifying the language. This is a change in effect; c. If the effect of an amendment is to change a provision, such effect must be significant or appreciable; and d. The substance of a change is more important than its form., Although this position of law relates to the proviso to Article 368(2), it is equally applicable to Article 370(3). This is because the precedents discussed in this segment explore the manner in which a change may be effected as well as what a change means at its core. While Article 370(3) employs the word modification and not change, the two terms are synonyms. Further, both articles concern, in essence, amendments to a provision of the Constitution. Therefore, the standards which have been set out in the preceding paragraph to determine whether a change was made apply to a determination of whether a modification was made., It follows that an assessment of whether a Constitutional Order amounts to a modification under Article 370(3) and consequently, whether the procedure under Article 370(1) or under Article 370(3) ought to have been followed depends on the standard set out in the preceding paragraph., The effect of a provision of law is as important as its form. In other words, what it actually does is as significant as what it appears to do, if not more. While the change sought to be made by paragraph 2 of Constitutional Order 272 may appear to be a modification or amendment of Article 367 at first blush, its effect is to amend Article 370 itself. Paragraph 2 couches the amendment to Article 370 in the language of an amendment or modification to Article 367 but its true import is to amend Article 370., Constitutional Order 272 purports to add Clause 4 to Article 367 and stipulates that the expression Constituent Assembly in the proviso to Article 370(3) shall be read as Legislative Assembly. The proviso to Article 370(3) states that the recommendation of the Constituent Assembly referred to in Clause 2 is necessary. Clause 2 of Article 370 refers to the Constituent Assembly for the purpose of framing the Constitution of the State. Thus, the proviso to Article 370(3) confers the power to make recommendations to that specific Constituent Assembly. Constitutional Order 272 changes the language to the proviso to Article 370(3) in two ways. First, it changes the recommending body from the Constituent Assembly to the Legislative Assembly; and second, it makes a new arrangement at variance with that specific Constituent Assembly., Both these changes are not insignificant because they modify the essential character of the proviso by substituting a particular type or kind of body with another type or kind entirely. There are myriad differences between a Constituent Assembly and a Legislative Assembly. A Constituent Assembly is tasked with framing a Constitution in exercise of constituent power. The power to amend a Constitution is a derived constituent power because it originates in the Constitution. Not having been entrusted with the responsibility to do this, the Legislative Assembly cannot be equated to the Constituent Assembly. Statutes and other laws (which fall within the domain of the Legislative Assembly) are not comparable to a Constitution because they are framed and enacted in exercise of legislative power. The Constitution is the grundnorm or the basic law, from which all other laws derive their validity and legitimacy. Indeed, the Legislative Assembly is itself constituted and constrained to operate in terms of the Constitution and is bound by it. This is not true of a Constituent Assembly, which has a free reign to frame a Constitution. As the scholar Martin Loughlin writes, constituent power is not the expression of the nation operating in accordance with some law of nature; it is a modern concept expressing the evolving precepts of political conduct which breathe life into the constitution., This remains true despite the Legislative Assembly of Jammu and Kashmir having the power to amend the Constitution of Jammu and Kashmir under Section 147. The difference between the plenary power to frame a Constitution and the power to amend a Constitution was recognized by the Supreme Court of India in I.R. Coelho v. State of Tamil Nadu., In Indira Nehru Gandhi v. Raj Narain, the Supreme Court of India expounded the meaning of constituent power: 48. When the constituent power exercises powers the constituent power comprises legislative, executive and judicial powers. All powers flow from the constituent power through the Constitution to the various departments or heads. In the hands of the constituent authority there is no demarcation of powers. It is only when the constituent authority defines the authorities or demarcates the areas that separation of power is discussed. The constituent power is independent of the doctrine of separation of powers. The constituent power is sovereign. It is the power which creates the organs and distributes the powers. 49. The constituent power is sui generis. It is different from legislative power. The position of unlimited law‑making power is the criterion of legal sovereignty. The constituent power is sovereign because the Constitution flows from the constituent power., In framing a Constitution, which is basic law, Constituent Assemblies deliberate upon and determine the mode and mechanism of governance, the rights of the people, the restrictions on state power, the scope of functioning of various institutions, the yardstick for the legality of state action, and other matters, all of which go to the heart of its vision and mission for the nation or the constituent unit (that is, the State) in question. A Constituent Assembly lays the foundation upon which the government will be built for ages to come. In contrast, the Legislative Assembly is concerned with statutes, rules, and regulations by which it responds to developments in society in real time. It is concerned with the day‑to‑day functioning of the state, which are short‑term concerns relative to the concerns accounted for by a Constituent Assembly. The mode of appointment of the members of these bodies, too, is not similar., Article 366 of the Constitution lays down the definition of the phrases used in the Constitution. These definitions shall apply unless the context requires otherwise. Article 367(1) of the Constitution states that unless the context otherwise requires, the General Clauses Act 1897 shall, subject to any adaptations and modifications made under Article 372, apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India. Article 372(2) grants the President the power to issue an order to make adaptations and modifications to any law which was in force immediately before the commencement of the Constitution to bring such law in accordance with the provisions of this Constitution. Clause 2 of Article 367 states that a reference to an Act of the Legislature of the State or Parliament shall be construed as including a reference to an Ordinance made by the Governor in exercise of power under Article 223 and the President in exercise of power under Article 123. Clause 2 of Article 367 merely reiterates the position of law in Articles 123 and 213 that an Ordinance shall have the same force and effect as an Act passed by a Legislature. Clause 3 to Article 367 states that for the purpose of the Constitution, foreign State means any State other than India. It must be noted that both Articles 366 and 367 begin with the phrase unless the context otherwise requires. The purpose of including this phrase is that the general definitions which are provided in Article 366 and the General Clauses Act must not render the constitutional provision otiose or alter the purpose of the provision itself. This is itself indicative that neither the interpretation clause nor the definition clause can be used to substantively alter any of the provisions of the Constitution., It is trite law that there is no bar on legislative bodies defining a word or term in an interpretation clause artificially such that the term is stretched or shrunk or otherwise given an artificial projection to make it more meaningful or to subserve the objective of the statute. The fundamental difference between a Constituent Assembly and a Legislative Assembly renders the modification of Article 367 a modification of Article 370(3), which has an effect that is appreciable and substantive. The difference is of a magnitude as to change the essential character of the proviso to Article 370. While the interpretation clause can be used to define or give meaning to particular terms, it cannot be deployed to amend a provision by bypassing the specific procedure laid down for its amendment. This would defeat the purpose of having a procedure for making an amendment., The consequence of permitting amendments through the circuitous manner would be disastrous. Many provisions of the Constitution would be susceptible to amendments which evade the procedure stipulated by Article 368 or other provisions. For instance, Articles 243D, 243T, 330 and 332 provide for the reservation of seats for Scheduled Castes in Panchayats, Municipalities, the Lok Sabha and the Legislative Assemblies of States respectively. Each of these provisions uses the word shall while prescribing reservation. This is indicative of the mandatory nature of the provision. Article 341 stipulates that the President may specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall be deemed to be Scheduled Castes for the purposes of the Constitution. Theoretically, can a public notification which deletes all castes, races or tribes or parts of or groups within them from the list of Scheduled Castes be contemplated? The consequence would be that no caste, race or tribe would be considered a Scheduled Caste for the purposes of the Constitution and the mandate of Articles 243D, 243T, 330 and 332 would be obviated without following the procedure prescribed by Article 368. Hence, amendments cannot be carried out by bypassing a procedure which has been laid down for that purpose., The decision of the Supreme Court of India in Madhav Rao Jivaji Rao Scindia v. Union of India supports this interpretation. Article 291 of the Constitution stipulated that where under any covenant or agreement entered into by the Ruler of any Indian State before the commencement of the Constitution, the payment of any sums free of tax has been guaranteed or assured by the Government of the Dominion of India to any Ruler of the State as a Privy Purse, such sums would be: a. charged on and paid out of the Consolidated Fund; and b. be exempt from all taxes on income., Article 366(21) as originally enacted and before its deletion by the Seventh Amendment contained a definition of the expression Rajpramukh: (21) Rajpramukh means (a) in relation to the State of Hyderabad, the person who for the time being is recognised by the President as the Nizam of Hyderabad; (b) in relation to the State of Jammu and Kashmir or the State of Mysore, the person who for the time being is recognised by the President as the Maharaja of that State; and (c) in relation to any other State specified in Part B of the First Schedule, the person who for the time being is recognised by the President as the Rajpramukh of that State, and includes in relation to any of the said States any person for the time being recognised by the President as competent to exercise the powers of the Rajpramukh in relation to that State. With the reorganization of the States in 1956 and the deletion of classification of States to Part A, Part B, and Part C States, the definition became obsolete and was deleted., Clause (22) of Article 366 defined the expression Ruler in relation to an Indian State to mean the Prince, Chief or other person by whom a covenant or agreement referred to in Article 291(1) was entered into and who, for the time being, was recognized as the Ruler of the State by the President. The definition extended to any person who was recognised by the President as the successor of the Ruler., Before Article 362 was repealed in 1971, it provided that in making laws or in exercise of their executive powers, Parliament and the Union and States shall have due regard to the guarantees or assurances given under any covenant under clause (1) of Article 291 with respect to the personal rights, privileges and dignities of the Ruler of an Indian State. The Privy Purses and the privileges of the Rulers of the Indian States were continued until 6 September 1970. The Twenty‑fourth Amendment Bill for terminating the Privy Purses was moved in the Lok Sabha. While the Lok Sabha passed the Bill with a two‑thirds majority, the requisite majority was not attained in the Rajya Sabha. When the Bill to amend the Constitution to delete the Privy Purses failed to pass muster, the President issued an Order withdrawing recognition of all the Rulers of Indian States on 6 September 1970. This gave rise to the petitions under Article 32 of the Constitution., Chief Justice M Hidayatullah, speaking for an eleven‑Judge Bench, rejected the contention of the Union of India that the petitions ought to fail in view of the bar contained in Article 363 of the Constitution. This was because the petitions sought to enforce the provisions of the Constitution relating to the covenants and agreements entered into by the erstwhile Rulers. Construing the provisions of Article 291, Hidayatullah, J. held that the immediate and dominant purpose of Article 291 was to ensure payment of Privy Purses, charge them under the Consolidated Fund and make them free of taxes on income. What was sought to be enforced was not the covenants of the instruments or agreements which were entered into with the Rulers by the Dominion but the mandate of Article 291 itself. The Orders of the President were held to be ultra vires., J C Shah, J. held that by the provisions enacted in Articles 366(22), 291 and 362, the privileges of the Rulers were made an integral part of the constitutional scheme by which a class of citizens, for historical reasons, was accorded special privileges. These privileges, the learned Judge held, could not be withdrawn arbitrarily by merely exercising the power under Article 366(22) to withdraw recognition. Article 291 was held to raise an obligation of the Union to pay the Privy Purses. K S Hegde, J. noted that the power under Article 366(22) was being exercised for a collateral purpose after the Bill to amend the Constitution to delete Articles 291, 362 and 366(22) had failed. The learned Judge held that it was not open to the Union Government to obviate complying with the provisions of the Constitution by taking recourse to the power under Article 366(22)., The decision of the Constitution Bench in Raghunathrao Ganpatrao v. Union of India arose from a challenge to the constitutional validity of the Twenty‑sixth constitutional Amendment. Articles 291 and 362 of the Constitution stood repealed by constitutional amendment and a new Article, Article 363A, was inserted resulting in the deprivation of the recognition accorded to the Rulers, declaring the abolition of the Privy Purses, and extinguishing the rights and obligations in respect of the Privy Purses., Adverting to the earlier decision in Madhav Rao Scindia, the Constitution Bench noted that the obligation to pay Privy Purses emanated from the Constitution and not in the covenants and agreements which were executed by the erstwhile Rulers. The Court held that the guarantees and assurances given under the Constitution were independent of the documents relating to their accession. Hence, after the introduction of Articles 291 and 362, the agreements and covenants had no existence at all and no obligation emanated from them. Rejecting the argument that the Privy Purses constituted an essential part of the constitutional structure so as to be a part of the basic structure, the Court held that the permanent retention of the Privy Purses and the privileges and rights would be incompatible with the sovereign and republican form of Government. The Constitution Bench rejected the submission that the grant of the Privy Purses was a consideration for the surrender of sovereignty by the Rulers of the Indian States., The Court held that the attitude of the princes towards joining a united India was one of resistance, reluctance and high bargain and it was the people of the States who forced them to accede to the new United India. The States, in other words, were free but not stable because of the stress and strain they underwent both from inside and outside. Through the process of integration and democratisation, multiple forces political, economic and geographic, and the democratic movement within the States accelerated the process of integration. The removal of Articles 291 and 362 was held not to infringe the basic structure of the Constitution., Having discussed the two judgments of the eleven‑judge Bench in Madhav Rao Scindia and of the Constitution Bench in Raghunathrao Ganpatrao, it becomes necessary to summarise the principles which are relevant to the present controversy: a. The guarantee of Privy Purses to the rulers of the erstwhile Indian states who had acceded to or merged with the Union emanated from the text of the Constitution (Article 291 and Article 366(22)) and not from the agreements antecedent to the adoption of the Constitution entered into by the rulers with the Dominion of India; b. So long as Article 291 continued to subsist, the abrogation of the Privy Purses could not be brought about by an executive act of de‑recognition of the rulers; c. Once the Constitution was itself amended so as to delete the entitlement of the erstwhile Rulers to receive Privy Purses and the corresponding obligation of the Union to pay Privy Purses, both the right and the obligation embodied in Article 291 came to an end; d. The payment of Privy Purses could not be regarded as a quid pro quo or consideration for the surrender of sovereignty by the erstwhile rulers of Indian states. Integration into the Union of India was a complex historical process which was shaped by history, politics, economics and geography as well as by the internal and external strains which were faced by the rulers and above all by the process of democratisation which was taking place in the Union of India; e. Article 291 and Article 366(22) were not a part of the basic features of the Constitution. The Supreme Court of India in Madhav Rao Jivaji Rao Scindia held that these Articles were an integral part of the Constitution. Tested on the anvil of the basic structure doctrine which was evolved in Kesavananda Bharati v. State of Kerala, this decision being subsequent to Madhav Rao Scindia, the Constitution Bench held in Raghunathrao Ganpatrao that those observations could not be elevated to construe Articles 291 and 366(22) to be a part of the basic features; f. The abrogation of Articles 291 and 366(22) by a constitutional amendment was as much a part of the political process which had commenced with the integration of the erstwhile princely States into the Union of India and the ultimate act of abrogation was a part of that political process designed to bring about substantive equality by doing away with the privileges which were extended to the erstwhile Indian rulers; and g. While the decision in Madhav Rao Scindia held that the guarantee under Article 291 could not be abrogated by a mere executive act of de‑recognising the erstwhile rulers of the Indian states, the subsequent decision in Raghunathrao Ganpatrao upheld the act of abrogation once it was backed by a constitutional amendment which deleted the provisions for the payment of Privy Purses., The discussion of the decisions in these two cases makes it evident that in Madhav Rao Scindia, the Supreme Court of India held that the power under Article 366(22) could not be used for a collateral purpose, to obviate the procedure under Article 368. This position of law was not diluted by Raghunathrao Ganpatrao. In the present case, Article 370(1)(c) read with the proviso to Article 370(3) provides a procedure by which Article 370 may be modified. Articles 370(1)(d) and 367 cannot be used for a collateral purpose in effect to modify or obliterate Article 370., The Union of India argued that Constitutional Order 272 was not the first Constitutional Order issued to modify Article 370 through Article 367. It flagged that this mechanism has been followed consistently in the past. The following Constitutional Orders were issued from time to time, which appear to modify or alter Article 370: a. Constitutional Order 44, issued in 1952; b. Constitutional Order 48, issued in 1954; c. Constitutional Order 56, issued in 1958; and d. Constitutional Order 74, issued in 1965., The manner in which these Constitutional Orders sought to modify Article 370 is germane to this Supreme Court of India's enquiry as to the validity of paragraph 2 of Constitutional Order 272. They are considered in turn. Constitutional Order 44 was issued by the President in exercise of the power under Article 370(3).
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In exercise of the powers conferred by clause (3) of Article 370 of the Constitution of India, the President, on the recommendation of the Constituent Assembly of the State of Jammu and Kashmir, is pleased to declare that, as from the 17th day of November, 1952, the said article 370 shall be operative with the modification that for the \Explanation\ in clause (1) thereof the following Explanation is substituted, namely: \Explanation – For the purposes of this article, the Government of the State means the person for the time being recognised by the President on the recommendation of the Legislative Assembly of the State as the Sadar-i-Riyasat of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office.\, Constitutional Order 44 modified the application of Article 370 by substituting the Explanation in sub‑clause (b) of clause (1). Significantly, Constitutional Order 44 was issued on the recommendation of the Constituent Assembly of Jammu and Kashmir while the Assembly was still functioning; it was dissolved only in 1957, and until then the procedure contemplated by the proviso to Article 370(3) could be followed. The modification of Constitutional Order 44 was therefore valid and not comparable to paragraph 2 of Constitutional Order 272., The President issued Constitutional Order 48 in exercise of the power under Article 370(1)(d). This Constitutional Order applied various provisions of the Constitution of India, with some modifications, to the State of Jammu and Kashmir. One of the modifications was effected by adding a provision to Article 367, namely: (4) For the purposes of this Constitution as it applies in relation to the State of Jammu and Kashmir (a) references to this Constitution or to the provisions thereof shall be construed as references to the Constitution or the provisions thereof as applied in relation to the said State; (b) references to the Government of the said State shall be construed as including references to the Sadar-i-Riyasat acting on the advice of his Council of Ministers; (c) references to a High Court shall include references to the High Court of Jammu and Kashmir; (d) references to the Legislature or the Legislative Assembly of the said State shall be construed as including references to the Constituent Assembly of the said State; (e) references to the permanent residents of the said State shall be construed as meaning persons who, before the commencement of the Constitution (Application to Jammu and Kashmir) Order, 1954, were recognised as State subjects under the laws in force in the State or who are recognised by any law made by the Legislature of the State as permanent residents of the State; and (f) references to the Rajpramukh shall be construed as references to the person for the time being recognised by the President as the Sadar-i-Riyasat of Jammu and Kashmir and as including references to any person for the time being recognised by the President as being competent to exercise the powers of the Sadar-i-Riyasat., The route utilised by Constitutional Order 48 and Constitutional Order 272 is similar in that both modify Article 367 in its application to the State of Jammu and Kashmir, but the changes made by Constitutional Order 48 do not amount to a modification of Article 370 itself. They are clarifications: sub‑clause (a) clarifies the extent of applicability of the Constitution to the State; sub‑clause (b) reiterates what had already been achieved by Constitutional Order 44; sub‑clause (d) clarifies that references to the Legislature of the State include the Constituent Assembly, which functioned as a legislature and enacted several laws; sub‑clauses (c) and (e) merely clarify the meaning of certain terms without modifying their fundamental nature., Any provision which referred to the Legislative Assembly of the State would therefore be applicable to the Constituent Assembly which was filling the shoes of the former until its dissolution in 1957. The Constituent Assembly of Jammu and Kashmir continued to be treated as the Legislative Assembly and the provision enabling this was subsequently removed by Constitutional Order 56 on 26 February 1958 after the Constituent Assembly ceased to exist., Hence, the modifications made by Constitutional Order 48 to Article 367 were in the nature of clarifications. They did not amount to a modification of Article 370 itself either in terms or in effect, to a significant or appreciable extent., The Union of India suggested that the insertion of sub‑clause (d) indicated that the terms Legislative Assembly and Constituent Assembly were used synonymously and were co‑equal. This argument cannot be accepted. Sub‑clause (d) was inserted to recognise the state of affairs at the time, namely that the Constituent Assembly had enacted certain laws for the State prior to the constitution of the Legislative Assembly. The Constituent Assembly may have discharged the functions of the Legislature for some time, but its role did not extend to framing a Constitution, which is a different function., Constitutional Order 56 modified Constitutional Order 48 inter alia by substituting the word Rajpramukh with the word Governor in the relevant clauses and sub‑clauses of Article 367., The Constitution (Seventh Amendment) Act 1956 abolished the position of Rajpramukh and introduced the Governor in its place. The portion of Constitutional Order 56 extracted above, like Constitutional Order 48, was a clarificatory provision introduced to recognise the state of affairs which existed at the time. Both Constitutional Order 48 and Constitutional Order 56 did not attempt to change or modify the law as it then existed; they merely clarified that the law would continue to apply in the same manner even after certain changes to the Constitution had been effected by other amending Acts. They are most accurately classified as consequential amendments to the Constitution, bringing it in line with an existing state of affairs., Constitutional Order 74 modified paragraph 2 of Constitutional Order 48 for the second time by substituting sub‑clauses of clause (4) of Article 367 as it applied to the State of Jammu and Kashmir. The effect of Constitutional Order 74 was to clarify that references to the Sadar-i-Riyasat must be read as meaning references to the Governor of the State., Mohd. Maqbool Damnoo v. State of Jammu and Kashmir 281 involved a petition challenging an order of preventive detention under the Jammu and Kashmir Preventive Detention Act 1964. The District Magistrate had passed an order under Section 13A that it was against the public interest to disclose the grounds of detention to the petitioner. The petition argued that the Amending Act by which amendments were made to the Preventive Detection Act in the State was invalid since it was not assented to by the Sadar-i-Riyasat. Chief Justice S. M. Sikri, speaking for the Constitution Bench, noted that Constitutional Order 44 was issued by the President on 16 November 1952 on the recommendation of the Constituent Assembly of the State of Jammu and Kashmir under Article 370, introducing an explanation that defined the Government of the State as the person recognised by the President as Sadar-i-Riyasat on the recommendation of the Legislative Assembly, acting on the advice of the Council of Ministers., Clause (4) was added to Article 367 so as to provide that for the purpose of the Constitution as it applies in relation to Jammu and Kashmir, references to the Government of the State would be construed as including references to the Sadar-i-Riyasat acting on the advice of his Council of Ministers. Thereafter, on 24 November 1965, the President with the concurrence of the State Government issued Constitutional Order 74, modifying Article 367 in its application to the State to provide that references to the Sadar-i-Riyasat acting on the aid and advice of the Council of Ministers shall be construed as references to the Governor of Jammu and Kashmir acting on the aid and advice of the Council of Ministers. The petitioner challenged the replacement of the Sadar-i-Riyasat by the Governor on the ground that it was ultra vires. Rejecting the challenge, Chief Justice Sikri held that the definition in the Explanation merely recognised the constitutional position as it existed on that date and that, once the Explanation ceased to operate because there was no longer any Sadar-i-Riyasat, the meaning given in Article 367(4) would apply, making the Governor competent to give the concurrence stipulated in Article 370 and perform other functions laid down by the Jammu and Kashmir Constitution., The Supreme Court of India held that the Governor was the successor of the Sadar-i-Riyasat and that the latter was only the name given to the head of the State. This encapsulates the reasons why Constitutional Order 74’s modification of Article 367 was clarificatory. Moreover, Constitutional Order 74 did not modify Article 370 in terms or in effect, to a significant or appreciable extent. The Court further observed that the addition of clauses (aa) and (b) supplied a definition which the courts would have given anyway, and therefore there was no amendment of Article 370(1) by the back‑door., Hence, the changes made by Constitutional Order 74 were also clarificatory and consequential in nature. They did not have the effect of amending Article 370., Convention certainly does not stand in the way of the Supreme Court of India’s adjudication as to the legal validity of an impugned provision of law including a Constitutional Order. However, three of the four Constitutional Orders which have been issued in the past and which modify Article 367 – namely Constitutional Orders 48, 56 and 74 – do not amount to modifications of Article 370, either in terms or in effect, in a manner that is appreciable or significant. The argument of the Union of India that these Constitutional Orders are indicative of the validity of Constitutional Order 272 cannot be accepted. Constitutional Order 44, which modified Article 370 by amending its language, was issued in a valid exercise of the power under Article 370(3) and hence does not come to the aid of the Union of India., Article 370(1)(c) applies the provisions of Articles 1 and 370 to the State of Jammu and Kashmir. Article 370(1)(d) confers the President with the power to apply other provisions of the Constitution subject to exceptions and modifications. The President issued Constitutional Order 272 in exercise of power under Article 370(1)(d) by which all the provisions of the Constitution were applied to Jammu and Kashmir. The petitioners argued that Article 370(1)(d) only contemplates a piece‑meal approach, i.e., the application of specific provisions, and not the application of the Constitution as a whole. They further argued that the entire Constitution can only be applied by the exercise of power under Article 370(3) by issuing a declaration that Article 370 shall cease to exist., The Supreme Court of India does not agree with the petitioners’ argument. Article 370(1)(d) states that such other provisions shall apply. The power under Article 370(1)(d) can be used to apply one provision, more than one provision, an entire Part of the Constitution, or all the provisions of the Constitution. The provision does not distinguish between applying a single provision or all provisions. Non‑application of mind cannot be claimed merely because the Constitutional Order applies all provisions of the Constitution to Jammu and Kashmir in one go., The application of all the provisions of the Constitution has the same effect as exercising power under Article 370(3) declaring that Article 370 ceases to exist, because when Article 370 ceases to exist, all the provisions of the Constitution automatically apply to Jammu and Kashmir. However, there is a crucial difference: the exercise of power under Article 370(1)(d) to apply all provisions of the Constitution is reversible and modifiable, whereas the exercise of power under Article 370(3) is irreversible. The Supreme Court in Sampath Prakash held that the President’s power to issue a Constitutional Order under Article 370(1)(d) includes the power to modify or amend the order in terms of Section 21 of the General Clauses Act 1897. Thus, an order issued under Article 370(1)(d) applying all the provisions of the Constitution to the State can be amended, rescinded or modified, while the exercise of power under Article 370(3) is permanent., Article 370(1)(d) states that the President may by order specify which of the provisions of the Constitution other than Articles 1 and 370 shall apply to Jammu and Kashmir. The second proviso to Article 370(1)(d) stipulates that if a provision does not relate to matters in the Union, the President must issue the order with the concurrence of the Government of the State of Jammu and Kashmir. In exercise of the power under Article 370(1)(d), the President issued Constitutional Order 272 by which all provisions of the Constitution of India were applied to the State of Jammu and Kashmir. The order states that the President issued it with the concurrence of the Government of the State of Jammu and Kashmir. The phrase \Government of the State\ as defined in 1965 meant the Governor on the aid and advice of the Council of Ministers. However, by the time of the 2018 Proclamation the Governor had dissolved the Legislative Assembly and the President, by the Proclamation, had assumed all functions of the Government of the State and all powers vested in or exercisable by the Governor., Applying the standard devised above to test the validity of the exercise of power by the President when the Proclamation is in force, the petitioner must first prove that the exercise of power was mala fide., The effect of applying all the provisions of the Constitution without any modifications or exceptions is that the Constitution as a whole applies to Jammu and Kashmir in a manner similar to other States. Thus, the distinction that Article 370 sought to bring between Jammu and Kashmir and the other states in the First Schedule would cease to exist. An order applying all the provisions of the Constitution in exercise of power under Article 370(1)(b) has the same effect as declaring that Article 370 ceases to exist in exercise of the power under Article 370(3)., The Explanation to Article 370 at the time of the adoption of the Constitution stated that the Maharaja of the State shall be the Government of the State for the purposes of the provision. The President issued Constitutional Order 44 in exercise of the power under Article 370(3) upon the recommendation of the Constituent Assembly to amend the Explanation to Article 370. In the amended Explanation, Government of the State meant the Sadar-i-Riyasat. The President then issued Constitutional Order 1965 in exercise of power under Article 370(1)(b) by which Article 367 (the interpretation provision) was amended in its application to Jammu and Kashmir, adding a provision that reference to Sadar-i-Riyasat in the Explanation to Article 370 shall mean the Governor., The Supreme Court, while rejecting the petitioners’ argument, observed that the Explanation only recognised the constitutional position as it existed in the State. The Court held that the Governor, similar to the Sadar-i-Riyasat, is the head of the State and, although not elected as the Sadar-i-Riyasat was, he exercises his powers on the aid and advice of the Government of the State. Hence, the fundamental character of representative government is not altered., The judgment of the Constitution Bench in Damnoo holds that the fundamental character of representative democracy underlies the provisos to Article 370(1)(d) and 370(1)(b), which require the concurrence and consultation of the Government of the State before the President issues an order expanding the legislative powers of the Union in the State or applying the provisions of the Constitution of India to Jammu and Kashmir. The purpose of these provisos is to ensure collaboration between the Union and the State; this purpose would be lost if the President secured his own concurrence while exercising the power., In the present case, the President seeking the concurrence of the Union Government instead of the Government of the State to issue Constitutional Order 272 is not invalid because: (a) the effect of applying all the provisions of the Constitution to the State through Article 370(1)(d) is the same as an exercise of power under Article 370(3) notifying that Article 370 shall cease to exist, the only difference being that the former can be reversed while the latter cannot; (b) the President has the power under Article 370(3) to unilaterally notify that Article 370 shall cease to exist; (c) consultation and collaboration are required only where the application of the provisions of the Indian Constitution to the State would require amendments to the State Constitution; (d) the principle of consultation and collaboration does not apply where the effect of the provision is the same as Article 370(3); (e) the President, in exercise of the power under Article 370(1)(d), issued Constitutional Order 272 applying all the provisions of the Constitution to the State, so concurrence of the Government of the State was not required; and (f) the exercise of power is mala fide only if exercised with an intent to deceive, which is not the case here., In view of the above discussion, the concurrence of the Government of the State was not necessary for the President to exercise power under Article 370(1)(d) to apply all provisions of the Constitution to Jammu and Kashmir. The exercise of power by the President under Article 370(1)(d) to issue Constitutional Order 272 is not mala fide. Thus, Constitutional Order 272 is valid to the extent that it applies all the provisions of the Constitution of India to the State of Jammu and Kashmir., The President, in exercise of the power under Article 370(3) and upon the recommendation of Parliament, declared that Article 370 shall cease to exist. The provision was substituted with a clause stipulating that all provisions of the Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding any contrary provision in any law. The Court has held that the substitution of the phrase \Constituent Assembly of the State\ with \Legislative Assembly of the State\ by Constitutional Order 272 is invalid. The Union of India argued that the power under Article 370(3) subsists independent of the proviso after the Constituent Assembly was dissolved in 1957. If that contention were accepted, the invalidity of the substitution would not affect the exercise of power by the President under the provision to Constitutional Order 273., The Court has held that the President has the power to unilaterally issue a notification under Article 370(3) declaring that Article 370 shall cease to exist or that it shall exist with such modifications, and that the dissolution of the Constituent Assembly does not affect the scope of power held by the President under Article 370(3). The next issue is whether the exercise of power under Article 370(3) in issuing Constitutional Order 273 was justified. The President, while deciding whether the power under Article 370(3) must be exercised, determines if the special circumstances which warranted a special solution in the form of Article 370 have ceased to exist. This is a policy decision that falls within the realm of the executive and is not subject to judicial review except on the ground of mala fide exercise., The petitioners referred to questions asked in Parliament after the Proclamation under Article 356 regarding whether the Government proposed to repeal Article 370. The Union Government did not give a categorical answer to those questions. This in itself does not lead to the conclusion that the exercise of power was mala fide, irrational, or without application of mind., At this stage, the Constitutional Orders which were issued by the President in exercise of powers under Article 370(1) applying the provisions of the Constitution must be referred to., On 26 January 1950, the President issued the Constitution (Application to Jammu and Kashmir) Order 1950 in consultation with the Government of Jammu and Kashmir.
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Paragraph 2 to Constitution (Application to Jammu and Kashmir) Order 10 states that Parliament may enact laws for Jammu and Kashmir with respect to matters specified in the First Schedule to the Constitution (Application to Jammu and Kashmir) Order which corresponds to the matters specified in the Instrument of Accession. Paragraph 3 states that in addition to Articles 1 and 370, the provisions in the Second Schedule shall apply to Jammu and Kashmir subject to such modifications and exceptions as specified. The subjects in List I of the Seventh Schedule on which Parliament could make laws were Entries 1‑6, 922, 25‑31, 41, 72‑77, 80, 93‑96. The constitutional provisions which were made applicable with exceptions and modifications were: Part V (The Union), Part XI (Relations between the Union and the States), Part XII (Finance, Property, Contracts and Suits), Part XV (Elections), Part XVI (Special Provisions relating to certain classes), Part XVII (Official language), Part XIX (Miscellaneous), Part XX (Amendment of the Constitution), Part XXI (Temporary Transitional and Special Provisions), Part XXII (Short Title, Commencement, Authoritative Text in Hindi and Repeals), First Schedule, Second Schedule, Third Schedule, Fourth Schedule and Eighth Schedule., On 14 May 1954, the President, with the concurrence of the Jammu and Kashmir government, issued the Constitution (Application to Jammu and Kashmir) Order 1954 in supersession of Constitution (Application to Jammu and Kashmir) Order 10 as amended from time to time. Paragraph 2 set out those provisions of the Constitution which, in addition to Article 1 and Article 370, would be applicable to the State of Jammu and Kashmir with exceptions and modifications. In Article 3 of the Constitution, the following proviso was introduced: Provided further that no Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of that State shall be introduced in Parliament without the consent of the Legislature of that State., Constitution (Application to Jammu and Kashmir) Order 48 amended Article 35 and introduced Article 35A as a new article into the Constitution. In Article 35, references to the commencement of the Constitution shall be construed as references to the commencement of this Order; in clause (a)(i) the words, figures and brackets of clause (3) of Article 16 and clause (3) of Article 32 shall be omitted; and after clause (b) the following clause shall be added: (c) no law with respect to preventive detention made by the Legislature of the State of Jammu and Kashmir, whether before or after the commencement of the Constitution (Application to Jammu and Kashmir) Order 1954, shall be void on the ground that it is inconsistent with any provision of this Part, but any such law shall, to the extent of such inconsistency, cease to have effect on the expiration of five years from the commencement of the said Order, except as respects things done or omitted to be done before the expiration thereof. After Article 35, the following new article shall be added: Article 35A – Saving of laws with respect to permanent residents and their rights. Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law thereafter enacted by the Legislature of the State defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects employment under the State Government; acquisition of immovable property in the State; settlement in the State; or right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part., Constitution (Application to Jammu and Kashmir) Order 48 also added clause (4) into Article 367 of the Constitution in the following terms: (4) For the purposes of this Constitution as it applies in relation to the State of Jammu and Kashmir, references to this Constitution or to the provisions thereof shall be construed as references to the Constitution or the provisions thereof as applied in relation to the said State; references to the Government of the said State shall be construed as including references to the Sadar-i-Riyasat acting on the advice of the Council of Ministers; references to a High Court shall include references to the High Court of Jammu and Kashmir; references to the Legislature or the Legislative Assembly of the said State shall be construed as including references to the Constituent Assembly of the said State; references to the permanent residents of the said State shall be construed as meaning persons who, before the commencement of the Constitution (Application to Jammu and Kashmir) Order 1954, were recognised as State subjects under the laws in force in the State or who are recognised by any law made by the Legislature of the State as permanent residents of the State; and references of the Rajpramukh shall be construed as references to the person for the time being recognised by the President as the Sadar-i-Riyasat of Jammu and Kashmir and as including references to any person for the time being recognised by the President as being competent to exercise the powers of the Sadar-i-Riyasat., The amending power under Article 368 of the Constitution was modified in relation to the State of Jammu and Kashmir by the insertion of the following proviso: Provided further that no such amendment shall have effect in relation to the State of Jammu and Kashmir unless applied by order of the President under clause (1) of Article 370., Constitution (Application to Jammu and Kashmir) Order 48 applied certain Parts of the Constitution to Jammu and Kashmir with exceptions and modifications. These Parts were: Part I (Union and its Territory), Part II (Citizenship), Part III (Fundamental Rights), Part XI (Relations between the Union and the States), Part XII (Finance, Property, Contracts and Suits), Part XIII (Trade, Commerce and Intercourse within the territory of India), Part XIV (Services under the Union and the States), Part XV (Elections), Part XVI (Special Provisions relating to certain classes), Part XVII (Official language), Part XVIII (Emergency provisions), Part XIX (Miscellaneous), Part XX (Amendment of the Constitution), Part XXI (Temporary Transitional and Special Provisions), Part XXII (Short Title, Commencement, Authoritative Text in Hindi and Repeals), First Schedule, Second Schedule, Third Schedule, Fourth Schedule, Seventh Schedule, Eighth Schedule, Ninth Schedule. Other notable features of Constitution (Application to Jammu and Kashmir) Order 48 were: (a) the introduction of a separate provision for permanent residents under Article 7; (b) the removal of references to Scheduled Tribes from Article 15(4); (c) application of Articles 19, 22, 31, 31A and 32 with some modifications. Clause (7) was added by Constitution (Application to Jammu and Kashmir) Order 48 to Article 19 in the following terms: (7) The words “reasonable restrictions” occurring in clauses (2), (3), (4) and (5) shall be construed as meaning such restrictions as the appropriate Legislature deems reasonable., The Constitution (Application to Jammu and Kashmir) Order also specified that List II and List III of the Seventh Schedule shall be omitted. With respect to List I, a few entries were substituted (entries 3, 43, 81, 53, 72 and 76) and omitted (entries 44, 50, 52, 55, 60, 67, 69, 78, 79 and 97). Entry 97 of List I, which grants Parliament the residuary power to enact laws with respect to any matter not enumerated in List II or List III, including any tax not mentioned in either of those lists, was omitted., On 16 January 1958, the President issued Constitution (Application to Jammu and Kashmir) Order 55 to expand the powers of the Central Government in matters pertaining to the taxation of inter‑state commerce. Order 55 modified the application of Articles 269 and 286 and inserted a new entry into the Seventh Schedule., On 26 February 1958, the Constitution of India as in force on 15 February 1958 was applied to Jammu and Kashmir with exceptions and modifications. The following provisions of the Constitution were also applied with suitable modifications: Articles 149, 150 and 151 (relating to CAG, forms of accounts and audit); Article 266 (consolidated funds); Article 267(2) (contingency fund); Article 273 (grant in lieu of export duty on jute and jute products); Article 282 (grants from revenues); Article 283 (law to be made for withdrawal from contingency fund); Article 284 (custody of deposits with public servants and courts); Article 298 (power to carry on trade); Article 299 (contractual powers of the State in the name of the Governor); Article 300 (suits and proceedings). Part XIV (relating to services under the State) was applied with suitable modifications. The Union List of the Seventh Schedule was modified as follows: (i) for entry 3, the entry “Administration of cantonments” shall be substituted; (ii) entries 8, 9 and 34, the words “trading corporations, including” in entry 43, entries 44, 50, 52, 55 and 60, the words “and records” in entry 67, entries 69, 78 and 79, the words “inter‑State migration” in entry 81, and entry 97 shall be omitted; and (iii) in entry 72, the reference to the States shall be construed as not including a reference to the State of Jammu and Kashmir., Constitution (Application to Jammu and Kashmir) Order 56 deleted in clause 4(d) of Article 367 the reference to the Legislative Assembly as including references to the Constituent Assembly. The clause had been added in 1954 and, following the adoption of the Jammu and Kashmir Constitution, was deleted. On 9 February 1959, Constitution (Application to Jammu and Kashmir) Order 57 issued by the President made the provisions of Entry 69 of the Union List (cultivation, manufacture and sale for export of opium) available to Parliament in its legislative domain., On 23 April 1959, as a consequence of Constitution (Application to Jammu and Kashmir) Order 59, the exceptions and modifications to Article 19 and Article 35C made by the Order of 1954 were extended from five to ten years. On 20 January 1960, Part VI of the Constitution (the States) was applied with suitable modifications, excluding Articles 153‑217, 219, 221, 223 and 237. The provision was added to enable the transfer of judges on the recommendation of the Sadar-i-Riyasat. A new clause was introduced into Article 229 to provide that transfers to or from the State of Jammu and Kashmir shall be made after consultation with the Sadar-i-Riyasat., On 22 June 1960, Entry 50 of the Union List in the Seventh Schedule (Establishment of Standards of Weight and Measure) was made available to Parliament. On 2 May 1961, as a consequence of Constitution (Application to Jammu and Kashmir) Order 62, Entry 50 (Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest) was brought within the legislative domain of Parliament in relation to Jammu and Kashmir., On 26 September 1963, Constitution (Application to Jammu and Kashmir) Order 66 was issued. Article 246 of the Constitution, which originally applied with one clause by virtue of Order 48 of 1954, was applied with the modification that Parliament would have the power to make laws in respect of those entries in the Union List and in the Concurrent List which were applicable to Jammu and Kashmir. Article 254 was also applied to ensure the supremacy of Parliamentary legislation in the case of a repugnancy with State legislation on areas which fell within the domain of Parliament. The Seventh Schedule was made applicable with certain modifications: (a) In the Union List (i) for entry 3, the entry “Administration of cantonments” shall be substituted; (ii) entries 8, 9 and 34, the words “trading corporations, including” in entry 43, entries 55 and 60, the words “and records” in entry 67, entries 78 and 79, the words “inter‑State migration” in entry 81, and entry 97 shall be omitted; (iii) in entry 44, after the words “but not including universities”, the words “in so far as such corporations relate to the legal and medical professions” shall be inserted; and (iv) in entry 72, the references to the States shall be construed as not excluding a reference to the State of Jammu and Kashmir. (b) The State List shall be omitted. (c) The Concurrent List was applied for the first time as follows: (i) for entry 26, the entry “Legal and medical professions” shall be substituted; (ii) entries 1 to 25 and entries 27 to 44 shall be omitted; and (iii) in entry 45, the words “List II or List III” shall be substituted with “this List”., On 6 March 1964, by the issuance of Constitution (Application to Jammu and Kashmir) Order 69, the exceptions and modifications to Article 19 and Article 35C made by Orders 48 and 59 were extended from ten to fifteen years. Earlier changes were made in the Concurrent List as follows: (c) In the Concurrent List (i) for entry 1, the entry shall be substituted: “Criminal law (excluding offences against laws with respect to any of the matters specified in List I and excluding the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power) in so far as such criminal law relates to offences against laws with respect to trade and commerce and the production, supply, distribution and price control of gold.” (ii) in entry 24, after the words “and maternity benefits”, the words “but only with respect to labour employed in the coal‑mining industry” shall be inserted. (iii) for entry 26, the entry “Legal and medical professions” shall be substituted. (iv) for entry 33, the entry shall be substituted: “Trade and commerce in, and the production, supply and distribution of, the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the public interest, in so far as such industry relates to gold, and imported goods of the same kind as such products.” (v) for entry 34, the entry “Price control of gold” shall be substituted. (vi) entries 2 to 23, entry 25, entries 27 to 32 and entries 35 to 44 shall be omitted. (vii) in entry 45, the words “List II or List III” shall be substituted with “this List”., On 2 October 1964, further entries in the Union List and the Concurrent List were made applicable by Constitution (Application to Jammu and Kashmir) Order 70. In the Union List, Entry 55 (Regulation of labour and safety in mines and oilfields) and Entry 60 (Sanctioning of cinematograph films for exhibition) were made applicable. In the Concurrent List, Entry 1 was substituted to read: “Criminal law (excluding offences against laws with respect to any of the matters specified in List I and excluding the use of naval, military or air force or any other armed forces of the Union in aid of the civil power) in so far as such criminal law relates to offences against laws with respect to any of the matters specified in this List.” Entry 30 was substituted to read: “Vital statistics in so far as they relate to births and deaths, including registration of births and deaths.” Entries 25 (Education) and 39 (Newspapers, books and printing presses) became available in the Concurrent List., On 21 November 1964, by Constitution (Application to Jammu and Kashmir) Order 71, Order 48 of 1954 was amended. As a consequence, Article 356 was applied in a modified form so that references to the Constitution would include the Constitution of Jammu and Kashmir., On 10 April 1965, the Legislative Assembly passed the Constitution of Jammu and Kashmir (Sixth Amendment) Act 1965, substituting the expressions Sadar-i-Riyasat and Prime Minister in the Constitution of the State with the expressions Governor and Chief Minister., On 17 May 1965, further changes were made in the applicability of the Seventh Schedule by Constitution (Application to Jammu and Kashmir) Order 72. As a result, additional entries in the Union List became available to Parliament: Entry 43 (incorporation, regulation and winding up of trading corporations, including banking, insurance and financial corporations but not including co‑operative societies) and Entry 78 (constitution and organisation of the High Courts except provisions as to officers and servants of High Courts; persons entitled to practise before the High Court). In the Concurrent List, Entries 33, 285, and 34286 (Trade and commerce in, and the production, supply and distribution of: (a) the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the public interest, and imported goods of the same kind as such products; (b) foodstuffs, including edible oilseeds and oils; (c) cattle fodder, including oilcakes and other concentrates; (d) raw cotton, whether ginned or unginned, and cotton seed; (e) raw jute) became available within the legislative domain of Parliament without modifications. Entries 4287, 11288 and 35289 were also made applicable., On 24 November 1966, Constitution (Application to Jammu and Kashmir) Order 74 was issued, applying the Constitution as in force on 20 June 1964 with exceptions and modifications. The application of Article 222 was modified to provide for consultation with the Governor while transferring the judges of the High Court. Order 74 also modified the application of Order 48 concerning Article 367(4) as follows: (4) For the purposes of this Constitution as it applies in relation to the State of Jammu and Kashmir, (a) references to this Constitution or to the provisions thereof shall be construed as references to the Constitution or the provisions thereof as applied in relation to the said State; (aa) references to the person for the time being recognised by the President on the recommendation of the Legislative Assembly of the State as the Sadar-i-Riyasat of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State, shall be construed as references to the Governor of Jammu and Kashmir; (b) references to the Government of the said State shall be construed as including references to the Governor of Jammu and Kashmir acting on the advice of his Council of Ministers, provided that for any period prior to 10 April 1955 such references shall be construed as including references to the Sadar-i-Riyasat acting on the advice of his Council of Ministers; (c) references to a High Court shall include references to the High Court of Jammu and Kashmir., On 29 June 1966, Constitution (Application to Jammu and Kashmir) Order 75 was issued, modifying the application of Article 81 regarding the delimitation of seats. In Article 81, for clauses (2) and (3), the following clause was substituted: (2) For the purposes of sub‑clause (a) of clause (1), six seats shall be allotted to the State in the House of the People; the State shall be divided into single‑member territorial constituencies by the Delimitation Commission constituted under the Delimitation Commission Act, 1962, as the Commission may deem fit, with constituencies geographically compact, taking into account physical features, existing administrative boundaries, communication facilities and public convenience; the constituencies shall not comprise the area under the occupation of Pakistan; and until the dissolution of the existing House of the People, the representatives of the State shall be appointed by the President on the recommendation of the Legislature of the State., On 13 February 1967, the issuance of Constitution (Application to Jammu and Kashmir) Order 76 applied the Constitution in force after the 19th Amendment with suitable exceptions and modifications. On 5 May 1967, incidental changes were made to the applicability of the Seventh Schedule, applying Entry 19293 of the Concurrent List., On 11 August 1967, Constitution (Application to Jammu and Kashmir) Order 79 applied the Constitution in force after the 21st Amendment with suitable exceptions and modifications., On 26 December 1967, Entries 16294 and 18295 of the Concurrent List were applied by Constitution (Application to Jammu and Kashmir) Order 80. On 9 February 1968, Entry 72 of the Union List was modified in its application by Order 48 of 1954., On 17 February 1969, Constitution (Application to Jammu and Kashmir) Order 85 applied the provisions of Article 248 in a substituted form, giving exclusive power to Parliament to make laws with respect to the prevention of activities directed towards denying, questioning or disrupting the sovereignty and territorial integrity of India, or secession of any part of the territory of India from the Union, or causing insult to the Indian National Flag, the Indian National Anthem and this Constitution. This order therefore provided Parliament with residuary legislative powers in the sphere dealing with the sovereignty and integrity of India., On 31 March 1969, Constitution (Application to Jammu and Kashmir) Order 86 extended the exceptions and modifications to Articles 19 and 35C from fifteen to twenty years., On 24 August 1971, Constitution (Application to Jammu and Kashmir) Order 89 applied the 21st Amendment and Section 5 of the 23rd Amendment. Clause 3 of Article 32 was omitted and Part VI was applied with suitable modifications., On 8 November 1971, Constitution (Application to Jammu and Kashmir) Order 90 made a minor change to the Concurrent List and Entry 43297., On 29 November 1971, the 24th Amendment was applied by Constitution (Application to Jammu and Kashmir) Order 91., On 24 February 1972, Constitution (Application to Jammu and Kashmir) Order 92 applied Entry 60298 of the Union List. On 6 May 1972, Constitution (Application to Jammu and Kashmir) Order 93 widened the scope of Article 248 to enable Parliament to exclusively legislate for imposing taxes on foreign travel by sea or air, inland air travel, and postal articles, including money orders, phonograms and telegrams. Articles 153‑217, 219, 221, 223, 224, 224A, 225, 227‑237 were omitted., As a result of Constitution (Application to Jammu and Kashmir) Order 94 issued in 1972, the constitutional amendments up to the 26th Amendment were applied. Article 290, dealing with adjustment of certain expenses and pensions, was applied. Certain changes were made in the application of Entry 2 (Criminal Law), Entry 12 (Evidence) and Entry 13 (Civil Procedure) of the Concurrent List., On 10 August 1972, Constitution (Application to Jammu and Kashmir) Order 95 applied Entry 67 of the Union List without modifications, while Entries 36 (Factories), 40 (Archaeological sites and remains other than those declared by or under law made by Parliament) and 42 (Acquisition and requisitioning of property) were applied with modifications., On 1 May 1974, Constitution (Application to Jammu and Kashmir) Order 97 extended the exceptions and modifications to Article 19 and Article 35C from twenty to twenty‑five years. On 26 June 1974, Constitution (Application to Jammu and Kashmir) Order 98 substituted Article 248 to read: “Residuary powers of legislation – Parliament has exclusive power to make any law with respect to (a) prevention of activities directed towards denying, questioning or disrupting the sovereignty and territorial integrity of India or bringing about cession of any part of the territory of India from the Union, or causing insult to the Indian National Flag, the Indian National Anthem and this Constitution; and (b) taxes on (i) foreign travel by sea or air; (ii) inland air travel; (iii) postal articles, including money orders, phonograms and telegrams.”, The provisions of Article 352, dealing with the proclamation of emergency, as modified by Order 48 of 1954, were further modified on 29 June 1975 by Constitution (Application to Jammu and Kashmir) Order 100 to provide for an ex post facto request or concurrence. Constitution (Application to Jammu and Kashmir) Order 101 issued on 23 July 1975 modified the application of Article 368 to impose restrictions on the power of the State Legislative Assembly to amend the Constitution of Jammu and Kashmir regarding the terms of service and the privileges and immunities of the Governor and the superintendence, direction and control of elections by the Election Commission of India., Constitution (Application to Jammu and Kashmir) Orders 103 (issued on 2 March 1976) and 104 (issued on 25 May 1976) provided for the applicability of the 26th, 30th, 31st, 33rd and 38th Amendments to the Constitution as specified., On 12 October 1976, Constitution (Application to Jammu and Kashmir) Order 105 envisaged the application of the 26th, 30th, 31st, 33rd, 38th and 39th Amendments to the extent specified. On 31 December 1976, the Ninth Schedule was amended by Order 106. On 31 December 1977, Constitution (Application to Jammu and Kashmir) Order 108 provided that Section 2 of the 25th Amendment and clause 4 of Article 368, as added by Order 101, shall read: (4) No law made by the Legislature of the State of Jammu and Kashmir seeking to make any change in or affect any provision of the Constitution of Jammu and Kashmir relating to (a) appointment, powers, functions, duties, emoluments, allowances, privileges or immunities of the Governor; or (b) superintendence, direction and control of elections by the Election Commission of India, eligibility for inclusion in the electoral rolls, without discrimination, adult suffrage and composition of the Legislative Council, being matters specified in sections 138, 139, 140 and 50 of the Constitution of Jammu and Kashmir, shall have any effect unless such law, after being reserved for the consideration of the President, receives his assent. The 40th Amendment was applied to the State of Jammu and Kashmir., On 4 June 1985, Constitution (Application to Jammu and Kashmir) Order 122 modified Article 248 as applied to the State of Jammu and Kashmir, empowering Parliament to make laws for the prevention of terrorist activities, and amended the Union List as applied to the State to empower Parliament to legislate on the subject.
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Similar changes were made to Entry 97 of the Union List. Entries 2 (Criminal Law) and 12 (Evidence) of the Concurrent List were applied with modifications., On 4 December 1985, Constitution Order 124 was issued in terms of which Articles 339 and 342 of the Constitution were applied to the State of Jammu and Kashmir to allow the President to appoint a Commission for the welfare of Scheduled Tribes in the State and to notify Scheduled Tribes., During the prevalence of Governor's rule, Constitution Order 129 was issued on 30 July 1986 to provide for the modified application of Article 249. In terms of the modification, it was envisaged that the Rajya Sabha could by passing a resolution with a two‑thirds majority empower Parliament to make laws on any matter specified in the resolution being a matter which is not enumerated in the Union List or the Concurrent List. As a consequence, Parliament could legislate on any subject which would have otherwise been under the sole competence of the State legislature., The provisions of the anti‑defection Law were extended to the State of Jammu and Kashmir by Constitution Order 136 on 20 January 1989. The 61st constitutional amendment which lowered the voting age from twenty‑one to eighteen years was extended to the State of Jammu and Kashmir by Constitution Order 141 on 25 July 1989., On 6 July 2017, Constitution Order 269 harmonised the tax administration of the State of Jammu and Kashmir with the Goods and Services Tax regime as was prevalent in the rest of the country. As a consequence, Entry 82 of the Union List was applied with modifications. As a consequence of Constitution Order 269, the Jammu and Kashmir Goods and Services Tax Act 2017, the Central Goods and Services Tax (Extension to Jammu and Kashmir) Ordinance 2017 and the Integrated Goods and Services Tax (Extension to Jammu and Kashmir) Ordinance 2017 resulted in the CGST, SGST and IGST regime being applicable in Jammu and Kashmir., Since the first Constitution Order issued under Article 370(1)(d) in 1950, the President has used the power to issue Constitution Orders more than forty times. As the Constitution of India applied to the State of Jammu and Kashmir before Constitution Order 272 was issued, the following Parts or provisions of the Constitution were not applied to Jammu and Kashmir: Part IV dealing with the Directive Principles of State Policy; Articles 153 to 213 dealing with the executive power of States, the State Legislature, and the legislative power of the Governor; Articles 214 to 217, 219, 221, 223 to 225 dealing with the power of appointing judges to the High Court of Jammu and Kashmir and their conditions of service; Part VII dealing with the States in Part B of Schedule 1; Part VIII dealing with Union Territories; Part X dealing with the Scheduled and Tribal Areas; and the Fifth and Sixth Schedules., The slew of Constitution Orders issued by the President under Article 370(1)(d) applying various provisions of the Constitution and applying provisions with modification indicate that over the course of the last seventy years, the Union and the State have through a collaborative exercise constitutionally integrated the State with the Union. This is not a case where only Articles 1 and 370 of the Constitution were applied to the State of Jammu and Kashmir and suddenly after seventy years the entire Constitution was being made applicable. The continuous exercise of power under Article 370(1) by the President indicates that the gradual process of constitutional integration was ongoing. The declaration issued by the President in exercise of the power under Article 370(3) is a culmination of the process of integration. Thus, we do not find that the President's exercise of power under Article 370(3) was mala fide., It is necessary to determine the status and applicability of the Constitution of Jammu and Kashmir, in view of Constitution Orders 272 and 273. In the segment of the judgment on whether the State of Jammu and Kashmir possesses sovereignty, Supreme Court of India analysed the provisions of the Constitution of India and the Constitution of Jammu and Kashmir and arrived at the conclusion that the latter is subordinate to the former., Paragraph 2 of Constitution Order 272 stipulated that the provisions of the Constitution of India (as amended from time to time) shall apply in relation to the State of Jammu and Kashmir. In the preceding segments of the judgment, Supreme Court of India has struck down the portion of paragraph 2 of Constitution Order 272 which seeks to amend Article 370 by specifying a modification to Article 367. It was, however, held that the application of the entire Constitution of India to the State is a valid exercise of power. Constitution Order 273 was issued a day after Constitution Order 272 was issued. It stated that all clauses of Article 370 shall cease to be operative except the following: All provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in article 152 or article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgement, ordinance, order, by‑law, rule, regulation, notification, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under article 363 or otherwise., While the modified version of Article 370 provided that all the provisions of the Constitution of India shall apply to the State of Jammu and Kashmir, Constitution Order 272 had already accomplished this. The new provision reiterated Constitution Order 272 and clarified that the Constitution would apply notwithstanding certain provisions which may have suggested otherwise. Supreme Court of India has upheld the validity of Constitution Order 273. Significantly, Article 370 (as it now stands) provides that the Constitution of India shall apply to the State: without any modifications and exceptions; notwithstanding anything contrary contained in Article 152 or Article 308 or any other article of the Indian Constitution; notwithstanding anything contrary contained in any other provision of the Constitution of Jammu and Kashmir; and notwithstanding anything contrary contained in any law, document, judgement, ordinance, order, by‑law, rule, regulation, notification, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under article 363 or otherwise. The stipulation that the Constitution of India shall apply to the State notwithstanding anything contrary contained in any other provision of the Constitution of Jammu and Kashmir is significant because it clarifies beyond a shadow of doubt that it is the Constitution of India which is the supreme governing document in relation to every aspect of governance in the State., The Constitution of India is a complete code for constitutional governance. It provides for the establishment and scope of powers of the legislature, the executive, and the judiciary at the level of the Union and the States. It delineates the Fundamental Rights and the Directive Principles of State Policy. It regulates aspects of finance and property and provides for Public Service Commissions. The country and all the States are governed in accordance with the provisions of the Constitution. Upon the application of the entire Constitution to the State of Jammu and Kashmir, Jammu and Kashmir too is liable to be governed in the same manner., The Constitution of Jammu and Kashmir, though subordinate to the Constitution of India, provided for many of these aspects of governance. This was necessitated by Article 370 in terms of which it was to apply in parts and in a gradual manner to the State. The gaps left by the non‑application of some parts of the Constitution of India were filled by the Constitution of the State. After the abrogation of Article 370 (as it stood before the issuance of Constitution Orders 272 and 273) and the application of the entirety of the Constitution of India to the State, the Constitution of the State does not fulfil any purpose or serve any function. Hence, the implicit but necessary consequence of the application of the Constitution of India in its entirety to the State of Jammu and Kashmir is that the Constitution of the State is inoperative., Parliament enacted the Reorganisation Act 2019 in exercise of the power under Article 3. The Act received the assent of the President on 9 August 2019. Part II of the Reorganisation Act reorganises the State of Jammu and Kashmir into two Union territories: the Union Territory of Ladakh without a legislature and the Union Territory of Jammu and Kashmir with a legislature. The territories of the former comprise Kargil and Leh whereas the territories of the latter comprise territories other than Kargil and Leh. Section 103 of the Reorganisation Act empowers the President to issue an order removing any difficulties which arise in giving effect to the provisions of the statute. In exercise of this power, the President issued the Jammu and Kashmir Reorganisation (Removal of Difficulties) Second Order 2019 which states that the territory of Leh district comprises of Gilgit, Gilgit Wazarat, Chilas, tribal territory and Leh and Ladakh except the present territory of Kargil., The petitioners challenge to the constitutional validity of the Reorganisation Act is on the following grounds: the Reorganisation Act was enacted without fulfilling the prerequisites in Article 3; and Article 3 does not empower Parliament to extinguish the character of a state in its entirety. In response, the Union of India contended that Supreme Court of India is not the appropriate authority to examine the desirability of the exercise of the power under Article 3 because administrative and other considerations have a bearing on Parliament's decision. The Union of India also submitted that the sufficiency of the material or the circumstances which necessitated the exercise of the power under Article 3 lie beyond the realm of judicial review. Finally, it submitted that Parliament possesses the power to convert a State into two Union territories., The submissions of the petitioners require Supreme Court of India to adjudicate on (a) the scope of the powers of Parliament under Article 3; and (b) whether the procedure contemplated by Article 3 was complied. In the sections below we have highlighted a few aspects which must weigh on Courts while determining the scope of the powers under Article 3., When the Constitution was adopted, the constituent political units in the country consisted of different types of States (albeit with different structures, powers, and relationships with the Union Government) and not of States and Union territories, as we now understand them. At that time, India consisted of Part A, Part B, and Part C States as detailed in the First Schedule to the Constitution. Part A States consisted of former Governor's Provinces (prior to Independence) and some princely states. They were governed by elected legislative bodies as well as a Governor. Part B States consisted largely of the former princely states and were governed by elected legislative bodies and the Rajpramukh. Part C States were formerly the Chief Commissioners Provinces and some princely states which were governed by a Chief Commissioner appointed by the President. Additionally, the Andaman and Nicobar Islands alone found a place in Part D of the First Schedule. A Lieutenant Governor appointed by the Union Government oversaw the administration of this territory., Evidently, the constitutional classification of the constituent units in the country at the time of Independence mirrored their classification by the colonial power. This was not intended to be a permanent feature. Accordingly, Article 3 of the Constitution was intended to subserve an arrangement in place until a reclassification which was suited to the needs of the local populace and which was based on a careful evaluation of administrative, cultural, linguistic, financial, and other relevant considerations rather than on the expediency of the colonial government., The Constituent Assembly was also cognizant that certain princely states were yet to be integrated into the country and that some segments of society demanded the organisation of states on the basis of language. Article 3 therefore empowered Parliament to reorganise the constituent units of the newly‑formed country., Conscious of the imperial basis for the organisation of states and in view of the growing demand for the organisation of states on a linguistic basis, the Union Government appointed the States Reorganisation Commission to gauge public opinion and assess the manner in which constituent political units ought to be rationalised. The Commission was formed to investigate the conditions of the problem, the historical background, the existing situation and the bearing of all important and relevant factors thereon. They were free to consider any proposal relating to such reorganisation. The Government expected that the Commission would, in the first instance, not go into the details, but make recommendations in regard to the broad principles which should govern the solution of this problem and, if they so choose, the broad lines on which particular States should be reorganised, and submit interim reports for the consideration of Government., The Commission submitted its report after undertaking extensive consultations with members of the public from all States. It found that the demarcation of the States at the time was based almost entirely on colonial interests: To the extent, therefore, there was a conscious or deliberate design behind the demarcation of the territories of administrative units, it was grounded in imperial interests or the exigencies of a foreign government and not in the actual needs, wishes or affinities of the people., Based on its analysis of the demarcation of States, the Commission found that the distinction between the States which existed at that time could not be maintained. The Commission recommended that a balanced approach which accounted for all relevant factors (and not solely language or culture) be adopted to reorganise the States; Part A States and Part B States be of an equal status; Part C States be merged with the adjoining States or retained as independent units with temporary control by the Union Government; and overall, the constituent units of the country ought to consist of States and Territories with the latter being centrally administered., The Constitution (Seventh Amendment) Act 1956 amended the First Schedule and modified the categorisation of the constituent units in the country, largely in accordance with the recommendations made by the Commission. It removed the distinction between the States. Currently, the administrative or federal units consist solely of States and Union Territories. The States Reorganisation Act 1956 was enacted in pursuance of this amendment to the Constitution. It provided for the territorial changes and the formation of new States as well as for other matters connected with or incidental to these changes., It is necessary to advert to the principles which animate the Constitution in general and Article 3 in particular and the Constituent Assembly Debates on Statehood., Democracy and federalism are basic features of the Constitution. The term federal is used to indicate the division of powers between the Union and the Central Government and the State Governments. While there are certain unitary characteristics present in the constitutional structure in terms of which the Union Government has overriding powers in some situations, the existence of federal elements in the form of governments envisaged by the Constitution is a cornerstone of the polity. This set‑up has been described as quasi‑federal, asymmetric federalism or cooperative federalism. Supreme Court of India judgments in Bommai, Kuldip Nayar v. Union of India, State (NCT of Delhi) v. Union of India and Swaraj Abhiyan (V) v. Union of India extensively discuss the principles of federalism embodied in the Constitution., The States neither derive their powers from the Union Government nor do they depend upon the Union Government to exercise their powers under the structure of the Constitution. Part V of the Constitution inter alia provides for the structure, functions and powers of the Union Government. Part VI inter alia provides for the structure, functions and powers of the States. The Constituent Assembly Debates reveal that the federal nature of our Constitution was considered to be one of its significant features. Dr. B R Ambedkar observed: dual polity under the proposed Constitution will consist of the Union at the Centre and the States at the periphery each endowed with sovereign powers to be exercised in the field assigned to them respectively by the Constitution. The Indian Constitution proposed in the Draft Constitution is not a league of States nor are the States administrative units or agencies of the Union Government., In response to a remark complaining that the Constitution favoured too strong a Centre, Dr. B R Ambedkar stated in no uncertain terms that the States were not dependent upon the Centre for their legislative or executive authority: A serious complaint is made on the ground that there is too much of centralisation and that the States have been reduced to municipalities. It is clear that this view is not only an exaggeration, but is also founded on a misunderstanding of what exactly the Constitution contrives to do. As to the relation between the Centre and the States, it is necessary to bear in mind the fundamental principle on which it rests. The basic principle of federalism is that the legislative and executive authority is partitioned between the Centre and the States not by any law to be made by the Centre but by the Constitution itself. This is what Constitution does. The States under our Constitution are in no way dependent upon the Centre for their legislative or executive authority. The Centre and the States are co‑equal in this matter. It is difficult to see how such a Constitution can be called centralism., The division of legislative and executive competence between the Union and the federating States and the independence conferred on the federating States in their own sphere furthers representative democracy. The electorate elects their representatives to the State Legislature. The State Government (through the Council of Ministers) is accountable to the Legislative Assembly, which in turn is accountable to the citizenry. In this manner, the existence of the States breathes life into democracy by empowering citizens to participate in governance. This conception of democracy is fortified by Article 1(1), which states: 1. Name and territory of the Union. (1) India, that is Bharat, shall be a Union of States. Article 1(1) indicates that the States are essential and indispensable to the constitutional structure of the country. The Union cannot exist without the existence of the States., In State (NCT of Delhi) v. Union of India, a Constitution Bench of Supreme Court of India described the importance of States in the federal structure in the following terms: The interest of the States inherent in a federal form of Government gains more importance in a democratic form of Government as it is absolutely necessary in a democracy that the will of the people is given effect to. To subject the people of a particular State/region to the governance of the Union, that too, with respect to matters which can be best legislated at the State level goes against the very basic tenet of a democracy. The existence of States is therefore essential to the constitutional project of democracy and federalism. Why, then, does the Constitution envisage Union territories? What purpose do they serve?, Despite the centrality of the States to the Constitution and the structure of governance that it envisages, Union Territories (which are administered by the Union Government) exist within the constitutional scheme. Every State has a Legislative Assembly (and some have Legislative Councils in addition) with a Governor who acts on the aid and advice of the Council of Ministers. In contrast, only some Union territories have a Legislative Assembly. The Union territories are administered by the President acting, to such extent as he thinks fit, through an Administrator. The President also has the power to make regulations for certain Union territories. There are many other differences between these constituent units. In essence, States are governed by their own governments and are directly accountable to the citizenry whereas Union territories are governed by the Union Government. There is no gainsaying that the relationship that the States have with the Union is different from the relationship that the Union Territories have with the Union. Generally, States have a degree of autonomy in comparison to Union Territories. This remains true even if a Union Territory like Puducherry has a legislative assembly. However, there is no homogenous class of Union territories. They each have differing levels of autonomy., The Report of the States Reorganisation Commission formed the basis for the Constitution (Seventh Amendment) Act 1956 by which the constituent units of India were organised into States and Union territories. The report is therefore an authoritative source in the endeavour to understand the reasons for the creation of two categories of constituent units and the reasons for the creation of Union Territories in particular., The report recommended the creation of two categories of constituent units states and territories. States would be the primary constituent units and cover virtually the entire country while the territories would be centrally administered., The report indicated that for the States to enjoy a uniform status, it was necessary that each of them is capable of surviving as a viable administrative unit which has the financial, administrative and technical resources to sustain itself., It stated that each state should be able to establish and maintain institutions to educate and equip its people to carry out the various functions that it would be required to undertake., It recommended the creation of centrally administered territories (or, as we now know them, Union Territories) if, for strategic, security or other compelling reasons, it was not practical to integrate a small territory with an adjoining State., The report recommended that most of the Part C States merge with adjoining States inter alia because: Of the six Part C States with legislatures, only Coorg was in a position to administer itself without assistance from the Centre and the other five were highly dependent on financial assistance from the Centre; the administrative services in the Part C States were inadequate and had anomalies; and Part C States continued to have close economic links with the adjacent areas. In addition, for three Part C States Himachal Pradesh, Kutch, and Tripura it recommended that the Union Government should retain supervisory power for some time to maintain the pace of development., The Commission recommended that three constituent units or areas be retained as territories administered by the Union Government: Delhi; Manipur; Andaman and Nicobar Islands.
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Goa, Daman and Diu were added to the First Schedule as a Union Territory in 1962 as was Puducherry (previously known as Pondicherry). In 1966, Chandigarh was also made a Union territory. A couple of decades later, the State of Goa was formed with the enactment of the Goa, Daman and Diu Reorganisation Act 1987. Daman and Diu continued to be a single Union Territory. It was eventually merged with Dadra and Nagar Haveli. Of all the Union territories in the history of the country, Himachal Pradesh, Manipur, Tripura, Goa, Mizoram and Arunachal Pradesh attained full statehood and Delhi attained significant autonomy with its sui generis status. As each of these territories (except Delhi in view of its status as the National Capital) became viable administrative units, they found a place in the constitutional structure as States. However, other areas continued to remain as Union Territories because they were not considered to be viable administrative units or because of other strategic or security‑based reasons. These Union territories are smaller than those which eventually attained statehood., The relevance of this discussion is elucidated by the observations of one of us (DY Chandrachud, Chief Justice of India) in State (NCT of Delhi) v. Union of India: The words of the Constitution cannot be construed merely by alluding to what a dictionary of the language would explain. While its language is of relevance to the content of its words, the text of the Constitution needs to be understood in the context of the history of the movement for political freedom. Constitutional history embodies events which predate the adoption of the Constitution. Constitutional history also incorporates our experiences in the unfolding of the Constitution over the past sixty‑eight years while confronting complex social and political problems. Words in a constitutional text have linkages with the provisions in which they appear. It is well to remember that each provision is linked to other segments of the document. It is only when they are placed in the wide canvas of constitutional values that a true understanding of the text can emerge., Article 2 of the Constitution provides that Parliament may admit new States into the Union or establish new States: Parliament may by law admit into the Union, or establish, new States on such terms and conditions as it thinks fit. Article 3, as it now stands, provides for formation of new States and alteration of areas, boundaries or names of existing States. Parliament may by law (a) form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State; (b) increase the area of any State; (c) diminish the area of any State; (d) alter the boundaries of any State; (e) alter the name of any State, provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill has been referred by the President to the Legislature of that State for expressing its views within such period as may be specified., Explanation I: In this article, in clauses (a) to (e), State includes a Union territory, but in the proviso, State does not include a Union territory. Explanation II: The power conferred on Parliament by clause (a) includes the power to form a new State or Union territory by uniting a part of any State or Union territory to any other State or Union territory., In exercise of the power under Article 3, Parliament has enacted legislations which reorganised the constituent units of the country at various points in time. It has altered the names of Karnataka (previously Mysore), Tamil Nadu (previously Madras), Uttarakhand (previously Uttaranchal) and Odisha (previously Orissa). The erstwhile State of Bombay was divided into Gujarat and Maharashtra. The State of Nagaland was carved out from the State of Assam. The State of Meghalaya was established, which was previously an autonomous state within the State of Assam. The State of Haryana was carved out of the State of Punjab. The State of Chhattisgarh was carved out of the State of Madhya Pradesh. Sikkim was admitted into the Union of India in 1975 and was granted the status of a full State. Uttarakhand (previously Uttaranchal) was carved out of the State of Uttar Pradesh. Similarly, Jharkhand was carved out of the State of Bihar. Most recently, the State of Telangana was carved out of the State of Andhra Pradesh., It is evident from these examples that Parliament admitted and established new States in India. In the process, some States such as the State of Bombay appear to be extinguished. Some may argue that the alteration of names of the States similarly extinguishes the older State. However, the difference between extinguishing a State and extinguishing the character of a constituent unit as a State is of great consequence. A particular State may cease to exist because it is divided to create two or more new States. Similarly, a particular State may cease to exist because it is divided to create a State (or more than one State) and a Union territory (or more than one Union territory). In both cases, the alteration of the area does not result in it losing its character as a State, with the attendant constitutional implications. A constituent unit can be said to lose its character as a State only if it is converted into a Union territory in full, with no part of it retaining statehood. A change in the boundaries or the name of a State does not result in the change of its character as a State because such a character is derived not from its name or boundaries but from its relationship with the Union Government characterised by autonomy. As discussed in the previous segment, the Constitution confers legislative and executive powers on the States, which play an indispensable role in our democratic set‑up. These characteristics of States are not usually lost when its boundaries, size, or name are changed., States under the Indian Constitution have their own independent constitutional existence. The various organs of governance such as the State Governor, the State Legislature, the High Courts, the Public Service Commissions, the State Election Commissions are all creatures of the Constitution. As Dr. B. R. Ambedkar noted in the Constituent Assembly: As to the relation between the Centre and the States, it is necessary to bear in mind the fundamental principle on which it rests. The basic principle of federalism is that the legislative and executive authority is partitioned between the Centre and the States not by any law to be made by the Centre but by the Constitution itself. This is what the Constitution does. The States under our Constitution are in no way dependent upon the Centre for their legislative or executive authority. The Centre and the States are co‑equal in this matter., Dr. Ambedkar highlighted that power of the States to govern emanated from the Constitution and not Parliament. The exact significance of this understanding of States' powers may be demonstrated by reference to the decision in State of Himachal Pradesh v. Union of India. That case concerned an inter‑State dispute over the sharing of power from a hydroelectric plant between the States of Punjab and Himachal Pradesh. The State of Himachal Pradesh argued that it was entitled to 12 % free power based on its status as the mother‑State of the power project. The State of Punjab sought to repel this argument by contending that Himachal Pradesh's claim of 12 % free power was based on a notion that Himachal Pradesh had some pre‑existing rights over the land and water, which could not be accepted as the territory of States, and potentially the very existence of States owed their existence to Parliamentary legislation under Article 3. If Parliament could unilaterally alter the territory of Himachal, how could Himachal claim any pre‑existing rights over its land and water? Rejecting this argument, the Division Bench held: We find that under the provisions of Article 3 of the Constitution, Parliament has the power to form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State, increase the area of any State, diminish the area of any State, alter the boundaries of any State and alter the name of any State, but under Article 3, Parliament cannot take away the powers of the State executive or the State legislature in respect of matters enumerated in List II of the Seventh Schedule to the Constitution., As Dr. Ambedkar explained to the Constituent Assembly, the division of executive and legislative authority between the Union and the States, the hallmark of a federal constitution, is enshrined in constitutional text. As a result, the Union cannot alter the division of powers between the Union and the States absent a constitutional amendment which would require ratification by a majority of the States. In State of Himachal Pradesh, the Division Bench highlighted an important corollary of this logic. If Parliament cannot alter the division of powers between the Union and all States absent a constitutional amendment, can it logically alter the division of powers between the Union and one State by extinguishing its territory under Article 3? The Division Bench held it cannot., The Solicitor General (for the Union of India) submitted that statehood will be restored to Jammu and Kashmir and that its status as a Union territory is temporary. The Solicitor General submitted that the status of the Union Territory of Ladakh will not be affected by the restoration of statehood to Jammu and Kashmir. In view of the submission made by the Solicitor General that statehood would be restored to Jammu and Kashmir, we do not find it necessary to determine whether the reorganisation of the State of Jammu and Kashmir into two Union Territories of Ladakh and Jammu and Kashmir is permissible under Article 3. The status of Ladakh as a Union Territory is upheld because Article 3(a) read with Explanation I permits forming a Union Territory by separation of a territory from any State. This Supreme Court of India is alive to the security concerns in the territory. Direct elections to the Legislative Assemblies, which is one of the paramount features of representative democracy in India, cannot be put on hold until statehood is restored. We direct that steps shall be taken by the Election Commission of India to conduct elections to the Legislative Assembly of Jammu and Kashmir constituted under Section 14 of the Reorganisation Act by 30 September 2024. Restoration of statehood shall take place at the earliest and as soon as possible., The question of whether Parliament can extinguish the character of statehood by converting a State into one or more Union Territories in exercise of power under Article 3 is left open. In an appropriate case, this Supreme Court of India must construe the scope of powers under Article 3 in light of the consequences highlighted above, the historical context for the creation of federating units, and its impact on the principles of federalism and representative democracy., Parliament’s exercise of power under the first proviso to Article 3 is examined. The Proclamation issued by the President under Article 356 on 19 December 2018 states that the President had received a report from the Governor of the State of Jammu and Kashmir and, after considering the report and other information, the President is satisfied that a situation has arisen in which the government of the State cannot be carried out in accordance with the provisions of the Constitution of India as applicable to the State of Jammu and Kashmir and the Constitution of Jammu and Kashmir. In exercise of the power under Article 356, the President, inter alia, assumed to himself all the functions of the Government of the State and all the powers exercisable by the Governor of Jammu and Kashmir; declared that the powers of the Legislature shall be exercisable by or under the authority of Parliament; and suspended the first and second proviso to Article 3., In the present case, the proviso to Article 3 was suspended by the Proclamation dated 19 December 2018 and the act of Parliament expressed its views in support of the Reorganisation Act. The Union of India has argued that as the views expressed by States under the proviso to Article 3 are non‑binding, there is no substantial constitutional violation that can result in the invalidation of the Reorganisation Act even if the proviso was not strictly complied with., The first proviso to Article 3 stipulates that where the proposal contained in the Bill affects the area, boundaries or name of any of the States, the President must refer the Bill to the Legislature of that State for expressing its views. The President referred the Reorganisation Bill to the Lok Sabha and the Rajya Sabha for their views since Parliament exercised the powers of the Legislature of the State of Jammu and Kashmir in view of the Proclamation issued under Article 356. On 5 August 2019, the Lok Sabha and Rajya Sabha expressed the view in favour of the acceptance of the proposal in the Reorganisation Bill. The resolution reads: That the President of India has referred the Jammu and Kashmir Reorganisation Bill, 2019 to this House under the proviso to article 3 of the Constitution of India for its views as this House is vested with the powers of the State Legislature of Jammu and Kashmir, as per proclamation of the President of India dated 19th December, 2018. This House resolves to express the view to accept the Jammu and Kashmir Reorganisation Bill, 2019., The issue that arises for consideration is whether the procedure which was followed in passing the Reorganisation Bill 2019 is valid. Could Parliament have substituted its own views for the views of the State legislature as required under the proviso to Article 3 in view of the power conferred upon it by the Proclamation issued under Article 356?, Applying the standard laid above to test the exercise of power after a Proclamation under Article 356 is issued, the petitioners must first prove that the exercise of power was mala fide. We have held that the scope of the powers of Parliament under Article 356(1)(b) cannot be restricted to only law‑making powers of the Legislature of the State. Thus, the exercise of power cannot be held mala fide merely because it is a non‑law‑making power or that it furthers an important federal principle., The decision of the five‑Judge Bench of this Supreme Court of India in Babulal Parate v. State of Bombay must be referred to. It was held that the views expressed by the State Legislature under the proviso to Article 3 are not binding on Parliament. In that case, the States Reorganisation Bill 1956 was introduced in the Lok Sabha. The Bill had a proposal for the formation of three separate units namely, the Union Territory of Bombay, the State of Maharashtra including Marathwada and Vidarbha, and the State of Gujarat including Saurashtra and Cutch. The Bill was referred to a Joint Select Committee. Pursuant to the recommendations of the Joint Select Committee, an amended version of the Bill was introduced in both Houses. Both Houses of Parliament passed the Bill. According to the States Reorganisation Act 1956, a new Part A State known as the State of Bombay was formed. The appellant initiated proceedings under Article 226 on the ground that the Legislature of the State of Bombay had no opportunity of expressing its views on the formation of a composite State instead of three separate units as proposed earlier. This Supreme Court of India held that the views of the State Legislature are only recommendatory and that it is not necessary that the views of the concerned State Legislature have to be secured on every occasion that a bill is amended., If the views of the State Legislature were binding on Parliament (which is not the case), there would be scope for debate on whether Parliament in exercise of powers under Article 356(1)(b) could have substituted its views for the views of the Legislative Assembly of the State. However, the views of the Legislature of the State are not binding on Parliament in terms of the first proviso to Article 3. The views of the Legislature of the State under the first proviso to Article 3 are recommendatory to begin with. Thus, Parliament’s exercise of power under the first proviso to Article 3 under the Proclamation was valid and not mala fide., The petitioners have challenged the suspension of the second proviso to Article 3 which was inserted in Article 3 in its application to the State of Jammu and Kashmir by C.O. 48 of 1954. By the second proviso (as it applies to the State of Jammu and Kashmir) a Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of the State cannot be introduced in Parliament without the consent of the legislature of the State., Once this Supreme Court of India has come to the conclusion that C.O. 272 is valid, all the provisions of the Constitution of India apply to the State of Jammu and Kashmir. The exceptions and modifications to the provisions of the Constitution in its application to Jammu and Kashmir ceased to exist. C.O. 272 was issued by the President on 5 August 2019. On the same day, the Reorganisation Bill was sent to the Rajya Sabha and Lok Sabha for securing their views under the first proviso to Article 3 and the Rajya Sabha passed the Reorganisation Act. The next day, the Lok Sabha passed the Reorganisation Act. Thus, when the Reorganisation Bill was introduced on 5 August 2019, the second proviso to Article 3 as it applied to the State of Jammu and Kashmir ceased to exist because of C.O. 272. Thus, the issue of whether the second proviso to Article 3 could have been suspended in exercise of the power under Article 356(1)(c) no longer survives., In view of the above discussion, the following are the conclusions: The State of Jammu and Kashmir does not retain any element of sovereignty after the execution of the Instrument of Accession and the issuance of the Proclamation dated 25 November 1949 by which the Constitution of India was adopted. The State of Jammu and Kashmir does not have internal sovereignty which is distinguishable from the powers and privileges enjoyed by other States in the country. Article 370 was a feature of asymmetric federalism and not sovereignty; The petitioners did not challenge the issuance of the Proclamations under Section 92 of the Jammu and Kashmir Constitution and Article 356 of the Indian Constitution until the special status of Jammu and Kashmir was abrogated. The challenge to the Proclamations does not merit adjudication because the principal challenge is to the actions which were taken after the Proclamation was issued; The exercise of power by the President after the Proclamation under Article 356 is subject to judicial review. The exercise of power by the President must have a reasonable nexus with the object of the Proclamation. The person challenging the exercise of power must prima facie establish that it is a mala fide or extraneous exercise of power. Once a prima facie case is made, the onus shifts to the Union to justify the exercise of such power; The power of Parliament under Article 356(1)(b) to exercise the powers of the Legislature of the State cannot be restricted to law‑making power thereby excluding non‑law‑making power of the Legislature of the State. Such an interpretation would amount to reading in a limitation into the provision contrary to the text of the Article; It can be garnered from the historical context for the inclusion of Article 370 and the placement of Article 370 in Part XXI of the Constitution that it is a temporary provision; The power under Article 370(3) did not cease to exist upon the dissolution of the Constituent Assembly of Jammu and Kashmir. When the Constituent Assembly was dissolved, only the transitional power recognised in the proviso to Article 370(3) which empowered the Constituent Assembly to make its recommendations ceased to exist. It did not affect the power held by the President under Article 370(3); Article 370 cannot be amended by exercise of power under Article 370(1)(d). Recourse must have been taken to the procedure contemplated by Article 370(3) if Article 370 is to cease to operate or is to be amended or modified in its application to the State of Jammu and Kashmir. Paragraph 2 of C.O. 272 by which Article 370 was amended through Article 367 is ultra vires Article 370(1)(d) because it modifies Article 370, in effect, without following the procedure prescribed to modify Article 370. An interpretation clause cannot be used to bypass the procedure laid down for amendment; The exercise of power by the President under Article 370(1)(d) to issue C.O. 272 is not mala fide. The President in exercise of power under Article 370(3) can unilaterally issue a notification that Article 370 ceases to exist. The President did not have to secure the concurrence of the Government of the State or Union Government acting on behalf of the State Government under the second proviso to Article 370(1)(d) while applying all the provisions of the Constitution to Jammu and Kashmir because such an exercise of power has the same effect as an exercise of power under Article 370(3) for which the concurrence or collaboration with the State Government was not required; Paragraph 2 of C.O. 272 issued by the President in exercise of power under Article 370(1)(d) applying all the provisions of the Constitution of India to the State of Jammu and Kashmir is valid. Such an exercise of power is not mala fide merely because all the provisions were applied together without following a piece‑meal approach; The President had the power to issue a notification declaring that Article 370(3) ceases to operate without the recommendation of the Constituent Assembly. The continuous exercise of power under Article 370(1) by the President indicates that the gradual process of constitutional integration was ongoing. The declaration issued by the President under Article 370(3) is a culmination of the process of integration and as such is a valid exercise of power. Thus, C.O. 273 is valid; The Constitution of India is a complete code for constitutional governance. Following the application of the Constitution of India in its entirety to the State of Jammu and Kashmir by C.O. 273, the Constitution of the State of Jammu and Kashmir is inoperative and is declared to have become redundant; The views of the Legislature of the State under the first proviso to Article 3 are recommendatory. Thus, Parliament’s exercise of power under the first proviso to Article 3 under the Proclamation was valid and not mala fide; The Solicitor General stated that the statehood of Jammu and Kashmir will be restored (except for the carving out of the Union Territory of Ladakh). In view of the statement we do not find it necessary to determine whether the reorganisation of the State of Jammu and Kashmir into two Union Territories of Ladakh and Jammu and Kashmir is permissible under Article 3. However, we uphold the validity of the decision to carve out the Union Territory of Ladakh in view of Article 3(a) read with Explanation I which permits forming a Union Territory by separation of a territory from any State; and we direct that steps shall be taken by the Election Commission of India to conduct elections to the Legislative Assembly of Jammu and Kashmir constituted under Section 14 of the Reorganisation Act by 30 September 2024. Restoration of statehood shall take place at the earliest and as soon as possible., The writ petition and special leave petitions are disposed of in the above terms. Pending applications, if any, stand disposed of. [Dr Dhananjaya Y. Chandrachud] [Surya Kant] New Delhi; December 11, 2023., Kashmir (Kashmir) Prelude Instrument of Accession and the Constituent Assembly Debates Constituent Assembly of the State of J&K and Article 370 1989‑1990 onwards: Another troubled time The recent developments The Challenge The relation between the Union and the State of Jammu & Kashmir. The evolution of constitutional relationship between the Union and the State of Jammu & Kashmir prior to the impugned executive actions. Article 370 had assumed permanence in the Constitution of India. The effect of Article 370(3) of the Constitution. The Impugned Executive Orders are not competent to alter the relationship between the State and the Union: C.O. 272 is illegal and mala fide; C.O. 273 is illegal and mala fide; Improper exercise of power under Article 356 of the Constitution while issuing C.O. 272 and C.O. 273. The big question mark of even altering the status of the State to Union Territory. Article 3 of the Constitution does not warrant the power to convey a State into Union Territory. The suspension of proviso to Article 3 was illegal. The Constitutional defense of the respondents. The nature of the Constitutional relationship between the Union and the State of Jammu and Kashmir prior to the impugned Executive actions. No semblance of sovereignty remained with the State of Jammu & Kashmir, as its integration was complete. Article 370, both from the part in which it falls (heading) as well as reading of the transitional provision. Article 370(3) How it works out? The proviso to Article 370(3) became otiose once the State Constituent Assembly dissolved itself. Whether the relationship could be altered by the impugned Executive orders. C.O. 272 is intra vires. C.O. 273 is intra vires. Permissible exercise of power under Article 356 while issuing C.O. 272 and C.O. 273. Whether the alteration from a State to a Union Territory was permissible? Article 3 grants Parliament the power to convert a State into a Union Territory. The suspension of the proviso to Article 3 was permissible. Resolution of Constitutional Dilemma. The Constitutional Relationship between the Union and the State of Jammu and Kashmir prior to the impugned actions. The concept of internal sovereignty after the Instrument of Accession. Article 370 of the Constitution as a temporary provision.
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The effect of Article 370(3) after the dissolution of the Constituent Assembly of the State. Article 370(3) continues to operate. The President can exercise power under sub‑clause (3) without a recommendation from the Jammu and Kashmir Constituent Assembly. The issuance of Commencement Order 272: the power under Article 370(1)(d) read with Article 367 was improperly exercised; concurrence with the Government of the State was not necessary to apply all the provisions of the Constitution of India to the State. Whether the exercise of power under Article 356 was permissible while issuing Commencement Orders 272 and 273: Article 356 can be imposed once the Legislative Assembly has been dissolved; Article 356 permits the President to make irreversible changes; the President retains both legislative and non‑legislative powers after the proclamation of emergency. The extent of powers under Article 3 and the constitutionality of the Reorganisation Act: Parliament has authority to alter or extinguish a State under Article 3; suspension of the first proviso to Article 3 was permissible during President's rule., Legend has it that eons ago the Kashmir valley was a vast mountain lake called Satisar and that the sage Kashyapa created the valley of Kashmir by draining this lake. An analysis of the Nilamat Purana, the oldest scripture of the Aryan Saraswat Brahmins of Kashmir, indicates that the first settlers in Kashmir were the Naga snake‑worshippers and animists. A batch of Aryans, originally settled on the banks of the mighty Vedic River Saraswati, moved to the valley when the Saraswati river dried up about five thousand years ago. Various versions of the origin of the people of the valley include descent from one of the lost tribes of Israel. The valley has a heritage of learning; one of the most respected centres of learning was Sharda Peeth, now in Pakistan‑occupied Kashmir, where education was gender‑neutral and based on excellence., In 326 BC Alexander the Great is said to have invaded the Jammu and Kashmir area. From 206 BC Kashmir was part of the Silk Route connecting China with southern Europe. The valley has witnessed different faiths; it gave passage to Christianity and was a root to Buddhism, from where it spread to Tibet, China and Central Asia. In the eighteenth century Thomas Moore introduced Kashmir to the Western world in his poem Lalla Rookh (1817) with the lines: “Who has not heard of the Vale of Cashmere, With its roses the brightest that earth ever gave, Its temples, and grottos, and fountains as clear As the love‑lighted eyes that hung over their wave?”, Prior to the independence of India the State of Jammu and Kashmir consisted of the Kashmir Valley, Jammu, Ladakh, Baltistan, Gilgit, Hunza and Nagar. It stood on the old Central Asian trade route, and the Kashmir Valley, since ancient times, has been a halting place for caravans travelling between the plains of India and the high reaches of Central Asia. The mountains provide a wall of protection to the valley; Kalhana described Kashmir as unconquerable by force of soldiers. Chinese travelers Hiuen Tsang and Ou‑Kong referred to the difficulty of crossing the mountain passes. To the south of the valley is the area now known as Jammu, home of the Dogras and several other castes and sects, both Hindus and Muslims. People from the Kashmir valley also settled in this region. The Gujjar tribe leads a semi‑nomadic life, moving herds between Jammu and Kashmir depending on the weather., An overwhelming majority of the people in the valley profess Islam, which began its advent in the valley during the fourteenth century, apart from the presence of Kashmiri Pandits and a Sikh population. Both Shia and Sunni sects are present. In the pre‑independence era the state did not have historical boundaries in the same form as other princely states; these disparate territories were brought under a single state only in the nineteenth century. The unifiers were a clan of Dogra Rajputs from Jammu, who conquered Ladakh in the 1830s and acquired the valley of Kashmir from the British in the 1840s for a consideration of Rs 75 lakh, later moving into the Gilgit area by the end of the century., The people of Kashmir share resemblances in dressing style, social customs and ceremonies across followers of the two major faiths. Sacred shrines of both communities are situated close together and fairs at these shrines are often held on the same date with participation of both communities. The state had dual capitals – Srinagar and Jammu – with the Darbar moving from one place to the other for a period of six months. Srinagar, in the valley, stands on the banks of the Vitasta River; its history dates back to the time of Ashoka, who is credited with having founded it during his visit to Kashmir. In view of its numerous canals and Dal Lake, it is aptly called the Venice of the East., Originally the population of Kashmir was primarily Brahmin, but other groups such as Nishads, Khashas, Darads, Bhauttas, Bhikshas, Damaras and Tantrins were also prevalent. This was prior to the advent of Islam in the fourteenth century, when the Zoji‑la Pass acted as a route for successful invasions of Kashmir. In the early fourteenth century the Turk Dulca and Bhautta Rincana made forays. About two centuries later, Mirza Haider Dughlat, with his small Mughal force, successfully entered Kashmir in 1533 AD. Interaction was not restricted to invasions; periods of contact with Roman, Greek and Persian civilizations resulted in a blending of cultures tolerant of different ideas and beliefs. This is reflected in the presence of Naga worship, Brahmanism, Buddhism and Islam. The synthesis of Hindu and Islamic religious thought found its greatest champions in Lalleshwari and Sheikh Nur‑ud‑Din, who are venerated by Hindus and Muslims alike. Sheikh Nur‑ud‑Din Wali, originally known as Nund Rishi, preached a faith of tolerance and inclusivity called Kashmiriyat. The Brahmins, popularly called Kashmiri Pandits, trace their history to more than eleven thousand years ago, beginning with the early origins of the valley. Religious persecution made them leave the valley en masse., Turning back to the political entity of Jammu and Kashmir, the Sultan dynasty established itself and continued its rule till 1586, when Akbar invaded Kashmir and appended it to the Mughal Empire. For the next approximately two hundred years it remained the summer residence of the Mughal emperors. Emperor Jahangir described the valley as “Gar firdaus, bar‑ruee zameen ast, hameen asto, hameen asto, hameen ast” (if there is a paradise on earth, it is this). In 1752 Kashmir passed into the hands of the Pathans, but in 1819 it was conquered by Maharaja Ranjit Singh, the great Sikh ruler, and remained under Sikh administration till 1846. Meanwhile, in the latter half of the eighteenth century Jammu was ruled by a Dogra chief of Rajput descent, Ranjit Deo. A succession dispute gave the Sikhs an opportunity to turn Jammu and its neighbouring hill tracts into a dependency., Having conquered Jammu, Maharaja Ranjit Singh installed Gulab Singh, a great‑grand‑nephew of Ranjit Deo, as the vassal ruler of Jammu in 1822. The principality of Jammu was conferred on Gulab Singh with the hereditary title of Raja in 1823. After the death of Ranjit Singh in 1839, the Sikh wars followed and after the first Sikh war (1846) Gulab Singh acted as a mediator between the British and the Lahore Darbar. Political expediency made Gulab Singh the independent ruler of Jammu and Kashmir, with the Treaty of Amritsar inked on 16 March 1846. This treaty marks the commencement of the history of Jammu and Kashmir as a political entity., Maharaja Gulab Singh abdicated in favour of Maharaja Ranbir Singh, who was succeeded by Maharaja Pratap Singh. Maharaja (Sir) Hari Singh became the ruler of Jammu and Kashmir in 1925 and was the ruler at the time of transfer of power in 1947. Maharaja Hari Singh’s tenure saw growing opposition from the Muslim population in the valley, who wanted a greater say in the administration. This saw the emergence of a local popular leader, Sheikh Abdullah, known as the Lion of Kashmir. In 1932 the All Jammu and Kashmir Muslim Conference was formed, which six years later was transformed into the National Conference, having representation from all communities., A negotiation between the rulers and the ruled, with a more democratic process, led to the promulgation of the Jammu and Kashmir Constitution Act, 1939 on 7 September 1939, with sovereignty and supremacy over all legislative, executive and judicial functions retained by the Maharaja while empowering the Praja Sabha to make laws for the entire state. Executive functions under the Act were vested in a Council consisting of the Prime Minister and other Ministers appointed by the Maharaja. The Act also provided for the establishment of a High Court, which had already been established in 1928, to be a court of record with jurisdiction to adjudicate original civil suits of value of ten thousand rupees or more, and also civil, criminal and revenue appeals., The Second World War and the independence movement made independence inevitable. The Cabinet Mission Plan of 16 May 1946 envisaged a Union of India where the Union would have responsibility over defence, foreign affairs and communication and the States would retain jurisdiction over all other subjects not ceded to the Union. The Constituent Assembly of India on 22 January 1947 unanimously adopted the Objective Resolution declaring the Assembly’s firm resolve to proclaim India as an independent sovereign republic. The princely states that had joined the Union of India were to possess and retain the status of autonomous units, together with residuary powers, except for powers vested in the Union., On 3 June 1947 the Mountbatten Plan envisaged a partition of India with accession of Indian states to either dominion. The deadline of 15 August 1947 was set for transferring power to an independent India. The State of Jammu and Kashmir had the largest area in India with a predominantly Muslim population ruled by a Hindu Maharaja. The political acumen of Sardar Vallabhbhai Patel, assisted by V. P. Menon, saw over five hundred autonomous chiefdoms being dissolved into fourteen new administrative units of India, a provision of the Cabinet Mission Plan. However, Junagadh, Jammu and Kashmir and Hyderabad proved to be challenges, as by 15 August 1947 none of these three had acceded to India., Kashmir was a peculiar situation. Unlike the other two, it was on the border of India and Pakistan. Maharaja Hari Singh dreamed of Jammu and Kashmir as an independent state not part of either dominion. He offered to sign a standstill agreement with both countries to allow free movement of people and goods across the borders. Pakistan signed, but India was waiting. The local Muslim leadership of the valley was not in favour of the two‑nation theory and the presumed inevitability of joining Pakistan. Eventually a deliberate decision was taken to join India and negotiate autonomy within the asymmetrical federal model. The ideological symmetry of the National Conference and the Indian National Congress was an important factor., Pakistan was not willing to wait. On 22 October 1947, with the onset of winter, several Pathan tribesmen, led unofficially by the Pakistani army, invaded Kashmir and rapidly advanced towards Srinagar. The Maharaja’s army proved no match for the invading forces. The Maharaja appealed to India for military assistance, but India awaited a formal accession. On 26 October 1947 the Maharaja acceded to India and agreed to install Sheikh Abdullah as the head of the state administration. Lord Mountbatten accepted the accession, with the caveat that a plebiscite would be held to ratify the accession. Indian troops moved in and secured the valley., The Instrument of Accession of Jammu and Kashmir reads as follows: “WHEREAS the Indian Independence Act, 1947, provides that as from the fifteenth day of August 1947 there shall be set up an independent Dominion known as INDIA, and that the Government of India Act, 1935, shall, with such omissions, additions, adaptations and modifications as the Governor‑General may by order specify, be applicable to the Dominion of India; AND WHEREAS the Government of India Act, 1935, as so adapted by the Governor‑General, provides that an Indian State may accede to the Dominion of India by an Instrument of Accession executed by the Ruler thereof: I, Shri Hari Singh, Maharajadhiraj of Jammu and Kashmir, in the exercise of my sovereignty over my State, do hereby execute this Instrument of Accession and declare that I accede to the Dominion of India with the intent that the Governor‑General of India, the Dominion Legislature, the Federal Court and any other Dominion authority shall, by virtue of this Instrument, exercise in relation to the State such functions as may be vested in them by the Government of India Act, 1935, as in force on 15 August 1947. I assume the obligation of ensuring that due effect is given to the provisions of the Act within this State. I accept the matters specified in the Schedule as those with respect to which the Dominion Legislature may make laws for this State. I declare that I accede to the Dominion of India on the assurance that any agreement made between the Governor‑General and the Ruler of this State regarding the exercise of functions shall form part of this Instrument. The terms of this Instrument shall not be varied by any amendment of the Act or of the Indian Independence Act, 1947 unless such amendment is accepted by me by a supplementary Instrument. Nothing in this Instrument shall empower the Dominion Legislature to make any law for this State authorising compulsory acquisition of land, but I undertake that should the Dominion deem it necessary to acquire any land, I will at their request acquire the land at their expense or, if the land belongs to me, transfer it on agreed terms or, failing agreement, as determined by an arbitrator appointed by the Chief Justice of India. Nothing in this Instrument shall be deemed to commit me to acceptance of any future constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future constitution. Nothing in this Instrument affects the continuance of my sovereignty over this State, or, save as provided by this Instrument, the exercise of any powers, authority and rights now enjoyed by me as Ruler of this State or the validity of any law presently in force. I execute this Instrument on behalf of this State and any reference to me or to the Ruler shall include my heirs and successors.” The Instrument was signed on 26 October 1947 by Maharaja Hari Singh and accepted on 27 October 1947 by Lord Mountbatten, Governor‑General of India., The subjects transferred to the Union of India under the Instrument of Accession were: Defence – the naval, military and air forces of the Dominion and any other armed forces raised or maintained by an acceding State, naval, military and air force works, administration of cantonment areas, arms, firearms, ammunition and explosives. External Affairs – external affairs, implementation of treaties and agreements with other countries, extradition, admission into and emigration from India, regulation of movement of non‑British subjects, pilgrimages, naturalisation. Communications – posts and telegraphs, telephones, wireless, broadcasting, federal railways and regulation of all railways, maritime shipping and navigation, port quarantine, major ports and port authorities, aircraft and air navigation, aerodromes, lighthouses, carriage of passengers and goods by sea or air, extension of police jurisdiction to railway areas. Ancillary – elections to the Dominion Legislature, offences against laws relating to the aforesaid matters, inquiries and statistics, jurisdiction and powers of courts with respect to the aforesaid matters, subject to the consent of the Ruler of the acceding State., Lord Mountbatten wrote to Maharaja Hari Singh on 27 October 1947: “My dear Maharajah Sahib, Your Highness’s letter dated 26 October has been delivered to me by Mister V. P. Menon. In the special circumstances mentioned by Your Highness, my Government has decided to accept the accession of Kashmir State to the Dominion of India. Consistently with our policy that, in the case of any State where the issue of accession has been disputed, the question of accession should be decided in accordance with the wishes of the people of the State, it is our wish that, as soon as law and order have been restored in Kashmir and her soil cleared of the invader, the question of the State’s accession should be settled by a reference to the people. Meanwhile, in response to your Highness’s appeal for military aid, action has been taken today to send troops of the Indian Army to Kashmir to help your own forces to defend your territory and to protect the lives, property and honour of your people. My Government and I note with satisfaction that your Highness has decided to invite Sheikh Abdullah to form an Interim Government to work with your Prime Minister. Yours sincerely, Lord Mountbatten of Burma.”, The first draft of the Indian Constitution was handed over by Doctor B. R. Ambedkar, Chairman of the Drafting Committee, to the Constituent Assembly President Doctor Rajendra Prasad on 21 February 1948. There was no equivalent of Article 370 in that draft Constitution. During this period the Jammu and Kashmir dispute between India and Pakistan was being discussed in the Constituent Assembly. The insertion of Article 306‑A (the equivalent of Article 370) took place during the Constituent Assembly debates and was introduced on 17 October 1949. Article 306‑A was drafted by Gopalaswami Ayyangar in close consultation with Sheikh Abdullah; the content resulted from negotiations between the Centre and the Government of Jammu and Kashmir from May to October 1949. The Constituent Assembly debates refer to the peculiar position of Jammu and Kashmir as enunciated by Shri N. Gopalaswami Ayyangar. An interim system was to be established through Article 306‑A until a Constituent Assembly for the State of Jammu and Kashmir came into being. Article 306‑A reads: “Notwithstanding anything contained in this Constitution, the provisions of article 211A of this Constitution shall not apply in relation to the State of Jammu and Kashmir.”
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The power of Parliament to make laws for the State shall be limited to those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India. These are the matters with respect to which the Dominion Legislature may make laws for the State. (Reference: A.G. Noorani, The Kashmir Dispute 1947-2012, vol. 2 (Tulika Books 2013) 77-80; A.G. Noorani, Article 370: A Constitutional History of Jammu and Kashmir (Oxford University Press, India 2014) 50-78; Iqbal Chand Malhotra & Maroof Raza, Kashmir's Untold Story (Bloomsbury India 2019) 98.) Such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify. Explanation: For the purposes of this article, the Government of the State means the person for the time being recognised by the Union as the Maharaja of Jammu and Kashmir, acting on the advice of the Council of Ministers, for the time being in office, under the Maharaja's Proclamation dated fifth day of March 1948., The provisions of Article I of this Constitution shall apply in relation to the State; such other provisions of this Constitution and subject to such exceptions and modifications shall apply in relation to the State as the President may by order specify, provided that no such order which relates to the matters specified in the Instrument of Accession of the State shall be issued except in consultation with the Government of the State, and no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government., If the concurrence of the Government of the State referred to in sub‑clause (b)(ii) or in the second proviso to sub‑clause (d) of clause (1) was given before the Constituent Assembly for the purpose of framing the Constitution of the State was convened, it shall be placed before such Assembly for such decision as it may take thereon., Notwithstanding anything in the preceding clauses of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify, provided that the recommendation of the Constituent Assembly of the State shall be necessary before the President issues such a notification., The legislative authority of the Parliament over the State of Jammu and Kashmir, referred to in the second portion of that Article (Article 306‑A), was stated to be governed primarily by the Instrument of Accession. It was further stated that since Jammu and Kashmir was one of the States mentioned in Part III of the First Schedule (detailing the States and territories of India at that point), Article 1 was to automatically apply. Shri Ayyangar stated that other provisions in the Constitution would apply to Jammu and Kashmir with such exceptions and modifications as may be decided when the President issues an Order to that effect. With respect to matters mentioned in the Instrument of Accession, the issuance of such an Order would require consultation with the Government of the State. For other matters, concurrence of the Government would be required. Shri Ayyangar then also turned to Clause (2) to canvass that it relates particularly to those matters which are not mentioned in the Instrument of Accession and any addition with respect to such matters would be made with the consent of the Constituent Assembly which may be called for the purposes of framing the Constitution of the State of Jammu and Kashmir. Article 211A (Article 238 of the Constitution of India, repealed on 1 November 1956) was not to apply to the State of Jammu and Kashmir, but that was said to not be a permanent feature of the Constitution of the State. So, when the Constituent Assembly of the State would meet and take a decision on its Constitution the range of its federal jurisdiction, the President, may, on the recommendation of the Constituent Assembly, issue an order stating that Article 306‑A shall cease to be operative, or shall be operative only subject to such exceptions and modifications as may be specified by him. There were undoubtedly dissenting views on the introduction of Article 306‑A (including by Dr. B. R. Ambedkar on its very inclusion). But the fact remains that, ultimately, it was proposed as a part of the Constitution as Article 370, and the Constitution was adopted by the people of this country with that provision., On 9 June 1949, Maharaja Hari Singh, who was taking a temporary leave of absence, issued a proclamation entrusting Yuvraj Karan Singh with all his powers and functions in regard to the State and Government of Jammu and Kashmir. On 25 November 1949, Yuvraj Karan Singh, as regent, issued a proclamation accepting the new Constitution of India. A proclamation was issued on 1 May 1951 by Yuvraj Karan Singh directing the establishment of an elected Constituent Assembly to draft a Constitution for the State of Jammu and Kashmir. In August 1951, elections were conducted for the Constituent Assembly. The only effective opposition group to the National Conference, the Praja Parishad, in Jammu, boycotted these elections. This boycott arose out of the rejection of the candidature of all 27 Praja Parishad members for election to the Constituent Assembly. As a result, 72 of the 75 members were elected unopposed on the National Conference ticket to the Constituent Assembly., In the meantime, in exercise of powers under Article 370(1) of the Constitution of India, and following consultation with the Government of Jammu and Kashmir, the President issued the Constitution (Application to Jammu and Kashmir) Order, 1950 (hereinafter referred to as Constitution (Application to Jammu and Kashmir) Order 10) dated 26 January 1950, identifying a Schedule of those subjects which corresponded to the Instrument of Accession and regarding which, alone, the Parliament had law‑making power for the State of Jammu and Kashmir, in terms of Article 370(1)(b)(i). Further, Order 10 clarified that along with Articles 1 and 370 of the Constitution of India, only those constitutional provisions would apply to the State of Jammu and Kashmir as identified in the Second Schedule of the said Order, subject to the specified exceptions and modifications., On 10 June 1952, an Interim Report was submitted by the Basic Principles Committee, which had been appointed on 7 November 1951, for evolving basic principles for the framing of the Constitution of Jammu and Kashmir. This Report recommended the termination of the institution of hereditary rulership and the provision for an elected head of State, which was eventually accepted by the Constituent Assembly of Jammu and Kashmir. The President of India, exercising his powers under Article 370(3), and upon the recommendation of the Constituent Assembly of the State of Jammu and Kashmir, issued the Declaration under Article 370(3) of the Constitution (hereinafter referred to as Constitution (Application to Jammu and Kashmir) Order 44) effective from 17 November 1952, to include an explanation that the phrase 'Government of the State' meant the Sadar‑i‑Riyasat of Jammu and Kashmir, acting on the aid and advice of the Council of Ministers of the State for the time being in office. Yuvraj Karan Singh became the first elected Sadar‑i‑Riyasat., The Delhi Agreement was finally entered into in July 1952, between the Government of India and the Government of Jammu and Kashmir, which provided that the residuary powers of the legislature vested in the Parliament with respect to the other States would vest in the State itself for the State of Jammu and Kashmir. A statement was made by Sheikh Abdullah in 1952 to the effect that while the accession of the State of Jammu and Kashmir to India was complete in fact and in law, to the extent of the subjects enumerated in the Instrument of Accession, the autonomy of the State with regard to all other subjects was to be preserved. Contrary to the other States, the residuary powers vested in the State of Jammu and Kashmir itself., This period witnessed opposition to the provisions of the Delhi Agreement, inter alia pertaining to the limitations and restrictions placed on the applicability of the Constitution of India with respect to fundamental rights, emergency powers exercisable by the President of India and the jurisdiction of the Supreme Court of India. This opposition was acute in the Jammu region and was bolstered by a nationalist call for the abolition of Article 370 of the Constitution of India, led by the erstwhile Bharatiya Jana Sangh under the aegis of Dr. Shyama Prasad Mukherjee and the Praja Parishad., The political relationship between the Jammu and Kashmir Government, led by Sheikh Abdullah, and the Central Government, led by Pandit Jawaharlal Nehru, deteriorated to a point where it was perceived that Sheikh Abdullah was leaning towards separation of the State, and by the middle of July 1953, he publicly demanded that Kashmir should become independent. Sheikh Abdullah was consequently dismissed as the Prime Minister and a new Government headed by Bakshi Ghulam Mohammed was put in place, with Sheikh Abdullah placed under arrest. He was finally released only in April 1964. The President issued the Constitution (Application to Jammu and Kashmir) Order, 1954 on 14 May 1954 (hereinafter referred to as Constitution (Application to Jammu and Kashmir) Order 48) with the concurrence of the Government of Jammu and Kashmir, superseding Order 10. Paragraph 2 of this Order sets out the provisions of the Constitution which, in addition to Articles 1 and 370, would be applicable to the State of Jammu and Kashmir, subject to the exceptions and modifications specified. One notable specification introduced was a second proviso to Article 3 of the Constitution of India, as applied to the State of Jammu and Kashmir, which reads: 'Provided further that no Bill providing for increasing or diminishing the area of the State of Jammu and Kashmir or altering the name or boundary of that State shall be introduced in Parliament without the consent of the Legislature of that State.', The Constituent Assembly of Jammu and Kashmir approved and adopted the Constitution of Jammu and Kashmir on 17 November 1956, and the said Constitution came into force on 26 January 1957. In terms of the Preamble of this Constitution: 'Kashmir, having solemnly resolved, in pursuance of the accession of this State to India which took place on the twenty‑sixth day of October 1947, to further define the existing relationship of the State with the Union of India as an integral part thereof, and to secure to ourselves justice, social, economic and political liberty of thought, expression, belief, faith and worship; equality of status and of opportunity; and to promote among us all fraternity assuring the dignity of the individual and the unity of the Nation.', Some of the relevant sections of the Jammu and Kashmir Constitution are reproduced herein: Definitions: (1) In this Constitution, unless the context otherwise requires, 'Constitution of India' means the Constitution of India as applicable in relation to this State. Relationship of the State with the Union of India: The State of Jammu and Kashmir is and shall be an integral part of the Union of India. Territory of the State: The territory of the State shall comprise all the territories which on the fifteenth day of August 1947 were under the sovereignty or suzerainty of the Ruler of the State. Extent of executive and legislative power of the State: The executive and legislative power of the State extends to all matters except those with respect to which Parliament has power to make laws for the State under the provisions of the Constitution of India. Council of Ministers to aid and advise the Governor: (1) There shall be a council of Ministers with the Prime Minister at the head to aid and advise the Sadar‑i‑Riyasat in the exercise of his functions. (2) All functions of the Sadar‑i‑Riyasat except those under sections 36, 38 and 92 shall be exercised by him only on the advice of the Council of Ministers. (3) The question whether any, and if so what, advice was tendered by Ministers to the Sadar‑i‑Riyasat shall not be inquired into in any court. Session of the Legislature, prorogation and dissolution: (1) The Sadar‑i‑Riyasat shall from time to time summon each House of the Legislature to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session. (2) The Sadar‑i‑Riyasat may from time to time (a) prorogue the Houses or either House (b) dissolve the Legislative Assembly. Provisions in case of failure of constitutional machinery in the State: (1) If at any time the Governor is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, the Governor may by Proclamation (a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by anybody or authority in the State; (b) make such incidental and consequential provisions as appear to the Governor to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provision of this Constitution relating to anybody or authority in the State, provided that nothing in this section shall authorise the Governor to assume any of the powers vested in or exercisable by the High Court or to suspend any provision relating to the High Court. (2) Any such Proclamation may be revoked or varied by a subsequent Proclamation. (3) Any such Proclamation, whether varied under sub‑section (2) or not, shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate on the expiration of six months from the date on which it was first issued. (4) If the Governor by a Proclamation under this section assumes any of the powers of the Legislature to make laws, any law made by him in the exercise of that power shall, subject to the terms thereof, continue to have effect until two years have elapsed from the date on which the proclamation ceases to have effect, unless sooner repealed or re‑enacted by an Act of the Legislature, and any reference in this Constitution to any Acts of or laws made by the Legislature shall be construed as including a reference to such law. (5) No Proclamation under sub‑section (1) shall be issued except with the concurrence of the President of India. (6) Every Proclamation under this section shall, except where it is a Proclamation revoking a previous Proclamation, be laid before each house of the Legislature as soon as it is convened. Amendment of the Constitution: An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in the Legislative Assembly and when the Bill is passed in each House by a majority of not less than two‑thirds of the total membership of that House, it shall be presented to the Governor for his assent and, upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill. Provided that a Bill providing for the abolition of the Legislative Council may be introduced in the Legislative Assembly and passed by it by a majority of the total membership of the Assembly and by a majority of not less than two‑thirds of the members of the Assembly present and voting. Provided further that no Bill or amendment seeking to make any change in (a) this section; or (b) the provisions of Sections 3 and 5; or (c) the provisions of the Constitution of India as applicable in relation to the State shall be introduced or moved in either House of the Legislature., The Constitution (Application to Jammu and Kashmir) Third Amendment Order, 1964 (hereinafter referred to as Constitution (Application to Jammu and Kashmir) Order 71) dated 21 November 1964, modified the Constitution of India as applicable to the State of Jammu and Kashmir, and made Article 356 applicable to the State, with the modification that the expression 'Constitution' included the Constitution of Jammu and Kashmir. The Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, was passed on 10 April 1965, replacing the expressions Sadar‑i‑Riyasat and the Prime Minister in the State Constitution with the Governor and the Chief Minister respectively. Simultaneously, the Constitution (Application to Jammu and Kashmir) Second Amendment Order, 1965 (hereinafter referred to as Constitution (Application to Jammu and Kashmir) Order 74) was issued by the President of India in concurrence with the Government of the State of Jammu and Kashmir, under Article 370(1). It inter alia amended Order 48 to substitute Article 367(b) to reflect the nomenclature change of Sadar‑i‑Riyasat to Governor., Political negotiations and developments saw the Kashmir Accord, 1975 being entered into between the Government of India and the Government of Jammu and Kashmir, inter alia emphasizing that the relationship between the two would be governed by Article 370 of the Indian Constitution (as per Clause (1) of the Kashmir Accord). Clause (2) of the Accord reiterated that the residuary powers would remain with the State. With this, came the rehabilitation and re‑establishment of Sheikh Abdullah as the Chief Minister of Jammu and Kashmir, with the then Chief Minister Syed Mir Qasim stepping down. This was with the support of the Congress Party, which had a majority in the Jammu and Kashmir State Assembly, on the understanding that fresh elections would be held soon., The political stability, however, did not last long with the imposition of the 1975 Emergency. When the Congress Party lost the 1977 Lok Sabha elections, support was withdrawn from Jammu and Kashmir. This led to the fall of Sheikh Abdullah's Government in March 1977 and the imposition of Governor's Rule. However, Sheikh Abdullah's National Conference came back into power in the 1977 state elections., The 1980s saw some troubled times culminating in the 1987 elections, which saw allegations and counter‑allegations. There was a growth of fundamentalism fueled from across the border. The 1971 creation of Bangladesh was not forgotten. Unemployed and frustrated youth were trained as militia and were sent back into Kashmir to create chaos. It was a major change for people who, irrespective of faith, were known for peace and tolerance. The Kashmiri Shaivism and Islamic Sufism were taken over by such militant tendencies. Prior to this, what Sir Walter Lawrence wrote about the absence of crime against persons in Kashmir had held good. There was a mass exodus of the Kashmiri Pandit community, threatened for their life and property, changing the very cultural ethos of Kashmir. There has been little turn‑back despite three decades on this issue. It was a proxy war on the territory of India with active support from across the border., In order to curtail the activities of terrorists, either from across the border or indigenous, armed forces and paramilitary forces were brought in. The kidnapping of the daughter of the then Home Minister Mufti Mohammad Sayeed, and her subsequent release in exchange for terrorists detained, lit the last match, which produced such unprecedented fire that it engulfed the whole Valley. The bottom line is that today's generation aged 35 years or younger have not seen the cultural milieu of different communities, which formed the very basis of the society in Kashmir., The re‑establishment of democracy was sought to be affirmed by the elections held in 1996. There have been constant endeavours thereafter to find a peaceful solution to the problem of Kashmir, with the former Prime Minister P. V. Narasimha Rao stating that the sky is the limit for autonomy of the State and Shri Atal Bihari Vajpayee raising the slogan of Insaniyat, Jamhuriyat, Kashmiriyat (i.e., Insaniyat: Humanism; Jamhuriyat: Democracy; Kashmiriyat: Inclusive culture of Kashmir, with amity between Hindus and Muslims)., The trigger for this batch of petitions is the enactments by the Parliament in August 2019. On account of the coalition Government of the Bharatiya Janata Party (BJP) and the Peoples Democratic Party (PDP) collapsing, Governor's Rule was imposed on 20 June 2018, under Section 92 of the Constitution of Jammu and Kashmir, as the constitutional machinery in the State had failed and thus all powers and functions of the Government of the State were conferred on the Governor. On 21 November 2018, the Governor, under Section 53(2)(b) of the Constitution of Jammu and Kashmir, dissolved the Legislative Assembly of the State. This was just prior to the expiry of the proclamation of Governor's Rule, at the end of the six‑month period, on 19 December 2018. A resolution approving the proclamation of President's Rule issued under Article 356 of the Constitution of India, by the President of India on 19 December 2018, was passed in the Lok Sabha and the Rajya Sabha. As per this proclamation (GSR 1223(E)), the President assumed all the functions of the Government of the State as also all the powers exercisable by the Governor. All powers of the Legislature of the State were to be exercised by the Parliament. Further, the first and second provisos to Article 3 of the Constitution of India as applicable to the State of Jammu and Kashmir, insofar as they related to the reference by the President to the Legislature of the State, came to be suspended. By way of GSR 1224(E), issued on the same date, the powers assumed by the President under GSR 1223(E) were held to also be exercisable by the Governor of the State. The President's Rule was then extended for a further period of six months, with effect from 3 July 2019, as the State Assembly elections had not been held in the meantime., The State of Jammu and Kashmir issued a security advisory on 2 August 2019, advising all Amarnath yatris to stop their yatra midway and return in view of certain intelligence inputs of terror threats., On 5 August 2019, the President of India issued the impugned Order titled the Constitution (Application to Jammu and Kashmir) Order, 2019 (hereinafter referred to as Constitution (Application to Jammu and Kashmir) Order 272), under Article 370(1) of the Constitution of India with the concurrence of the Government of the State of Jammu and Kashmir (through the Governor, as the powers of the Government of the State were vested in the Governor at that time). Article 367(4) was inserted in the Constitution of India in that process, and Article 367(4)(d) effectively amended sub‑clause (3) of Article 370 of the Constitution of India, by replacing the expression 'Constituent Assembly of the State' with 'Legislative Assembly of the State'. This happened at approximately 11:00 a.m., At 11:15 a.m., two statutory resolutions, viz., a Statutory Resolution regarding cessation of all clauses of Article 370 except clause (1), and a Statutory Resolution regarding the Jammu and Kashmir Reorganisation Bill, 2019, were introduced in the Rajya Sabha. The Reorganisation Bill provided for reorganising the existing State of Jammu and Kashmir into two Union Territories, one of Jammu and Kashmir and the other of Ladakh, comprising territories of the erstwhile State of Jammu and Kashmir, namely Kargil and Leh districts. The Bill further clarified that there was to be a Legislative Assembly for the Union Territory of Jammu and Kashmir. At 5:30 p.m., the Statutory Resolution in respect of the Jammu and Kashmir Reorganisation Bill, 2019 was passed by the Lok Sabha by way of a voice vote. It may be noted that pursuant to the Presidential Proclamation dated 19 December 2018, Parliament was exercising the powers of the State Legislative Assembly in its absence., Soon thereafter, the Resolution regarding cessation of all clauses of Article 370, except clause (1), and the Statutory Resolution regarding the reorganisation of the State of Jammu and Kashmir was passed by the Rajya Sabha, and on the next day by the Lok Sabha. These Resolutions were passed by a two‑thirds majority of the members present and voting in both Houses., On 6 August 2019, the President issued a Declaration under Article 370(3) of the Constitution (hereinafter referred to as Constitution (Application to Jammu and Kashmir) Order 273), as amended by Order 272, declaring that Article 370 would cease to apply with effect from 6 August 2019. It is the case of the petitioners that, effectively, this endeavour emasculated Article 370 without formally abolishing it using the route of a constitutional amendment., On 9 August 2019, upon receiving the assent of the President of India, in exercise of powers under Section 2(a) of the Jammu and Kashmir Reorganisation Act, 2019 (hereinafter referred to as the said Act), the respondent, through the Ministry of Home Affairs, issued a notification bearing number Statutory Order 2889 (E), for provisions of the said Act to come into force with effect from 31 October 2019., This resulted in the batch of petitions. On 31 October 2019, the two Union Territories were carved out and President's Rule was revoked. A clutch of writ petitions have been filed in the present case. The oral submissions were led by Mr. Kapil Sibal, learned senior counsel, on behalf of Mohd. Akbar Lone and Hasnain Masoodi. The submissions challenge: (i) Paragraph (c)(ii) of the Proclamation of President's Rule in the State of Jammu and Kashmir vide GSR 1223(E) dated 19 December 2018, and extended for a further period with effect from 3 July 2019; (ii) the concurrence given by respondent No.2 State enabling the President of India to issue the Constitution (Application to Jammu and Kashmir) Order, 2019, numbered Order 272 dated 5 August 2019; (iii) the Constitution (Application to Jammu and Kashmir) Order, 2019 numbered Order 272 dated 5 August 2019; (iv) the Declaration under Article 370(3) of the Constitution numbered Order 273 dated 6 August 2019; (v) the Jammu and Kashmir Reorganisation Act, 2019 (Act No.34 of 2019) which received the assent of the President on 9 August 2019., The oral submissions were elaborate, relying on voluminous documents, reports, views, texts and such. The counsels endeavoured to divide the submissions amongst themselves but due to their nature there was considerable overlap. Therefore, it was thought expedient to deal with the submissions under different heads rather than counsel‑wise, to make the judgment crisper and focus on the areas of contention between the parties. Thus, the discussion., The relation between the Union and the State of Jammu and Kashmir.
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The evolution of the constitutional relationship between the Union of India and the State of Jammu and Kashmir prior to the impugned executive actions is examined. Emphasis was laid on the assurances given to the Princely State of Jammu and Kashmir before its accession to the Indian Union and the consequent constitutional guarantees that emerged in the Constitution of India, notably Article 370. The impugned executive action was alleged to breach those assurances and the constitutional scheme that evolved thereafter. The counsel urged several aspects of this claim., Article 370(1) is described as sui generis because it opened with a non obstante clause. The State of Jammu and Kashmir was excluded from Article 238, which limits the law‑making power of Parliament, and there was no democratic institution in the State at the time of accession. A final decision on the nature of federal relations crystallised when a democratic framework was put into existence and agreed upon by the Constituent Assembly. This decision was presented as a distinct arrangement from other States that had merged into the Indian Union. Divergent views were noted: Mister Zafar Shah argued that the Constituent Assembly alone should determine the relationship, whereas Mister Kapil Sibal, learned Senior Counsel, suggested that other aspects could be relevant, though not germane in the present circumstances., The text of Article 370 reflects the level of cooperation between the Union and the State Government. The endeavour was to accommodate the views of Jammu and Kashmir to facilitate accession. Accordingly, the scheme of accession proceeded on the basis of consultation, concurrence and recommendation, the last being the narrowest and most exceptional., A great deal of reliance was placed on the statements of Doctor Gopalaswami Ayyangar in the Constituent Assembly debates conducted on 17 October 1949 concerning Article 370, emphasising that the very existence and structure of Article 370 were necessitated by the peculiar conditions prevailing in the State at that time. The ultimate fate of Article 370 and whether it could be abrogated were left to the Jammu and Kashmir Constituent Assembly, which reflected the will of the people. This theme was common to the submissions of Mister Sibal, Mister Zafar Shah and Mister Dushyant Dave., Article 370 is animated by a spirit of bilateralism. The Presidential Orders, particularly Constitutional Order 48, provided for co‑extensive law‑making powers between the Legislative Assembly and Parliament. Article 246 was curtailed in its application to Jammu and Kashmir, while Section 5 of the Jammu and Kashmir Constitution extended the Assembly’s power to all matters except those where Parliament had authority. Mister Gopal Subramaniam contended that Parliament and the State Assembly communicated through Article 370, which was the fulcrum of the governing relationship., Mister Rajiv Dhawan, senior counsel, argued that different provisions in the Constitution deal with the federal structure and that the existence of Article 370 is a facet of India’s multi‑symmetrical federal structure. The Constitution provides varying levels of autonomy to different federal units to address unique historical contingencies. He relied on the observations of the Supreme Court of India in R.C. Poudyal v. Union of India to advance the argument that the Court had favourably treated such contingencies as relevant aids to the legal interpretation of the constitutional relationship., Article 370 had assumed permanence in the Constitution of India. The Constituent Assembly of Jammu and Kashmir debated the relationship for several years before deciding not to recommend the pathway to statehood offered via Article 370(3). Consequently, the special relationship between the State and the Union acquired a permanent status, subject only to changes in its legislative power and application under Article 370(1). The observations made in Sampat Prakash v. State of Jammu and Kashmir were referenced by Mister Sibal, and the recommendation of the State Constituent Assembly that Article 370 should operate with a modification incorporated in the explanation clause (1) was notified by Constitutional Order 44 dated 15 November 1952. The Court inferred that the State Constituent Assembly did not desire the Article to cease to be operative and agreed to its continued operation with that modification., Part XXI of the Constitution, which incorporates Article 370, is titled Temporary, Transitional and Special Provisions. The expression ‘temporary’ was argued to be limited in scope, with the final decision on its continuance to be taken by the Jammu and Kashmir Constituent Assembly. Once the Assembly dissolved, the phrase ‘temporary’ became ineffective, according to the submissions of Mister Kapil Sibal and Mister Gopal Shankarnarayan., The State Constituent Assembly had a wide and defined role that could not be taken over by any other body, including the Legislative Assembly. The constituent power was described as a different genus from legislative power, as argued by Mister Sibal., The petitioners contended that the marginal heading of the provision could not dictate its substantive contents. To support this, they quoted the speeches of Doctor B.R. Ambedkar from the Constituent Assembly and the observations made in Kesavananda Bharati v. State of Kerala., Constitutional Order 48 was presented as a bilateral effort and a sign of confirmation by both the Jammu and Kashmir Constituent Assembly and the Government of India that the provision must continue. The report of the Jammu and Kashmir Constituent Assembly Drafting Committee was adopted verbatim as Constitutional Order 48 to clearly define the sphere of Parliament’s jurisdiction in the State., Mister Dinesh Dwivedi, learned senior counsel, offered a divergent view that once the Jammu and Kashmir Constituent Assembly was dissolved, Article 370 came to an end. Article 370(2) gave the Constituent Assembly the final authority on the continuance of the Presidential orders made under Article 370(1), and therefore no fresh orders could be made after the Assembly ceased to exist. He argued that all Constitutional Orders issued thereafter were without constitutional mandate and that the view adopted in Sampat Prakash was incorrect., The preliminary round of this matter saw a plea that the issue be considered by a bench larger than five judges. The Supreme Court of India in Dr. Shah Faesal and Others v. Union of India and Another rejected that plea, holding that there was no conflict of judgment in Prem Nath Kaul v. State of Jammu and Kashmir and Sampat Prakash., It was submitted that Article 370 could be abrogated only through Article 368, assuming that Article 370(3) survived the dissolution of the Jammu and Kashmir Constituent Assembly, as argued by Mister Dushyant Dave and Mister S. Naphade. Some counsel considered that Article 370(3) had only a vestigial existence on paper after the Assembly’s dissolution and did not survive in operative sense, because Article 378 is not the provision through which the alleged offensive action was taken. Mister Sibal regarded this as an academic exercise in the present proceedings., The effect of Article 370(3) was described as the fulcrum upon which the arguments of both sides hinge. The petitioners submitted that the power under Article 370(3) could be exercised only while the State Constituent Assembly was in seisin. Once the Assembly made its recommendations and was dissolved, the power under Article 370(3) stood extinguished, relying on the Constituent Assembly debates of Doctor Gopalaswami Ayyangar as extracted in Prem Nath Kaul., The petitioners further submitted that the phraseology of Article 370(3) includes the conditional clause ‘the President may …’, making the exercise of power by the President conditional upon the recommendation of the State Constituent Assembly, as argued by Mister Gopal Shankarnarayan., A reading of the Instrument of Accession signed by the Maharaja shows that it preserved the Maharaja’s preliminary legislative power and that the powers provided by the Jammu and Kashmir Constitution were not proscribed by Article 370 of the Constitution of India., The distinction between the Instrument of Accession and a Merger Agreement was highlighted. Historically, Instruments of Accession were signed for the release of external sovereignty, whereas Merger Agreements were signed for the release of internal sovereignty. Observations of the Supreme Court of India in Promod Chandra Deb v. State of Orissa were cited to emphasize this distinction. Both Mister Rajiv Dhawan and Mister Zafar Shah submitted that Maharaja Hari Singh or his successors never signed any merger agreement with the Dominion, and therefore retained their legislative powers., The assimilation of more than six hundred States into India through Instruments of Accession and Merger Agreements must be understood in its historical context. The submission was that such historical agreements cannot be unilaterally negated by the Union of India, relying on the observations in Madhav Rao Jivaji Rao Scindia v. Union of India concerning the unilateral action of the President, which was not upheld then, although the abolition of privy purses was later upheld after Parliament passed the necessary legislation., Mister Zafar Shah additionally contended that Article 370(3) could at best be used only to de‑operationalise Article 370 of the Constitution., The Constitution of Jammu and Kashmir was stated to derive its authority from the sovereignty of Maharaja Hari Singh, which was retained in the State as reflected by the absence of a signed Merger Agreement. Thus, it stands on its own feet and not by virtue of the Constitution of India. The arrangement envisaged two constitutions to coexist, as enunciated by Justice Y.V. Chandrachud in Kesavananda Bharati., The observations made in State Bank of India v. Santosh Gupta, which opined that Jammu and Kashmir possessed no sovereignty, were urged to be treated as merely obiter, because the Court had already decided that legislative competence to enact the SARFAESI Act, 2002, was found in List I. Consequently, there was no occasion to determine sovereignty, and the observation was said to be per incuriam in light of the judgment in Prem Nath Kaul., The impugned executive orders were argued to be incompetent to alter the relationship between the State and the Union. Constitutional Order 272 was described as illegal and mala fide. The counsel urged that while interpreting constitutional provisions, the values of democracy, federalism and constitutional morality must be kept in mind., The unilateral concurrence granted by the Governor to the actions of the President under Article 370 was assailed, because the Jammu and Kashmir Constitution mandated that the Governor could act only with the aid and advice of the Council of Ministers, except in the limited circumstances set out in Sections 36, 38 and 92 of that Constitution., It was submitted that the Governor’s oath required him to uphold and preserve the Jammu and Kashmir Constitution, and that the impugned action amounted to a breach of that oath., The impugned action was characterised as an amendment of Article 370 by addition of clause (4) to Article 367, and was described as mala fide because it sought to confer a specialised authority on the Legislative Assembly that it could not ordinarily assume., The Governor of the State acts on the aid and advice of the Council of Ministers; with those conditions not satisfied, the provision was held to be unworkable., Article 367 must be applied on its own terms as an aid in interpretation and cannot be used to effectuate an amendment in another provision such as Article 370., Article 370(3) begins with a non obstante clause; therefore Article 367 was not available through that process, as urged by Mister Gopal Shankarnarayan., It was argued that there is an implied relation in any delegated power to create exceptions and modifications, including the President’s power under Article 370(1)(d). This limitation was recognised in judgments such as Delhi Laws Act, In Re and Kesavananda Bharati (para 1423)., The observations in Puranlal Lakhanpal v. President of India were required to be construed strictly as obiter. The Court had already determined that the modification in that case did not constitute a radical alteration, and the inherent limitation of such power was recognised in Kesavananda Bharati; therefore, the observations that sought to dilute that principle were to be treated as per incuriam., Constitutional Order 273 was also described as illegal and mala fide. The essence of the scheme of Article 370 is that any decision under Article 370(3) must reflect the will of the people. The State Constituent Assembly had been dissolved and there was no elected State Assembly; consequently, the will of the people was not reflected, as argued by Mister Sibal., The improper exercise of power under Article 356 while issuing Constitutional Orders 272 and 273 was contested. Mister Kapil Sibal, learned senior counsel, contended that the route adopted by the respondents was constitutionally unsustainable, because the power under Article 356 cannot be used to amend the Constitution. The respondents had, in effect, amended the Constitution of India by taking recourse to Article 356., It was further urged that Article 356 cannot be used to make irreversible changes. Article 356 provides for provisions in case of failure of the constitutional machinery in the State, and an alternative arrangement must be envisaged until the machinery is restored. The interregnum period cannot be used to nullify powers that solely vest with the State Assembly, as held in Krishna Kumar Singh v. State of Bihar., An additional plea submitted by Mister Rajeev Dhavan sought a condition in Article 356 that the Governor’s recommendation for imposing President’s Rule should also be placed before the Legislative Assembly., Mister Naphade, learned senior counsel, argued that it was not within the President’s power to proclaim a breakdown of State machinery when the Governor had dissolved the Assembly and assumed the State’s power; once the Governor assumes such power, the basis for the breakdown no longer subsists., Article 3 of the Constitution does not warrant the power to convert a State into a Union Territory. Article 3, under the heading ‘Formation of new States and alteration of areas, boundaries or names of existing States’, enumerates clauses (a) to (e) and does not mention any power to abolish a State. This was submitted as consistent with the principle of a two‑tier democracy., Reference was made to the pre‑Constitutional period, noting a consistent progression towards self‑governance since the Government of India Act, 1919, which required obtaining opinions from the local government before reorganising into a Governor’s province. The Government of India Act, 1935, a precursor to Article 3, adopted a similar practice. Consequently, the abolition of a State and its reduction to a Union Territory was not envisaged in earlier times, as argued by Mister Chandra Uday Singh, learned senior counsel., It was observed that since the Seventh Amendment in 1955, no State has been reduced to a Union Territory, although the reverse has occurred with several Union Territories becoming States. Carving out a Union Territory from a State, as in the case of Chandigarh, is possible, but the potential for misuse was emphasized., The conversion of a State into a Union Territory is carried out through a simple majority of both Houses of Parliament, which would extinguish several constitutional rights guaranteed to States, such as the right to borrow upon the security of the Consolidated Fund of State under Article 293. Such an exercise, if at all, could be carried out only through a constitutional amendment with all its checks and balances. The Constitution (Eighteenth Amendment) Act, 1966, which contained explanations to Article 3, had not been extended to Jammu and Kashmir. Explanation I refers to clauses (a) to (e) including Union Territory within the expression ‘State’, but the proviso states that ‘State’ does not include a Union Territory. Explanation II confers on Parliament the power to form a State or Union Territory by uniting a part of any State or Union Territory with any other State or Union Territory., The suspension of the proviso to Article 3 was argued to be illegal. Mister Rajeev Dhavan contended that the proviso, as applicable to Jammu and Kashmir, could not be suspended through Article 356 because the proviso mandatorily envisaged an expression of democratic will of the people, which was impossible without an elected assembly., The second proviso to Article 3, as applicable to Jammu and Kashmir, stipulates that no bill providing for increasing or diminishing the area of the State or altering its name or boundary shall be introduced in Parliament without the consent of the Legislature of that State., Mister Dhavan emphasized that the President of India does not have carte blanche under Article 356. Article 356(1)(c) allows the President to suspend provisions of the Constitution relating to any body or authority in the State, but the proviso to Article 3 does not fall within this category., The President can exercise only legislative powers of the Assembly under Article 356(1)(b) read with Article 357, which refer to the power to make laws. The power under the proviso to Article 3 is non‑legislative in character and more akin to the power of election and consultation., The constitutional defence of the respondents began with the assertion that no semblance of sovereignty remained with the State of Jammu and Kashmir, as its integration was complete., Section 6 of the Government of India Act, 1935, as confirmed by Section 6 of the Indian Independence Act, 1947, provides that accession is complete in all respects once a ruler has accepted the Instrument of Accession. Accordingly, the Attorney General and Solicitor General urged that States are thereafter united in a federation, leaving no vestige of separate sovereignty. The supremacy of the Constitution of India was accepted by Yuvraj Karan Singh in his proclamation of 25 November 1949., The State of Jammu and Kashmir was said to stand on the same footing as other acceding States because (a) sixty‑three other States had their own constitutions prior to accession, (b) representatives from Jammu and Kashmir participated in the Constituent Assembly, and (c) many other States did not sign any merger agreement. On these grounds, it was argued that there was nothing distinct about the accession of Jammu and Kashmir with respect to sovereignty., Once authority was surrendered to the Dominion, the Jammu and Kashmir Constituent Assembly had no sovereignty or plenary power to create a document that had the status of a constitution. The Constitution of Jammu and Kashmir was described as a document of internal governance and not a parallel constitution. Section 5 of the Jammu and Kashmir Constitution provides that the State’s law‑making powers extend only to the domain left to it by the Constitution of India, rendering the State Constitution inferior to the Constitution of India. Section 147 of the Jammu and Kashmir Constitution makes this inferior status unalterable., Individual agreements signed prior to accession have no legal force; all obligations with respect to former princely States are to be derived solely from the relevant constitutional provisions. This plea was supported by the earlier judicial pronouncement in Raghunathrao Ganpatrao v. Union of India, which upheld the constitutional validity of the Constitution (Twenty‑sixth Amendment) Act of 1971. The judgment in Madhavrao Scindia’s case was distinguished as it dealt with an impermissible exercise of the President’s executive power to remove the provision of the privy purses, which was later upheld after the necessary legislative exercise., In State of West Bengal v. Union of India, it was opined that the features of a compact or agreement between different federal units are absent in the Constitution of India. The judgment provides for distribution of power, which is not an index of sovereignty. Thus, legal sovereignty is vested with the people of India, as submitted by Mister Rakesh Dwivedi, learned senior counsel., It was also urged by Mister Rakesh Dwivedi that there could not be any internal sovereignty once the apex court and organs of the Union are allowed to operate in Jammu and Kashmir., Constitutional Orders had been issued from time to time. Prior to the impugned Constitutional Order, the Union Government, Parliament, Supreme Court of India, Comptroller and Auditor General, Delimitation Commission, Part XIII, introduction of Governor and Chief Minister, activation of ninety‑four out of ninety‑seven entries in List I, financial provisions, residuary powers, etc., had all been applied to Jammu and Kashmir. Thus, the foundation had been laid and the impugned actions would build upon it., Article 370, both from the heading in which it falls and from the reading of the transitional provision, does not require permanency; if it had, the necessary amendments would have been made to the Constitution. It was also treated as a transitional provision. The proviso to Article 370(3) became otiose once the State Constituent Assembly dissolved itself., Doctor Gopalaswami Ayyangar’s statements in the Constituent Assembly were supportive of the transient nature of the arrangement under Article 370, as it was meant to endure only until the situation in the State had been normalised., Various Presidential Orders passed under Article 370(1), especially Constitutional Order 10, which applied a large part of the Constitution of India to Jammu and Kashmir, show that Article 370(1) was a mechanism to gradually bring the State on par with other States by applying provisions of the Constitution of India in a step‑by‑step fashion, and that exercise was completed by the impugned executive action., If Article 370 were presumed to have permanence, it would lead to an incongruous situation where the President, in applying the Constitution of India to Jammu and Kashmir under Article 370(1), would have near‑limitless power to create exceptions and modifications with the concurrence of the State Government. Historically, this practice led to a patchwork application of constitutional provisions, such as the removal of references to Scheduled Tribes from Article 15(4) by Constitutional Order 48, the modification of Article 19 allowing the Legislative Assembly to define reasonable restrictions, and the creation of Article 35A as a new provision applicable only to Jammu and Kashmir., The State Constituent Assembly did not give a recommendation either way, leaving the discretion to the supreme executive authority, i.e., the President, to abrogate Article 370.
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Article 370 prevented residents of Jammu & Kashmir from being treated on par with other citizens of India. Ultimately equality was the necessity. Thus, it could never have been intended to be a permanent arrangement., Article 370(3) How it works out? The proviso to Article 370(3) became otious once the State Constituent Assembly dissolved itself. It was urged that Article 370 has always been interpreted in a functional manner with due consideration of different historical contingencies. Illustratively, in Constitutional Order 39, we have applied Articles 54 and 55 with modifications to Jammu & Kashmir, recognizing the Constituent Assembly of the State as the Legislative Assembly since there was no Legislative Assembly in the State at that time., Constitutional practice suggests that whenever a term in Article 370 becomes otious, it is replaced by the next functional equivalent or its successor. Illustratively: a) Constitutional Order 39 discussed above; b) Constitutional Order 44, which altered the definition of Sadar-i-Riyasat in the Explanation to Article 370(1); and c) Constitutional Order 48, which added Article 367(4), whereby references to Legislative Assembly would be construed as references to the Constituent Assembly for purposes of voting in the Presidential election. It was, thus, a working arrangement, which applied from time to time in its perspective., Article 370(3) was in nature a safety valve entrusted with the President, to be invoked when the political compromise anticipated in Article 370(1) fails to achieve its purpose, as urged by Mr. Harish Salve., The observations in Puranlal Lakhanpal case were cited, where it held that the Presidential powers of creating exceptions and modifications in applying provisions of the Constitution under Article 370(1)(d) are of the widest possible amplitude. These observations were reaffirmed by the Constitution Bench of the Supreme Court of India in the Sampat Prakash case and, thus, could never be considered as mere obiter., The compliance of an impossible condition need not be explicitly excused by the provision as per the maxim lex non cogit ad impossibilia., Reading the proviso as a mandatory condition would be impermissible as it would make the exercise of the President's powers conditional to the approval of an independent, non‑constitutional body. The Constitution of India envisaged the President as a continuing institution and the Constituent Assembly of Jammu & Kashmir as an ephemeral one. Thus, the latter's obsolescence cannot affect the powers of the former. The work of the Constituent Assembly had been completed and with that Article 370(3) had worked itself out., There were only two constitutionally compliant methods of reading Article 370: a) reading an unfettered plenary power of the President under Article 370(3) once the State Constituent Assembly dissolved itself; or b) replacing the Constituent Assembly in Article 370(3) with its successor body. It is the latter which has been adopted in the present case, it was urged by the Solicitor General that though this option had been exercised, both options were equally permissible., Article 370(3) of the Constitution consciously used the word recommendation by the Constituent Assembly, which is an inferior body to the President of India. Thus, a recommendation of an inferior authority could never be binding on the superior authority, as per Mr. Rakesh Dwivedi., Where the Constitution of India envisaged that the President has to act only on directions of another authority, such contingency has been explicitly expressed. Illustratively, Article 103(1) makes the decision of the President final, but Article 103(2) requires the President to obtain the opinion of the Election Commission and act according to such opinion. In such a scenario, the President has no other discretion and acts on the opinion of the Election Commission. There is no deployment of the language corresponding to the same in Article 370(3) and the term recommendation implies that the President is not bound to act on that recommendation., Whether the relationship could be altered by the impugned Executive orders. Constitutional Order 272 is intra vires. When an institution or clause contemplated in Article 370 became otious, it can be replaced by its successor or next functional equivalent. This alteration can be made through an amendment to Article 367 which was permissible through the exercise of powers under Article 370(1)(d). Such a practice had the legal imprimatur in Mohd. Maqbool Damnoo v. State of Jammu & Kashmir, where the Constitution Bench of the Supreme Court of India upheld the substitution of Sadar-i-Riyasat for Governor in Constitutional Order 74., Alterations to Article 370 of the Constitution itself must be permitted through the route of amending Article 367 in exercise of the President's powers under Article 370(1)(d). If this route is not left open, Article 370 would become permanent, which is not what the Constitution makers envisaged as inter alia apparent from the Chapter under which it fell. The only other method to alter the provision was through Article 370(3) (such as the change made in Constitutional Order 44). This route was closed after the State Constituent Assembly dissolved itself and the provision became otious. Alternatively, if it were to be accepted that Article 370(3) was the only possible route to alter the provision, then even an amendment under Article 368 would have been impermissible., The amendment to Article 367, through Article 370(1)(d), was also with concurrence, which is a sine qua non under the second proviso to Article 370(1)(d). This is notwithstanding the fact that the concurrence so obtained from the Governor was when he was acting in place of the Council of Ministers. In any case, concurrence constitutes a higher threshold than recommendation and the framers consciously insisted on a lower threshold of agreement under Article 370(3). The absence of recommendation would not be fatal to the exercise of power., Constitutional Order 272 reflects democratic principles, as it was made on the recommendation of Parliament. The decision of the President also reflects a decision made on the aid and advice of the Council of Ministers, which is collectively responsible to Parliament., Any constitutional measure meant to further equality and fraternity, assuring the dignity of the individual, and the unity and integrity of the nation should be welcomed. Raghunath Ganpatrao's case (supra)., Constitutional Order 273 is intra vires. In the line of the arguments already advanced, it was suggested that when the Constituent Assembly dissolved itself without giving any recommendation, the proviso to Article 370(3) became otious. However, this could never render the main provision inoperative. The President would always have the power to abrogate Article 370 in the absence of any modification to Article 367 through Constitutional Order 272. Nevertheless, the option under Article 370(1)(d) was chosen in view of the strategic importance of the State and the need to have the issue debated before both Houses of Parliament., Article 370 vests the President with constituent power, i.e., power to apply or re‑fashion different provisions of the Constitution of India as applicable to Jammu & Kashmir. Thus, it is not amenable to ordinary forms of judicial review, such as the grounds of malafides, etc. Delhi Laws, in Re was distinguishable as the said case dealt with statutory delegation of power. But, in the present scenario, the assignment of the powers to the President is directly from the Constitution itself., Permissible exercise of power under Article 356 while issuing Constitutional Order 272 and Constitutional Order 273. Article 356 encompasses all shades of legislative and constituent powers in Parliament. The said powers cannot be limited by Article 357 as the latter deals only with the powers of Parliament to make laws. Article 357 does not deal with powers of the legislatures as used in Article 356(1)(b). There are thus no implied limitations in the power under Article 356., Petitioners have challenged the imposition of the Governor's and President's Rule at a belated stage, i.e., after almost fourteen months., Whether the alteration from a State to a Union Territory was permissible? Article 3 grants Parliament the power to convert a State into a Union Territory. Constitutional Order 272 had already been issued by the President before the Reorganisation Act was passed. Thus, Article 3, as applied to the rest of the country, applied to Jammu & Kashmir and the additional proviso did not apply., Article 3 provides for a plenary power of Parliament, where it is entitled to consider factors such as national security, integrity, etc. An assessment of these factors would not be justiciable before the Court., In the process of scrutiny of the delimitation exercise undertaken as State of Jammu & Kashmir in Haji Abdul Ghani Khan v. Union of India, this Court had held that Explanation I to Article 3 provides Parliament with power to form new Union Territories. This was in the context of the Reorganisation Act. Explanation II clarifies that such Union Territory can be formed by uniting parts of any States. Thus, Parliament can convert a State into one or more Union Territories., The power under Article 3 extends to effectively extinguishing the existence of a State, notwithstanding any assumption of sovereignty of the said State., The power is such that States only have the right to express their views on proposals for reorganisation. It is not necessary to make a constitutional amendment. The power further extends to providing the extent of representation in the State Legislature, varying its numerical strength, and even affecting the existence of a State Legislature., Parliament is paramount in the matter of constitution of States. Article 3 only envisages that the affected States will express their views. There is no requirement of concurrence. In effect, views are to be taken from the entire nation via the Parliament, as the issue leading to the reorganisation affects the nation as a whole., Upon a question of the Supreme Court of India, at the very inception, it was emphasized that instructions were taken, and a statement was made by the Solicitor General before the Supreme Court of India in unambiguous terms that the status of the Union Territory of Jammu and Kashmir would be restored to the status of a State once the elections were held. On a query as to when the elections would be held, it was stated that the endeavours are being made to do so at the earliest and that grassroots democracy has already been restored by the elections held at the Panchayat levels. It was submitted that the Honourable Home Minister on the floor of the House had already said that this was a temporary measure, and it would again become a State., The suspension of the proviso to Article 3 was permissible. The proviso to Article 3 has been suspended each time Article 356 is invoked. Every provision of the Constitution that refers to any decision to be made by the Legislative Assembly is suspended in this manner, notwithstanding whether that decision is legislative or recommendatory in character. Parliament then substitutes the Assembly in all capacities., The exercise of powers of the State Legislature by Parliament under Article 356 for the purpose of reorganising the State of Punjab in 1966 was upheld by the High Court of Delhi in Manohar Lal v. Union of India. This includes the takeover of powers of the State Legislature to meet and express its views, as contemplated by the proviso to Article 3. This was because the Governor's power to summon the Legislature was itself suspended., The views contemplated by the proviso to Article 3 can be given by Parliament itself without obviating the federal structure of the Constitution. At times, reorganisation of a State is required to bring it out of the situation that necessitated the imposition of President's Rule in the first place. The principle that the Indian Constitution is both unitary and federal must, thus, be appreciated in this context., Resolution of Constitutional Dilemma: The task which confronts us is of analysing the wide spectrum of submissions to assess the constitutionality of the path adopted by the respondents. The submissions advanced before us by both sides and different counsels have been set forth hereinabove. In the conspectus of the same, we have analysed these submissions under the following broad heads., The Constitutional Relationship between the Union and the State of Jammu and Kashmir prior to the impugned actions. The concept of internal sovereignty after the Instrument of Accession. The petitioners urge that Maharaja Hari Singh retained an element of internal sovereignty with himself, having signed the Instrument of Accession but not a Merger Agreement. To our mind, this question is no longer res integra, having received earlier consideration by a coordinate bench of the Supreme Court of India in Prem Nath Kaul, where the vires of the Jammu & Kashmir Big Landed Estate Abolition Act, 1950 was in question., The argument did not find favour with the Court. It was noted that with the Indian Independence Act, 1947, the suzerainty of His Majesty over princely states lapsed, thereby restoring the Maharaja's status of an absolute monarch. Later, with the signing of the Instrument of Accession, it was opined that the Maharaja conceded to the authorities mentioned in Clause 1 of the Instrument, his right to exercise certain functions subject to other terms of the Instrument. Clause 6 expressly recognized the continuance of the sovereignty of his Highness in and over the State., In paragraph 26 of the judgment, the Court was constrained to reject the argument that the execution of the Instrument of Accession affected in any manner the legislative, executive and judicial powers in regard to the Government of the State when they vested in the Ruler of the State., The matter did not rest at this as the Court observed that the powers of Yuvraj Karan Singh (vested by the Maharaja on 20 June 1949) were not substantially limited by his Proclamation dated 26 November 1949, whereby he declared that the Constitution of India would govern the constitutional relationship between the State and the Union. Thus, the Proclamation did not alter the constitutional position established once the Maharaja had signed the Instrument of Accession., Even Article 370(1) was opined to not affect the plenary power of the Maharaja in the governance of the State, as these powers had been recognized and provided by the Constitution of the State itself. It is through the Constituent Assembly that the State was free to choose its own form of Government., The Coordinate Constitution Bench of the Supreme Court of India is thus clear in its finding that the State did not lose all semblance of its internal sovereignty which included deciding upon the form of government of the State upon signing the Instrument of Accession. The distinguishing feature, as compared to some of the other States, was that a slightly different path was followed for the accession of the State of Jammu & Kashmir by recognizing the Constituent Assembly to be formed for the State. The route of assimilation of the State of Jammu and Kashmir was through Article 370., The Constitution of Jammu and Kashmir, which resulted from the deliberations of the State Constituent Assembly, was thus the repository of the sovereignty of the State of Jammu and Kashmir., Article 370 of the Constitution as a temporary provision. The nature of Article 370 itself whether temporary or permanent is the key to assessing the validity of the impugned actions. We propose to conduct this enquiry in three ways. First, by examining the historical background that led to the introduction of the provision in the Constitution. Second, by looking at the structure of the provision itself, and third, by reflecting on how the provision has worked out in the context of State‑Union relations., Certain aspects of the history that we have enumerated in the preceding sections guide us in this endeavour. Jammu and Kashmir had not acceded to India when the latter attained independence. Whereas Maharaja Hari Singh had entered into a standstill agreement with Pakistan, India had not opted to do the same. It is in this context that the Maharaja addressed a letter to India, narrating the precarious situation of the State due to infiltration by armed men. The Maharaja sought assistance, which India made conditional upon him signing the Instrument of Accession., The Maharaja finally acceded through the Instrument of Accession on 26 October 1947. On 5 March 1948, he proclaimed the establishment of a Constituent Assembly for devising a Constitution for the State., On turning the pages of the Constituent Assembly Debates, which were read and re‑read before the Court at length, Shri N. Gopalaswami Ayyangar's statements allude to this historical context. When questioned by Maulana Hasrat Mohani about the reasons for special treatment of the State, Ayyangar replied that it was not yet ripe for the manner of integration provided in the Constitution for other States. This was on account of special conditions of Kashmir. Ayyangar went on to express his hope that in due course even Jammu and Kashmir will become ripe for the same sort of integration., Ayyangar reflected that the Constitution of the State would decide on the future of relations with the Union. He stated: 'Till a Constituent Assembly comes into being, only an interim arrangement is possible and not an arrangement which could at once be brought into line with the arrangement that exists in the case of other States.', This sentiment was echoed by Shri Sheikh Abdullah in his address to the State Constituent Assembly. He recounted the grave peril that the State was in due to the invasion of armed tribesmen and the sacrifices made by Kashmiris to save their State from being overrun. He noted that these considerations led the Maharaja to take assistance from India by signing the Instrument of Accession., He also gave other reasons in support of acceding to India, which merit reiteration: 'As a realist I am conscious that nothing is all black or all white, and there are many facts to each of the proposition before us... The Indian Constitution has set before the country the goal of secular democracy based upon justice, freedom and equality for all without distinction... The Indian Constitution has amply and finally repudiated the concept of a religious state, which is a throwback to medievalism, by guaranteeing the equality of right of all citizens irrespective of their religion, colour, caste and class.', The Instruments of Accession signed by the various erstwhile princely states were to be reflected in the Constitution of India itself. However, insofar as Jammu and Kashmir State was concerned, Article 370 was a special procedure contemplated due to the special conditions in the State and hope was expressed that in times to come, Jammu & Kashmir will become ripe for the same sort of integration as had taken place in the other States., Thus, the intent was clear: complete integration but taking place over a period of time. Article 370 was envisaged as an interim system till the State's Constituent Assembly came into being and for a limited period, on account of the special circumstances of the State., If we turn to the wording of Article 370, we will find that it reflects this intent. The provision was placed in Part XXI, which was titled Temporary and Transitional Provisions at the time. The marginal note to the provision was titled Temporary Provisions with Respect to the State of Jammu and Kashmir. Although the law is settled that a marginal note to a provision cannot dictate its meaning, the note can certainly be a guide to the provision's drift and purpose., Article 370 opens with a non obstante clause, which implies that the contents of the provision remain unaffected by the other provisions of the Constitution. Clause (1)(a) specified that Article 238 shall not apply to the State. As a consequence, Part VI did not apply. Clause (1)(b) enabled Parliament to make laws for the State predicated on a specification made by the President of the subjects comprising the Union and Concurrent Lists. Sub‑clause (b)(i) provided for consultation whereas (b)(ii) provided for concurrence by the State Government., Article 370(1)(c) states that Articles 1 and 370 shall apply in relation to the State. The necessary consequence of the application of Article 1 is that Jammu and Kashmir became an integral part of India that is Bharat., Clause (1)(d) speaks of extending other provisions of the Constitution to the State, subject to exceptions and modifications specified by the President. The first proviso stipulates that for matters specified in the Instrument of Accession, consultation with the State Government is required, whereas for other matters concurrence would be necessary., Article 370(2) specifies the procedure when the Constituent Assembly of the State is in existence, providing that concurrence provided under Article 370(b)(ii) or the second proviso to Article 370(1)(d) shall be placed before such Assembly for further decision., Finally, Article 370(3) contained a procedure to bring the arrangement to an end by way of public notification. However, a recommendation by the Constituent Assembly was stated to be necessary in this regard., Article 370 thus contemplated the mechanism for extending Parliament's law‑making power and the various provisions of the Constitution of India to the State, which show that Article 370 was meant to gradually bring the State on par with other States in this process of phased integration. We may note that this is evinced by the series of Constitutional Orders passed by the President in consultation or concurrence with the Government of the State, from time to time., Once the State was firmly a part of India under Article 1, only further integration remained to be undertaken over a period of time by extending both Parliament's law‑making powers to the State and various provisions of the Constitution of India. This leaves no manner of doubt that Article 370 was a temporary provision, meant to serve a specific function.
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At this stage, we reject Mr. Dinesh Dwivedi, Learned Senior Counsel's submission that the provision was temporary only until the State Constituent Assembly was dissolved. Other than the historical and textual reading alluded to above, this issue has been decided by a coordinate Bench of the Supreme Court of India in Sampat Prakash. There, the petitioner challenged Constitutional Orders 59 and 69 as ultra vires the power of the President under Article 370(1). The argument raised was that Article 370 was temporary and ceased to be operational after the State Constituent Assembly dissolved itself. The Supreme Court of India held otherwise, taking the view that the special conditions necessitating the provision continued to exist, and the Constituent Assembly of the State had also not recommended that the provision cease to exist., Nevertheless, we may note that the question of whether the power under Article 370(3) could be exercised after the dissolution of the State Constituent Assembly was not considered by the Supreme Court of India therein. That is a question that we are called to decide upon presently., Our discussion above has dealt with two aspects. First, the recognition of Jammu and Kashmir's internal sovereignty through the mechanism of Article 370, specifically Article 370(2), which contemplated the Constituent Assembly of the State. Second, the temporary nature of Article 370 as such, in light of historical context, the text of the provision, and the constitutional practice surrounding it. Once these aspects are read with Article 370(3), the corollary is that there was a mechanism to bring the whole arrangement to an end. The effect of the power under Article 370(3), once exercised, would be that the article shall cease to be operative. In other words, the mechanism was meant to de‑recognize the State's internal sovereignty. Thus, the exercise of the power under Article 370(3) meant that for the purposes of the Constitution of India, only the Constitution of India would apply to Jammu and Kashmir and not any other constitution, i.e., the Constitution of Jammu and Kashmir. Since the Constitution of India is a complete code providing for all aspects of lawmaking and governance, there would be no need for the Constitution of Jammu and Kashmir to apply to the State, and it would be replaced by the Constitution of India., An important question left to be determined is whether the power under Article 370(3) could be exercised after the Constituent Assembly of the State had dissolved itself. We have already noted the temporary nature of Article 370, as apparent from the provision's placement in the Constitution, its historical context, and its phraseology. Turning specifically to Article 370(3), which contains the procedure to bring the arrangement to an end, we note that it vests power in two institutions: the President and the Jammu and Kashmir Constituent Assembly. The former is permanent, whereas the latter is ephemeral by its very nature, meant for a specific purpose and intended to be extinguished after the purpose is achieved. The purpose of the Constituent Assembly was to draft a constitution for the governance of the State. The purpose of Article 370, as noted above, was to slowly bring Jammu and Kashmir on par with other States in India. The second purpose remained an ongoing exercise, long after the State Constituent Assembly was dissolved. Thus, the conditionality in Article 370(3) of the requirement of a recommendation from the Constituent Assembly cannot be read in a manner that makes the reference to the larger intention of the provision redundant. In a nutshell, if the provision was meant to be temporary, Article 370(3) must be construed to continue to be in subsistence even after the expiry of the conditionality, i.e., the State's Constituent Assembly., The next question is to determine what process is to be followed for the President to exercise his power under Article 370(3). From the above analysis, if Article 370 can be abrogated even after the Constituent Assembly of the State has been dissolved, the power of the Constituent Assembly to make a recommendation cannot be read as a condition precedent to the exercise of the President's power to issue a declaration under Article 370(3). The petitioners argue that the recommendation of the Constituent Assembly is necessary for the President to exercise his power, or in other words, that the power cannot be exercised unilaterally in the absence of the Constituent Assembly. I am unable to agree with this view. When the Constituent Assembly ceased to exist, only the power of the Constituent Assembly to make a recommendation ceased to exist; the proviso to Article 370 became otiose. The main provision, which is the President's power to issue a declaration, continued to exist. Adopting the petitioners' view would mean that Article 370, which was meant to be temporary, would no longer be temporary after the Constituent Assembly ceases to exist, which is incongruent with the purpose of Article 370. On the other hand, the power of the President to unilaterally de‑operationalise Article 370 once the Constituent Assembly of the State ceases to exist accords with the vision of the Constituent Assembly of India and the purpose of Article 370 to ensure full constitutional integration as and when the circumstances permitted the same., On 5 August 2019, the President issued Constitutional Order 272 under Article 370(1)(d) applying the entire Constitution of India to the State. Article 367 was modified by adding Article 367(4), which, after CO 272, reads as follows: (4) For the purposes of this Constitution as it applies in relation to the State of Jammu and Kashmir (a) references to this Constitution or to the provisions thereof shall be construed as references to the Constitution or the provisions thereof as applied in relation to the said State; (b) reference to the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadar‑i‑Riyasat of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office, shall be construed as references to the Governor of Jammu and Kashmir; (c) references to the Government of the said State shall be construed as including references to the Governor of Jammu and Kashmir acting on the advice of his Council of Ministers; and (d) in proviso to clause (3) of Article 370 of this Constitution, the expression 'Constituent Assembly of the State' referred to in clause (2) shall read 'Legislative Assembly of the State'. In effect, CO 272 envisaged that the recommendation under Article 370(3) could be provided by the Legislative Assembly of the State. CO 272 has been impugned on the basis that Article 370(1)(d) cannot be used to amend Article 370 and that the power under Article 370(1)(d) can only be exercised with concurrence of the Government of the State., The petitioners contend that the addition of Article 367(4)(d) read with Article 370(1)(d) amounts to an amendment of Article 370(3), which exceeds the President's power to make modifications under Article 370(1)(d) and is not in accordance with the procedure under the Constitution. The Union's actions must be tested for what they are. Article 370(1)(d) does not allow modifications to Article 370. The power under Article 370(1)(d) can only be exercised to make modifications to terms of the Constitution other than Article 370 and Article 1. This can be gathered from a combined reading of Article 370(1)(c) and (d). Article 370(1)(c) lays down that Article 1 and Article 370 shall apply to the State of Jammu and Kashmir. Article 370(1)(d) permits the President to apply other provisions of the Constitution, even with modifications. The exceptions to the provisions contemplated under Article 370(1)(d), that is Article 1 and Article 370, were also noted in Puranlal Lakhanpal v. Union of India. The route to modify Article 370 is through an order under Article 370(3), which gives the President the power to de‑operationalise Article 370 or to make it operational subject to exceptions and modifications., As discussed above, CO 272 applied all the provisions of the Constitution of India to the State. Article 370(1)(d) requires (i) consultation with the Government of the State for applying those provisions which are declared by the President as corresponding to matters in the Instrument of Accession, and (ii) concurrence with the Government of the State for applying any other provisions. In this case, the Governor of the State had dissolved the Legislative Assembly, there were no Council of Ministers, and the President had assumed all functions of the Government of the State under the 2018 proclamation, as extended. The petitioners have contended that this is invalid, as Article 367(4)(c) of the Constitution of India read with Section 35 of the Constitution of the State required the Governor to act on the aid and advice of the Council of Ministers of the State. Notwithstanding these illustrations, I find that the concurrence of the Union Government can substitute the concurrence of the Government of the State, since the President has unilateral power to notify that Article 370 ceases to exist under Article 370(3), which, in effect, amounts to applying all provisions of the Constitution under Article 370(1)(d). Therefore, there was no requirement to obtain concurrence of the Government of the State in applying all provisions of the Constitution under CO 272., The imposition of the Governor's rule under Section 92 of the Jammu and Kashmir Constitution on 20 June 2018 was a direct result of the failure of the constitutional machinery of the State. On the Legislative Assembly being dissolved during the Governor's rule on 21 November 2018, the status quo position continued as prior to it, and on 28 November 2018, the Governor submitted a report to the President regarding the imposition of emergency under Article 356. The President's rule was thus imposed. The imposition of President's rule took place as Section 92 of the Jammu and Kashmir Constitution limited the Governor's rule to six months without any scope to extend it, and there is nothing on record to show that any political party was willing to stake claim to form the Government during this period., The petitioners relied upon the observations of Sawant, J. in S.R. Bommai case to harmonise clauses (1) and (3) of Article 356 to opine that the President's powers are meant to be checked by Parliament and this check would be rendered meaningless if the President took an irreversible measure. One such irreversible measure was stated to be the dissolution of the Assembly. It was held in S.R. Bommai that dissolution is permitted if the proclamation had been approved by Parliament prior to such irreversible action, i.e., the will of the people as reflected in Parliament had given its imprimatur. The settled principle is that the President had the power to make irreversible changes if the proclamation under Article 356 had received prior approval from both Houses of Parliament. In the present case, the proclamation received approval on 28 December 2018 by the Lok Sabha and on 3 January 2019 by the Rajya Sabha. Thus, prior approval existed before the promulgation of CO 272 and CO 273. Secondly, since the proclamation of an emergency is justiciable and if the same is declared to be invalid by the Court, then, notwithstanding its approval by Parliament, the status quo ante can be restored by the Court at its discretion. In other words, a dissolved Legislative Assembly and the Ministry can be revived, and while restoring the status quo ante, the Court can validate the President's action taken till that date and grant other necessary reliefs., To understand the powers conferred on the President after the emergency proclamation, we need to closely appreciate Article 356 enumerating the powers exercisable by the President. The inclusion of emergency provisions in the Constitution, starting with the procedure of imposing emergency to the powers of the President under clause (1) of Article 356, are all measures catering to an exigency, albeit aimed towards restoring the constitutional equilibrium of the State. The constitutional scheme permits the Constitution to adapt itself to a unitary structure in exceptional situations, with the powers of the Union Parliament taking precedence over the State Legislature. Article 355 casts an additional burden on the Union to protect the State from any form of external aggression and internal disturbance whilst mandating the Union to oversee that every State is functioning in consonance with the Constitution. During Constituent Assembly debates, Dr. B. R. Ambedkar distinguished the nature of the Constitution of India from the federalism in the United States and defined how the Constitution of India is equipped to adapt itself to a federal or unitary structure of governance based on the situation at hand. He observed that all federal systems, including the American, are placed in a tight mould of federalism and cannot change their form, whereas the Draft Constitution can be both unitary as well as federal according to the requirements of time and circumstances., Sub‑clause (a) of Article 356(1) permits the President to assume all or any of the functions of the State Government, powers exercisable by the Governor or any other authority in the State, but excludes the President from assuming powers of the State Legislature. In the present case, the State Legislature was already dissolved before the imposition of emergency under Article 356. Sub‑clause (b) of Article 356(1) allows the Union Parliament to exercise the powers of the State Legislature under a proclamation made by the President. The term 'powers of the Legislature of the State' includes all powers exercisable by the State Legislature, encompassing legislative and non‑legislative functions. Article 357, which is in continuance of Article 356, does not stipulate any bar or restriction on the Union Parliament or President to exercise non‑legislative powers of the State Legislature. Article 357 transfers the prime power of the State Legislature, i.e., the power to make laws, to the Union Parliament during an emergency and in the absence of a State Legislature. The President, therefore, may take over both legislative and non‑legislative functions of the State Legislature, subject to judicial safeguards such as those articulated in S.R. Bommai and Rameshwar Prasad v. Union of India, and the requirement that every proclamation be ratified by both Houses of Parliament within two months under Article 356(3)., We may note that CO 272 had already been issued by the President at the time the Jammu and Kashmir Reorganisation Bill, 2019 was taken up for discussion by Parliament. This implied that all provisions of the Constitution of India were applicable to the State of Jammu and Kashmir. Article 3, as applicable to the rest of the country, was thus also applicable to Jammu and Kashmir. The Reorganisation Act needs to be considered in this context., If we examine the powers of Parliament under Article 3, it provides that Parliament may by law inter alia form new States, diminish the area of any State, and alter the boundaries or names of existing States. Explanation I to Article 3 provides that in clauses (a) to (e) a 'State' includes Union Territory, which implies that the power of Parliament under Article 3(a) to form a new State or alter the boundary of a State includes the power to form a new Union Territory. Explanation II notes that the power under clause (a) implies that Parliament can form a Union Territory by uniting parts of any State or Union Territory to any other State or Union Territory., The question before us is whether Article 3 contemplates the power to convert a State into a Union Territory, thereby abolishing its character as a State. The Supreme Court of India, in State of West Bengal v. Union of India, observed that it would be incorrect to presume that absolute sovereignty remained vested in the States. The Court noted that there was no concept of dual (State and national) citizenship in India, no independent Constitutions of States, and that Article 3 gave Parliament wide powers to alter the boundaries of States. Similarly, in Babulal Parate v. State of Bombay, the Court reiterated that States have no independent sovereignty and that Parliament may vary or alter the boundaries of a State simply by making law, without invoking the procedure of constitutional amendment. We agree with these findings. Since the petitioners concede that the power under Article 3 extends to carving out a Union Territory from a State, the respondents claim that this power must also extend to converting the State into a Union Territory in toto. The petitioners contend that such a move would be contrary to the federal principle, which guarantees a two‑tier democracy and continuing statehood under the Constitution of India. In response, the Solicitor General contended that the federal structure is not disturbed by converting Jammu, Kashmir, and Ladakh into Union Territories, as Article 239A, an entrenched part of the federal scheme, would apply to the newly formed Union Territories.
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However, at present, we need not examine this aspect in greater depth as the Solicitor-General assured the Supreme Court of India of the Union's commitment made on the floor of the House that the Statehood of Jammu and Kashmir would be restored in the near future upon elections being held., Suspension of the first proviso to Article 3 was permissible during President's Rule. The second proviso to Article 3, as was applicable to the erstwhile State, was not in force after the issuance of C.O. 272 on 5.8.2019. The President was liable to refer the Bill introduced in 2019 to the State Legislature of the erstwhile Jammu and Kashmir to express their views in compliance with the first proviso to Article 3. However, during the operation of the President's Rule, which I have found to be valid, the functions of the State Legislature were being performed by the Parliament. Therefore, it was not possible to take the views of the State Legislature. We may refer to the judgment in Manohar Lal case on the legal proposition laid down., If we turn to the observations of Justice H.R. Khanna (as he then was) of the Delhi High Court, it was opined that the exercise of power of the State Legislature under Article 3 by the Parliament, in view of Article 356 being imposed, was permissible for purposes of reorganising the State of Punjab in 1956. The need to consult the views of the concerned State Legislature was dispensed with in the absence of a duly constituted State Legislature., In conclusion, Sections 3 and 4 of the Reorganisation Act, which was the effect of the exercise of power under Article 3 of the Constitution of India, is valid., On the basis of the analysis, I record the conclusions as follows: In light of the Supreme Court of India's prior finding in Prem Nath Kaul, the State of Jammu and Kashmir retained an element of internal sovereignty despite Maharaja Hari Singh signing the Instrument of Accession with the Dominion. Article 370 of the Constitution recognised this internal sovereignty by recognising the Constituent Assembly of the State. A combination of factors, such as Article 370's historical context, its text, and its subsequent practice, indicate that Article 370 was intended to be a temporary provision. Article 370(3) contained the mechanism to bring the temporary arrangement to an end, and in turn, to de‑recognise the internal sovereignty of the State and apply the Constitution of India in toto. Since Article 370 is meant to be a temporary arrangement, it cannot be said that the mechanism under Article 370(3) came to an end after the State Constituent Assembly was dissolved. The power of the President under Article 370(3) was unaffected by the dissolution of the Constituent Assembly of Jammu and Kashmir. The President could exercise that power anytime after the dissolution of the Constituent Assembly of Jammu and Kashmir, in line with the aim of full integration of the State. Hence, C.O. 273, which declares that Article 370 shall cease to operate except as provided, and was issued under Article 370(3), is valid. The power to issue C.O. 272 without the concurrence of the Government of the State is valid, as the power of the President is not limited by the concurrence of the Government of the State in this case. The power under Article 370(1)(d) read with Article 367 cannot be used to do indirectly what cannot be done directly. The power to make modifications under Article 370(1)(d) cannot be used to amend Article 370 and Article 367, which is an interpretation clause, cannot be used to alter the character of a provision. Therefore, Paragraph 2 of C.O. 272, which amends Article 367(4), is ultra vires Article 370. However, the President had the power to apply all provisions of the Constitution of India to Jammu and Kashmir under Article 370(1)(d), which is similar to the power under Article 370(3). Therefore, the remainder of Paragraph 2 of C.O. 272 is valid. President's Rule can be imposed after the dissolution of the State Assembly since the Presidential emergency was predicated on the failure of the constitutional machinery, which took place prior to the Governor's Rule and the dissolution of the Assembly by the Governor of Jammu and Kashmir was only a subsequent consequence. Once the Presidential proclamation has been approved by both Houses of Parliament, so as to reflect the will of the people, the President has the power under Article 356 to make irreversible changes, including the dissolution of the State Assembly. The imposition of an emergency highlights an extraordinary situation and, in the absence of the State Government and State Legislature, the power of these elected organs must lie with any other competent authority. Article 357 does not bar the President from exercising the non‑legislative powers of the State Legislature, and Article 356(1)(b) allows the Parliament of India to exercise all powers of the State Legislature without distinguishing between legislative and non‑legislative powers of the State Legislature. Therefore, the President is permitted to exercise both legislative and non‑legislative functions of the State Legislature. However, a proclamation of emergency is bound by judicial and constitutional scrutiny to ensure the exercise of emergency powers is not unfettered and absolute. The challenge to Section 4 of the Jammu and Kashmir Reorganisation Act on the touchstone of Article 3 is not required to be debated on account of the assurance on behalf of the Government of India that the Statehood of Jammu and Kashmir would be restored on elections being held. It is imperative to ascertain the views of the State Legislature under the first proviso to Article 3 if the proposed Bill affects the area, boundaries or name of the State. However, in the instant case, since the State of Jammu and Kashmir was under President's Rule and the State Legislature was already dissolved, the functions of the State Legislature were performed by the Parliament of India. Hence, it was not possible to ascertain the views of the State Legislature. It follows that Section 3 of the Reorganisation Act is valid., The Valley of Kashmir carries a historical burden. It has a social context. Thus, in evolving a constitutional status of the region, it is difficult to segregate the aforesaid. We, the people of Jammu and Kashmir, are at the heart of the debate. They have carried the burden as victims of the conflict for several decades originating from 1947 with the invasion of the Valley. Intervening political circumstances did not permit a redressal to the fullest extent of the invasion. The consequences remained in terms of parts of Kashmir being occupied by other countries. The second round of insurgency holds its origin in the latter part of the 1980s. There was a troubled situation at the ground level, which was apparently not redressed. It culminated in the migration of one part of the population of the State in 1989‑1990. It is something that our country has had to live with and without any redressal for the people who had to leave their home and hearth. It was not a voluntary migration., The situation became so aggravated that the very integrity and sovereignty of our country was endangered and, thus, the Army had to be called in. Armies are meant to fight battles with enemies of the State and not really to control the law and order situation within the State but then, these were peculiar times. The entry of the Army created its own ground realities in their endeavour to preserve the integrity of the State and the nation against foreign incursions. The men, women and children of the State have paid a heavy price., During my travels home over the years, I have observed the social fabric waning, and the consequences of intergenerational trauma on an already fractured society. I cannot help but feel anguish for what peoples of the region have experienced and am constrained to write this Epilogue., In order to move forward, the wounds need healing. What is at stake is not simply preventing the recurrence of injustice, but the burden of restoring the region's social fabric to what it has historically been based on coexistence, tolerance and mutual respect. It is worth noting that even the partition of India in 1947 did not impair Jammu and Kashmir's communal and social harmony. In this context, Mahatma Gandhi is famously quoted to have said that Kashmir was a ray of hope for humanity!, The first step towards this is to achieve a collective understanding of the human rights violations perpetrated both by State and non‑State actors, against peoples of the region. There have been numerous reports documenting these incidents over the years. Yet, what is lacking is a commonly accepted narrative of what happened, or in other words, a collective telling of the truth. Internationally, the right of victims of human rights violations to the truth is an end in itself. It encompasses a structural investigation of the events and socio‑political structures that led to the atrocity, the particular circumstances of individual suffering, and an authoritative reporting of the results of the investigation. Additionally, truth‑telling provides an opportunity for victims to narrate their stories, which facilitates an acknowledgement from those responsible for perpetuating the wrongs, and from society as a whole. This paves the way for reconciliation., While there are different ways of achieving these objectives, truth and reconciliation commissions have been particularly effective globally. South Africa's truth and reconciliation commission was set up to investigate human rights violations perpetrated during the period of the Apartheid regime. It served as a means of reckoning or catharsis for victims, and fostered peace‑building. Reflecting on its success, Albie Sachs, J notes: As a result of the Truth and Reconciliation Commission (TRC), the private sorrow and grief of tens of thousands was publicly acknowledged in an embracing and personalised way. Another form of acknowledgement emerged from the perpetrators themselves. They had to come forward openly in front of the television cameras, owning up to their crimes. Finally, there was acknowledgement by the whole country that these things happened and can happen again that we needed to fit all these facts together into some kind of significant pattern which would enable us to understand their genesis and do what we could to minimise any possibility of their recurrence., In the past, calls for setting up a truth and reconciliation commission have also been echoed by different sections of the Valley., In view of the in‑roads made globally, and endogenous requests for truth and reconciliation, I recommend the setting up of an impartial truth and reconciliation commission (Commission). The Commission will investigate and report on the violation of human rights both by State and non‑State actors perpetrated in Jammu and Kashmir at least since the 1980s and recommend measures for reconciliation., This Commission should be set up expediently, before memory escapes. The exercise should be time‑bound. There is already an entire generation of youth that has grown up with feelings of distrust and it is to them that we owe the greatest duty of reparation. At the same time, considering the significance of the matter and the sensitivities involved, it is my view that it is for the Government to devise the manner in which this should be set up, and to determine the best way forward for the commission., I am alive to the challenge that recommending the setting up of a truth and reconciliation is beyond the realm of the Supreme Court of India. However, I am of the view that transitional justice, and its constituents, are facets of transformative constitutionalism. Globally, constitutionalism has evolved to encompass responsibility of both State and non‑State actors with respect to human‑rights violations. This includes the duty to take reasonable steps to carry out investigations of violations. It is in this context that the proposed truth and reconciliation commission accords with constitutionalism., Our Constitution is no different, and is designed to ensure that courts offer justice in situations where fundamental rights have been violated. In doing justice, historically, our courts have been sensitive to the social demands of our polity and have offered flexible remedies. In Vishaka and Others v State of Rajasthan, the Supreme Court of India issued guidelines to address workplace sexual harassment in the absence of an enacted law, which operated until the Parliament enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. As a word of caution, the Commission, once constituted, should not turn into a criminal court and must instead follow a humanised and personalised process enabling people to share what they have been through uninhibitedly. It should be based on dialogue, allowing for different viewpoints and inputs from all sides. In the context of South Africa's truth and reconciliation commission, Albie Sachs, J observed: Judges do not cry. Archbishop Tutu cried. It was not a court of law in the sense of an austere institution making highly formalised findings. It was an intensely human and personalised body, there to hear in an appropriately dignified setting what people had been through. There were comforters sitting next to the witnesses in a court of law; no one is there to help the witness, to pat the shoulder, or provide water or tissues when the person weeps. Frequently the sessions would start with a song in beautiful African harmony intended to give a sense of encouragement and support to everybody present. Or it could begin with prayers. And thereafter people spoke and spoke in all the regions and in all the languages of the country. The testimony was televised, and thus the nation became witness to what had happened and heard the stories directly from the mouths of the persons concerned. Those who spoke were not complainants in a court denouncing accused persons in the dock. Nor were they litigants demanding damages for themselves, so that the greater the loss, the greater the sum they would receive., Taking a leaf out of South Africa's book, the principles of ubuntu, or the art of humanity, and inclusiveness should be central to the process. This will facilitate a reparative approach that enables forgiveness for the wounds of the past, and forms the basis of achieving a shared national identity. Needless to say, the Commission is only one of the many avenues towards the goal of systemic reform. It is my sincere hope that much will be achieved when Kashmiris open their hearts to embracing the past and facilitate the people who were compelled to migrate to come back with dignity. Whatever has been, has been but the future is ours to see., Sanjay Kishan Kaul New Delhi. December 11, 2023., With apologies to the song, Que Sera, Sera, a song by Jay Livingston and Ray Evans. A judgment is a decision which gives reasons to arrive at and reach the conclusion. We have two judgments. The judgment of Honorable Dr. Justice D.Y. Chandrachud, the Chief Justice, is scholarly and it elaborately annotates the complex legal issues. The judgment authored by Honorable Mr. Justice Sanjay Kishan Kaul pragmatically demystifies the factual and legal position. Both judgments are in seriatim and uniformly agree that Article 370 of the Constitution of India was a feature of asymmetric federalism and not sovereignty. Article 370 was enacted as a transitional provision and did not have permanent character. The abrogation of Article 370 does not negate the federal structure, as the citizens living in Jammu and Kashmir do and will enjoy the same status and rights as given to citizens residing in other parts of the country. Paragraph (2) of C.O. 272 by which Article 370 was amended by taking recourse to Article 367 is ultra vires and bad in law, albeit can be sustained in view of the corresponding power under Article 370(1)(d). Most importantly, Article 370 has been made inoperative in terms of clause (3) to Article 370. Lastly, C.O. 273 is valid., I find it difficult to state that I agree with the reasoning in one and not the other. I, therefore, respectfully concur with the two judgments. However, I would add with particularisation., Dr. Justice D.Y. Chandrachud has elaborately examined and interpreted the power of the President of India under Article 356 of the Constitution of India and disseminated the opinions of Mr. Justice B.P. Jeevan Reddy and Mr. Justice P.B. Sawant in S.R. Bommai and Others v. Union of India and Others. Reference can also be made to Rameshwar Prasad and Others (VI) v. Union of India and Another. I respectfully agree., I also agree with the observations recorded by Dr. Justice D.Y. Chandrachud taking record of the statement on behalf of the Union of India for restoration of the statehood of the Union Territory of Jammu and Kashmir, while upholding the creation of the Union Territory of Ladakh., Union Territories are normally geographically small territories, or may be created for aberrant reasons or causes. Conversion of a State into a Union Territory has grave consequences, amongst others, it denies the citizens of the State an elected state government and impinges on federalism. Conversion or creation of a Union Territory from a State has to be justified by giving very strong and cogent grounds. It must be in strict compliance with Article 3 of the Constitution of India., Mr. Justice Sanjay Kishan Kaul has explained the effect of Article 370(3) and why it continued to operate after dissolution of the Constituent Assembly of the State. I respectfully agree with the detailed reasoning given by Mr. Justice Sanjay Kishan Kaul on this aspect.
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Writ Petition(s) (Civil) No(s). 699/2016 Date: 10-08-2021. These matters were called on for hearing today. Amicus Curiae: Mr Vijay Hansaria, Senior Advocate. For Petitioners: Mr Vikas Singh, Senior Advocate; Mr Ashwani Kumar Dubey, Advocate on Record. Date: 10-08-2021. Ms Kamini Jaiswal, Advocate; Mr Abhimanue Shrestha, Advocate on Record; Ms Rani Mishra, Advocate. For Respondents: Mr Tushar Mehta, Solicitor General; Mr Aman Lekhi, Additional Solicitor General; Mr Rajat Nair, Advocate; Ms Neela Kedar Gokhale, Advocate; Mr Mohd Akhil, Advocate; Ms Sunita Sharma, Advocate; Mr Arvind Kumar Sharma, Advocate on Record; Mr Amrish Sharma, Advocate on Record; For State of Haryana: Mr Anil Grover, Senior Additional Advocate General; Mr Samar Vijay Singh, Advocate on Record; Ms Noopur Singhal, Advocate; Mr Rahul Khurana, Advocate; Mr Sanjay Kumar Visen, Advocate on Record; For State of Himachal Pradesh: Mr Abhinav Mukerji, Additional Advocate General; Mrs Bihu Sharma, Advocate; Ms Pratishtha Vij, Advocate; Mr Akshay C Shrivastava, Advocate; For Raj. High Court: Mr Abhinav Mukerji, Additional Advocate General; Mrs Bihu Sharma, Advocate; Ms Pratishtha Vij, Advocate; Mr Akshay C Shrivastava, Advocate; For State of Jharkhand: Mr Tapesh Kumar Singh, Additional Advocate General; Mr Aditya Pratap Singh, Advocate; Mrs Bhaswati Singh, Advocate; For High Court of Kerala: Mr P N Ravindran, Senior Advocate; Mr T G Narayanan Nair, Advocate on Record; For State of Maharashtra: Mr Sachin Patil, Advocate on Record; Mr Rahul Chitnis, Advocate; Mr Aaditya A Pande, Advocate; Mr Geo Joseph, Advocate; For State of Andhra Pradesh: Mr Mahfooz A Nazki, Advocate on Record; Mr Polanki Gowtham, Advocate; Mr Shaik Mohamad Haneef, Advocate; Mr T Vijaya Bhaskar Reddy, Advocate; Mr Amitabh Sinha, Advocate; Mr K V Girish Chowdary, Advocate; For State of Meghalaya: Mr Avijit Mani Tripathi, Advocate on Record; Mr Shaurya Sahay, Advocate; Ms Rekha Bakshi, Advocate; For State of Kerala: Mr G Prakash, Advocate on Record; Mr Jishnu M L, Advocate; Ms Priyanka Prakash, Advocate; Ms Beena Prakash, Advocate; Mr Pranav Sachdeva, Advocate on Record; Mr Balaji Srinivasan, Advocate on Record; Mr Mukesh Kumar Maroria, Advocate on Record; For R No. 2 (ECI): Mr Sidhant Kumar, Advocate; Mr Sahil Tagotra, Advocate on Record; For R No. 4: Mr Shiv Ram Sharma, Advocate on Record; Mr Vishwaditya Sharma, Advocate; For State of Gujarat: Ms Deepanwita Priyanka, Advocate; Mr Aniruddha P Mayee, Advocate on Record; For State of Assam: Mr Shuvodeep Roy, Advocate on Record; For State of Tripura: Mr Shuvodeep Roy, Advocate on Record; Mr Kabir Shankar Bose, Advocate; For High Court of Allahabad: Mr Sunny Choudhary, Advocate on Record; For Intervenor: Mr Prashanto Chandra Sen, Senior Advocate; Mr Kaustubh Singh, Advocate; Mrs Anil Katiyar, Advocate on Record; Mr Sibo Sankar Mishra, Advocate on Record; For State of Manipur: Mr Pukhrambam Ramesh Kumar, Advocate on Record; Ms Anupama Ngangom, Advocate; Mr Karun Sharma, Advocate; Mr Kabir Dixit, Advocate on Record; For High Court of Jammu and Kashmir: Mr Anupam Raina, Advocate on Record; Mr Sunando Raha, Advocate; For State of Punjab: Mr Karan Bharihoke, Advocate on Record; Mr Siddant Sharma, Advocate; Ms Neha Sahai Bharihoke, Advocate; Ms Hemantika Wahi, Advocate on Record; For State of Sikkim: Mr Avneesh Arputham, Advocate; High Court: Messrs Arputham Aruna and Co, Advocate on Record; For High Court of Delhi: Mr Venkatesh Rao, Advocate; Mr Rahul Mishra, Advocate; Ms Ananya Khandelwal, Advocate; Ms Sangeetha M Biju, Advocate; Mrs Swarupama Chaturvedi, Advocate on Record; For State of Uttar Pradesh: Mr Sanjay Kumar Tyagi, Advocate on Record; For High Court of Chhattisgarh: Mr Sharan Thakur, Advocate; Mr Mahesh Thakur, Advocate on Record; Mr Siddharth Thakur, Advocate; For High Court of Karnataka: Mr Apoorv Kurup, Advocate on Record; Ms Nidhi Mittal, Advocate; Mr Kunal Chatterji, Advocate on Record; Mr Satish Pandey, Advocate on Record; Ms Rachana Srivastava, Advocate on Record; Mr Anil Shrivastav, Advocate on Record; For State of Karnataka: Mr Raghvendra Kumar, Advocate; For State of Sikkim: Mr Anand Kumar Dubey, Advocate; Mr Nishant Verma, Advocate; Mr Narendra Kumar, Advocate; Intervenor-in-person; Mr Anandh Kannan N, Advocate; For High Court of Jharkhand: Mr Ambhoj Kumar Sinha, Advocate on Record; Ms Uttara Babbar, Advocate on Record; Mr Manan Bansal, Advocate; For State of Maharashtra: Mr Siddhesh Kotwal, Advocate; Ms Ana Upadhyay, Advocate; Ms Manya Hasija, Advocate; Mr Nirnimesh Dube, Advocate; Mr Manoj Gorkela, Advocate; Ms Apurva, Advocate; Ms Tara Pokhriyal, Advocate; Ms Preeti Nair, Advocate; For Messrs Gorkela Law Office: Ms Sneha Kalita, Advocate on Record; Mr Abhishek Atrey, Advocate on Record; For High Court of Madhya Pradesh: Mr Arjun Garg, Advocate on Record; Mr Aakash Nandolia, Advocate; Mr Ashok Mathur, Advocate on Record; For High Court of Tripura: Mr Naresh K Sharma, Advocate on Record; For State of Karnataka: Mr V N Raghupathy, Advocate on Record; Mr Md Apzal Ansari, Advocate; High Court of Karnataka: For State of Nagaland: Mrs K Enatoli Sema, Advocate on Record; Mr Amit Kumar Singh, Advocate; Ms Chubalemla Chang, Advocate; For Union Territory of Jammu and Kashmir: Ms Taruna Ardhendumauli Prasad, Advocate on Record; Mr Parth Awasthi, Advocate; Mr Abhimanue Shrestha, Advocate on Record; Ms Radhika Gautam, Advocate on Record; For State of West Bengal: Mr Suhaan Mukerji, Advocate; Mr Vishal Prasad, Advocate; Mr Nikhil Parikshith, Advocate; Mr Abhishek Manchanda, Advocate; Mr Sayandeep Pahari, Advocate; For Messrs PlR Chambers and Co.: Mr Ranjan Mukherjee, Advocate on Record; For Union Territory of Andaman and Nicobar Islands: Ms G Indira, Advocate on Record; Mr M K Mondal, Advocate; Mr Gandeepan, Advocate; Mr Shantanu Sagar, Advocate on Record., Upon hearing the counsel, the Supreme Court of India made the following. The Supreme Court of India is convened through video conferencing. At the commencement of hearing, Mr Tushar Mehta, learned Solicitor General appearing on behalf of the Union of India seeks further time to comply with the directions passed by this Court on 10 September 2020, 16 September 2020, 6 October 2020 and 4 November 2020 regarding filing of status report concerning pending cases against legislators (sitting or former). Two weeks time is granted to the learned Solicitor General to file response or affidavit in compliance of the directions given by this Court vide orders dated 10 September 2020, 16 September 2020, 6 October 2020 and 4 November 2020 with a copy in advance to the learned amicus curiae within ten days. We have heard Mr Vijay Hansaria, learned amicus curiae, Mr Tushar Mehta, learned Solicitor General as also the learned counsel for the parties. At the outset we may note that the learned amicus has filed his thirteenth report dated 9 August 2021. The report, inter alia, addresses various concerns which are broadly indicated as under: Misuse of the prosecutor's power to withdraw cases under Section 321 of the Code of Criminal Procedure; Continuity of tenure of judicial officers; Jurisdiction of Special Court (Member of Parliament/Member of Legislative Assembly) to try cases against legislators elected from other states; Jurisdiction of Special Courts with respect to cases triable by magistrates; Trial of cases where a Member of Parliament/Member of Legislative Assembly is the complainant; Safe and secure witness examination facility., We are inclined to address the first two issues by this order as these issues are of immediate concern and may be easily disposed of. Issues three and four give rise to substantive questions of law which may require elaborate arguments and will be taken up on a subsequent date., Misuse of Prosecutor's Power under Section 321 of the Code of Criminal Procedure. Learned amicus has drawn our attention to various instances across the country wherein State Governments have resorted to withdrawal of numerous criminal cases pending against Members of Parliament/Members of Legislative Assembly by utilising the power vested under Section 321 of the Code of Criminal Procedure. It merits mentioning that the power under Section 321 is a responsibility to be utilised in public interest and cannot be used for extraneous and political considerations. This power is required to be utilised with utmost good faith to serve the larger public interest. Recently, this Court in State of Kerala v. K Ajith, (2021) SCC Online SC 510, held as under: The principles which emerge from the decisions of this Court on the withdrawal of a prosecution under Section 321 of the Code of Criminal Procedure can now be formulated: (i) Section 321 entrusts the decision to withdraw from a prosecution to the public prosecutor but the consent of the court is required for a withdrawal of the prosecution; (ii) The public prosecutor may withdraw from a prosecution not merely on the ground of paucity of evidence but also to further the broad ends of public justice; (iii) The public prosecutor must formulate an independent opinion before seeking the consent of the court to withdraw from the prosecution; (iv) While the mere fact that the initiative has come from the government will not vitiate an application for withdrawal, the court must make an effort to elicit the reasons for withdrawal so as to ensure that the public prosecutor was satisfied that the withdrawal of the prosecution is necessary for good and relevant reasons; (v) In deciding whether to grant its consent to a withdrawal, the court exercises a judicial function but it has been described to be supervisory in nature. Before deciding whether to grant its consent the court must be satisfied that: (a) The function of the public prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes; (b) The application has been made in good faith, in the interest of public policy and justice, and not to thwart or stifle the process of law; (c) The application does not suffer from such improprieties or illegalities as would cause manifest injustice if consent were to be given; (d) The grant of consent sub‑serves the administration of justice; and (e) The permission has not been sought with an ulterior purpose unconnected with the vindication of the law which the public prosecutor is duty bound to maintain; (vi) While determining whether the withdrawal of the prosecution sub‑serves the administration of justice, the court would be justified in scrutinising the nature and gravity of the offence and its impact upon public life especially where matters involving public funds and the discharge of a public trust are implicated; and (vii) In a situation where both the trial judge and the revisional court have concurred in granting or refusing consent, this Court while exercising its jurisdiction under Article 136 of the Constitution would exercise caution before disturbing concurrent findings. The Court may in exercise of the well‑settled principles attached to the exercise of this jurisdiction, interfere in a case where there has been a failure of the trial judge or of the High Court to apply the correct principles in deciding whether to grant or withhold consent. In view of the law laid down by this Court, we deem it appropriate to direct that no prosecution against a sitting or former Member of Parliament/Member of Legislative Assembly shall be withdrawn without the leave of the High Court in the respective suo‑motu writ petitions registered in pursuance of our order dated 16 September 2020. The High Courts are requested to examine the withdrawals, whether pending or disposed of since 16 September 2020, in light of guidelines laid down by this Court., Continuity of Tenure for Judicial Officer. This Court vide order dated 16 September 2020 had recorded the submissions of the learned amicus curiae as under: The High Courts would designate a judicial officer for all such cases, who shall try these cases on a priority basis. The judicial officer can be allotted other work depending on the workload, number and nature of criminal cases against MPs/MLAs. The judicial officer so designated shall have continuity of tenure for a minimum period of two years. It may be noticed that during the intervening period, we faced a pandemic which scuttled many courts in effectively conducting trials, or recording evidence or hearing applications. In this context, the Registrar Generals of all High Courts are directed to furnish the following information in the form of a table: In the meanwhile, to ensure expeditious disposal of pending cases, it is necessary for this Court to direct the officers presiding over Special Courts or CBI Courts involving prosecution of MPs or MLAs to continue in their present posts until further orders. This direction, barring transfer of judicial officers, will be subject to their superannuation or death. If any further necessity or emergency arises, the Registrar Generals of the High Courts are at liberty to make an application before us for retention or to relieve those officers. List the matter on 25 August 2021 for arguments on other issues indicated above. In the meantime, the Registry is directed to serve copies of the interim applications immediately to the learned amicus curiae, which have been filed recently and not been served to him. Liberty is granted to Ms Kamini Jaiswal, learned counsel appearing on behalf of the applicant in interim applications Nos. 51582/2021, 51586/2021 and 51587/2021 in Writ Petition (Civil) No. 699/2016 to make request to the High Court of Gujarat to adjourn the case which is stated to be listed for hearing on 23 August 2021.
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Press Release dated 01.11.2020 The General Council of the Bar Council of India has considered the Order dated 21.10.2020 passed by the Honourable Delhi High Court in W. P. (C) No.8307/2020 titled as Samarth Nayar & Ors. Vs. Controller of Examinations, Guru Gobind Singh Indraprastha University & Ors. A perusal of Paragraph 9 of the above referred Order reveals that the respondent No.1 (Controller of Examinations, Guru Gobind Singh Indraprastha University) has clarified that the students pursuing law degrees who have approached the court by filing the present petition would be free, not to take the physical exam, which are being held from 02.11.2020. It has been further stated by the respondent No.1 in the said paragraph that the students who do not wish to take the said exams may not give the exam on 02.11.2020 without any penal consequences. Such students would be allowed to give subsequent re‑appear exams which will be held once the colleges start functioning properly., In Paragraph 10 of the said Order, the Honourable Delhi High Court held, keeping in view the above stand of respondent No.1 and the clarification that no penal consequences will follow on the petitioners, that the choice is left to the petitioners. If they wish to give the exam commencing on 02.11.2020 they are free to do so. If for some reason they do not feel appropriate to give the said exam they will be free to appear in the re‑appear exam which will be held subsequently., It is observed by the Council that if physical exams as contemplated by the University are held with effect from 02.11.2020 and if the said exams are held without any penal consequences to any student who is unable to appear in the said exam, no student shall be prejudiced or affected and they will get an opportunity to appear in the exam again after physical reopening of the college/university as contemplated in the Circular/Press Release of the Bar Council of India dated 27.05.2020 and 09.06.2020 respectively, which was further clarified by the Bar Council of India Resolution dated 05.10.2020. Furthermore, the Honourable Supreme Court of India, vide its judgment dated 28.08.2020 in Writ Petition (Civil) No.724/2020, 739/2020, and Special Leave Petition (C) No.10042/2020 (Diary No. 15056/2020), has clearly given a right to the respective State Disaster Management Authority in view of the COVID‑19 pandemic to make requests to the concerned authorities for postponing the physical exam if they deem fit, which request will have to be heard by the authority concerned., Accordingly, the Council hereby modifies the Bar Council of India's Resolution/Circular/Press Release dated 27.05.2020, 09.06.2020, and 05.10.2020 to provide an option to Universities/Centres of Legal Education to conduct physical examination with the No Objection Certificate of the State Government and State Disaster Management Authority, by giving the option to such law students who are unable and/or unwilling to appear in such physical exams till the COVID‑19 pandemic is averted, and having appeared therein, who are unable to clear such exam, to appear in the re‑appear exam after physical reopening of the University/Centres of Legal Education., The Council further places on record the fact that the resolution dated 27.05.2020, later clarified by the press note dated 09.06.2020 and the resolution of 05.10.2020 respectively, was passed believing that the COVID‑19 pandemic would subside sooner rather than later. However, the pandemic still persists with no early respite in sight. The Council therefore resolves that examination for all intermediate as well as final year law students/classes may be held online, if Universities/Law Colleges are able to hold it online, and if adequate infrastructure and other facilities for students are available., It is further resolved that if an online exam is so conducted and any student is unable to take it, or having appeared therein is unable to pass such exam or subject paper, such students shall be entitled to take the re‑appear exam or paper whenever it is held, preferably within one month of physical reopening of the Universities/Colleges after the pandemic is averted. This would leave no cause of grievance to any candidate and this recourse will reduce the anxiety of the candidates as it would provide such candidates who are averse to taking the physical exam during the COVID‑19 pandemic with an option to take the exam on a later date within one month of physical reopening of Law Colleges/Universities when normalcy resumes and the pandemic situation no longer exists, and/or an option to also appear in online exams presently, if the University/Center of Legal Education is able to conduct such online examination and the students are comfortable with it. If any candidate is unable or unwilling to appear in the online exam owing to technical or infrastructural difficulties, and is also averse to appear in any physical exam which may be held during the pandemic period owing to apprehension of getting infected with COVID‑19, or having appeared therein is unable to pass such offline/online exam, they can always appear in such physical exam after the pandemic is over without being penalized or prejudiced., Furthermore, as stated in the previous Circular/Press Release, all students affected by the pandemic who are promoted to the next year/semester without their promotion being affected, and who are unable to appear in or having appeared are unable to clear any presently held (during pandemic) offline/online exam and/or the physical exam to be preferably held within one month of physical reopening of Universities/Colleges, shall also be provided with the opportunity to clear such papers before the grant of law degree, immediately after the final year examination, without any penalisation or prejudice being caused to them., In view of the above discussion and observation, the resolution dated 27.05.2020 and the clarification issued by the Bar Council of India on 09.06.2020 and 05.10.2020 stand modified accordingly.
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438 Criminal Procedure Code No. 5658 of 2021 Applicant: Shiv Prasad @ Shiv Prasad Harijan and Another Opposite Party: State of Uttar Pradesh and Another Counsel for Applicant: Ashok Kumar Yadava, Surya Prakash Singh Counsel for Opposite Party: G.A. Honourable Rajeev Singh, Judge., Allahabad High Court convened through video conferencing. The court heard learned counsel for the applicant, learned Additional Government Advocate and perused the record., The present bail application has been filed on behalf of the applicant in FIR/Case Crime No. 0122 of 2021, under the Indian Penal Code, Section 7 of the Criminal Law Amendment Act and Sections 131, 132(3), 135(A) of the People's Representation Act, Police Station Kandhai, District Pratapgarh, with the prayer to enlarge them on anticipatory bail., The submission of learned counsel for the applicants is that the applicants are innocent persons and have been falsely implicated in the case. He further submitted that applicant No. 1 is a reporter at district level of the Hindi newspaper 'Pratap Kiran'. On 19 April 2021 the election of the gram panchayat was scheduled and he was covering the news at the polling booth in village Utrash. He reported the news about irregularities at the polling booth by the authorities and influential people through a Twitter handle annexed as Annexure-4 to the bail application. He further submitted that due to the coverage the authorities were annoyed and police personnel reached the spot and started beating the voters when objections were raised, and thereafter FIR in question was lodged against the villagers and also dragged the applicants and their family members only because applicant No. 1 was covering the news in relation to the election and mismanagement of the authorities. He further submitted that a general allegation of firing is made against the villagers and the police are trying to arrest the applicants due to annoyance as applicant No. 1 was covering the activities of the police personnel and also flashing the same on the Twitter handle. The applicants are ready to cooperate in the investigation; therefore, at this stage they are entitled to anticipatory bail., Learned Additional Government Advocate opposes the prayer of the applicants and submits that as per the FIR and instructions, the villagers along with the applicants tried to destroy the ballot box and firing was also done by the villagers; therefore, the applicants are not entitled to anticipatory bail., Keeping in view the reasons stated above as well as the facts and circumstances of the case, it is evident that mismanagement of the authorities was flashed on Twitter by applicant No. 1 who is the journalist and the other applicant is related to him; therefore, the applicants are entitled to interim bail. Till the next date of listing, in the event of arrest of the applicants, namely Shiv Prasad @ Shiv Prasad Harijan and Ramdhari in the aforesaid case, they shall be released forthwith by the Station House Officer of the concerned police station upon furnishing a personal bond of Rs 50,000 with the following conditions: the applicants shall make themselves available for interrogation by a police officer as and when required; the applicants shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the court or to any police officer; the applicants shall not leave the district concerned without the prior permission of the court., However, it is directed that the applicants will join and participate in each and every aspect of the investigation and will lend full assistance to the investigating agency, even with regard to discovery of fact if and when required by the investigating agency. The case is listed on 19 July 2021. On the next date this application shall be decided finally. In the meantime, learned Additional Government Advocate may file a counter affidavit., The party shall file a computer‑generated copy of the order downloaded from the official website of the Allahabad High Court, self‑attested by it along with a self‑attested identity proof of the persons (preferably Aadhaar Card) mentioning the mobile numbers to which the Aadhaar Card is linked before the concerned court, authority or official. The concerned court, authority or official shall verify the authenticity of the computerized copy of the order from the official website of the Allahabad High Court and shall make a declaration of such verification in writing.
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Constitutional Writ Jurisdiction Appellate Side Present: Hon'ble Justice Amrita Sinha. WPA No. 1126 of 2022. Indian Jute Mills Association and Another versus Union of India and Others for the writ petitioners. Abhrajit Mitra, Senior Advocate; Rajshree Kaharia, Advocate; Sarvopriyo Mukherjee, Advocate; Satadeep Bhattacharyya, Advocate; Uttam Sharma, Advocate for Union of India; Dhiraj Trivedi, Assistant; S.G. Dibashis Basu, Advocate; Arun Bandyopadhyay, Advocate for Jute Commissioner; Jayanta Kumar Mitra, Senior Advocate; Joydip Banerjee, Advocate; Rahul Karmakar, Advocate for Respondent No. 3; Saikat Basu, Advocate; Abhishek Acharya, Advocate for the State; Susovan Sengupta, Advocate; Manas Kumar Sadhu, Advocate for Respondent No. 5; Soumya Mazumdar, Advocate; Kumar Gupta, Advocate; Pranav Sharma, Advocate. Hearing concluded on 25 April 2022. Judgment on 11 May 2022., The petitioner No. 1, the Indian Jute Mills Association, is a company incorporated under the Companies Act, 1956, represented by its Secretary, petitioner No. 2. The association has thirty‑six members, each representing one jute mill, and was incorporated to promote the welfare and interest of the jute industry. The petitioners are aggrieved by the notification dated 30 September 2021 published by the Jute Commissioner, Ministry of Textiles, in the Gazette of India (Extraordinary), whereby the Jute Commissioner fixed the reasonable price of jute in all forms to be in force until 30 June 2022 or until further orders, whichever is earlier. The notification was issued under Clause 3(3) of the Jute and Jute Textiles Control Order, 2016 (the Control Order). It prohibits any dealer, trader, agency or supplier from selling or offering to sell, or any person from purchasing or offering to purchase, raw jute at a price exceeding the reasonable price mentioned. The reasonable price for raw jute of the TD‑5 variety was fixed at Rs 6,500 per quintal in West Bengal., The petitioners contend that the price fixed by the Jute Commissioner is not the reasonable market price for raw jute of the said variety. They argue that raw jute is available in the market at a price higher than the notified price and that the Jute Commissioner lacks the power to direct the Jute Balers Association to publish quotations at a fixed price rather than the actual market price. They further contend that the reasonable price was fixed without considering ground realities, making it impractical and impossible for sellers and purchasers to implement. The petitioners assert that the Jute Commissioner should ensure raw jute is available at the notified rate and, if sold at a higher rate, should take appropriate action against the persons responsible. They also point out that the notification does not consider freight, transportation, handling and storage costs, rendering the price absurdly low and unimplementable even with coercive measures., The petitioners pray for a writ of mandamus commanding the Jute Commissioner to withdraw the letter dated 20 October 2021 directing the Jute Balers Association to publish a price quotation of Rs 6,500 per quintal irrespective of the market price. They also seek a direction that raw jute be made available to jute mills at the notified rate and that the Jute Balers Association and A.M. Mair and Company Private Limited publish quotations reflecting the actual market price. In the alternative, they request that the Jute Corporation of India Limited purchase raw jute directly from cultivators and make it available to the mills at the notified rate., The respondents submit that, under paragraph 3 of the Control Order, the Jute Commissioner is the competent authority to fix the price at which raw jute may be purchased or sold for different areas or varieties, based on the Minimum Support Price declared by the Central Government and taking into account varieties, grades, specifications, freight and other expenses. They state that the reasonable price has been published in the Gazette of India and that no person is entitled to sell or purchase raw jute above the notified rate. The respondents claim that the Jute Commissioner has taken steps against persons selling at higher prices and that the writ court is not the appropriate forum for the grievance; an appeal to the Central Government under the Control Order is the proper remedy. They also argue that the petitioners should procure raw jute from suppliers willing to sell at or below the notified rate and that delayed payments by mill owners to cultivators are a primary cause of non‑availability at the notified price., The Jute Corporation of India Limited submits that, despite a bumper crop, the Minimum Support Price of jute has remained unchanged and that the corporation assists cultivators only when the selling price falls below the rate fixed by the Commissioner for agricultural costs and prices. It makes direct payments to distressed cultivators but is not liable to purchase raw jute at the notified rate as prayed for by the petitioners. The corporation attributes the abnormal price hike to illegal hoarding by unscrupulous traders. The Minimum Support Price of raw jute for the TD‑3 variety is Rs 4,500 per quintal, which is Rs 2,000 less than the reasonable price fixed by the Commissioner., The Jute Balers Association states that the soaring price of raw jute, despite bumper production, is primarily due to non‑payment or delayed payment of raw jute by the mills to suppliers. Many mills have defaulted on dues, and to induce suppliers, mills offer incentives against old dues for fresh consignments, creating a vicious cycle. Some mills intentionally raise prices to lure hesitant suppliers, leading to market price inflation and false scarcity. Consequently, mills unable to purchase at higher rates are forced to shut down, leaving thousands of workers jobless. Although the mills receive prompt payment from the Government for jute bags sold, they often delay payment to raw jute suppliers., The Union of India submits that the writ application should be dismissed on account of suppression of material facts and that the petitioners approach the Court with unclean hands. A letter dated 16 October 2021 from the petitioners appreciates the Jute Commissioner’s ceiling price as helpful to stall the skyrocketing market price. The Union argues that jute is an endangered industry and that fixing a ceiling price is a policy decision to control price fluctuations and protect the industry. Despite bumper production, the Minimum Support Price of the TD‑5 variety remains at Rs 4,500 per quintal, while the reasonable price has been fixed at Rs 6,500 per quintal, giving a Rs 2,000 profit to farmers. The Union contends that any increase in the notified rate would drain the State exchequer and would not benefit farmers, as the higher amount would be captured by middlemen., The Court notes that a preliminary issue of maintainability was raised, arguing that an appellate forum is available under the Control Order and that the petitioners should approach it. Paragraph 10 of the Control Order provides that any person aggrieved by an order of the Jute Commissioner may prefer an appeal to the Central Government within thirty days, and the Government may entertain a belated appeal on sufficient cause. The Court observes that no formal order was passed by the Jute Commissioner in this case; the petitioners are aggrieved solely by the Gazette notification, which is not appealable under paragraph 10. Consequently, the preliminary objection is overruled., The Court reiterates that paragraph 3 of the Control Order empowers the Jute Commissioner to fix the reasonable price of any variety and grade of raw jute by notification in the Official Gazette, taking into account variety, grade, freight, handling and storage costs, and any other relevant factors. Paragraph 3(4) further requires the Commissioner to consider these factors while fixing the price. The issue before the Court is whether the price fixed is reasonable. The mill owners claim the notified rate is impractical, the Jute Balers Association attributes the price rise to unpaid dues, and the Union of India points to illegal hoarding. The Minimum Support Price is Rs 2,000 less than the reasonable price fixed by the Commissioner., The Court observes that the order dated 20 June 2016 in WP 369 (W) of 2016, which fixed the price of B.Twill bags based on the three‑month moving average of raw jute quotations, does not lay down a ratio for fixing the price of raw jute itself. The Court is not an expert body and does not have the statutory authority to fix product prices; that duty rests with the Jute Commissioner under the Control Order. The Commissioner must fix the price after considering relevant factors and adopt necessary measures for implementation; otherwise, the price will lose relevance and purchasers will be at the mercy of traders selling above the notified rate., The Court notes that despite interim orders directing the Jute Commissioner to ensure availability of raw jute at the notified rate, the selling price remained above the notified rate. The Court finds that state officials have not extended necessary cooperation to central officers, allowing hoarders and black marketers to sell raw jute at exorbitant rates. Raising the notified rate is not a solution, as it would increase government reimbursement to mills, burden the exchequer, and likely not benefit cultivators. Publishing quotations at actual market prices would also not resolve the issue, as mill owners would demand reimbursement at the higher published rate., The Court directs the Jute Commissioner to take positive steps and adopt stringent measures to implement the notified rate. If it appears that the notified rate cannot be adhered to despite all efforts, the Commissioner shall review and refix the rate, taking into account freight, transportation, handling and storage charges, and must review the rate at frequent intervals considering ground realities. The Commissioner is to collect first‑hand information on market rates, conduct regular raids, searches and seizures to prevent illegal hoarding, and take stern action against any person or agency indulging in activities that raise the price of raw jute., Writ petition stands disposed of. No costs. An urgent certified photocopy of this judgment, if applied for, shall be supplied to the parties expeditiously on compliance with usual legal formalities. (Amrita Sinha, J.)
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Date of decision: 26 April 2022. Through: Ms Geeta Luthra, Senior Advocate with Ms Shivani Luthra Lohiya, Ms Asmita Narula, Ms Priyanka Prasanth and Ms Apoorva Maheshwari, Advocates versus Through: Ms Rebecca John, Senior Advocate with Ms Gauri Rishi, Ms Srishti Juneja and Ms Garima Sehgal, Advocates for Respondent No. 1 Mr Manu Aggarwal and Mr Shubham Budhiraja, Advocates for Respondent No. 2 and Respondent No. 3., The instant contempt petition has been filed for wilful disobedience of the order dated 09 November 2021 passed by the learned Principal Judge, Family Court (South‑East), Saket Courts, New Delhi, in G.P. No.16/2021., It is stated that on 04 December 2018 the petitioner (wife) and Respondent No.1 (husband) were married in Taiwan and a male child was born to them. Respondent No.1 is alleged to have committed grave acts of mental, sexual, emotional, economic and physical abuse against the petitioner. In June 2020 Respondent No.1 moved the petitioner and the minor child to a rented flat at C‑99, Defence Colony, New Delhi. Respondents No.2 and No.3 are the owners‑landlords of the tenanted premises. Consequently the petitioner filed a petition under the Guardians and Wards Act, 1890 and an application under Section 18(1)(e) read with Sections 23 and 26 of the Protection of Women from Domestic Violence Act, 2005., By order dated 09 November 2021 the learned Principal Judge directed that, in addition to the rent of the serviced apartment and all amenities being provided by Respondent No.1, he shall pay a monthly maintenance of Rs 1,00,000 to the petitioner and Rs 1,00,000 per month for the minor son from the date of filing of the application till the decision of the case on merits., Since the rendering of the order, Respondent No.1 has consistently flouted the directions and has refused to provide alternate accommodation to the petitioner and the minor child. The petitioner alleges that Respondent No.1, in collusion with Respondents No.2 and No.3, has repeatedly attempted to evict them from the tenanted premises. The petitioner filed an appeal before this Court, MAT Appeal (F.C.) No.2/2022, against the order dated 09 November 2021, wherein by order dated 06 January 2022 the learned Principal Judge recorded Respondent No.1’s statement that he is complying in letter and spirit with the impugned order and shall continue to pay the amounts due., Ms Geeta Luthra, Senior Advocate appearing for the petitioner, addressed the maintainability of the instant contempt petition. She submitted that contempt jurisdiction can be invoked where the conduct of the contemnor interferes with the due course of justice and that the executability of an order does not oust the jurisdiction of the Supreme Court of India under the Contempt of Courts Act, 1971., She argued that where the husband does not pay the maintenance ordered by the court, despite being in a position to pay, he can be proceeded against for contempt of court and punished., To buttress her submission, she relied on the following judgments: Rama Narang v. Ramesh Narang (2006) 11 SCC 114; Lopaben Patel v. Hitendra Rambhai Patel, 1999 SCC OnLine Guj 128; Sarladevi Bharatkumar Rungta v. Bharatkumar Shivprasad; Amita B. Devnani v. Bhagwan H. Devnani and Ors., 2006 SCC OnLine Bom 263; judgment dated 25 November 2021 in CONT.CAS(C) 429/2021 titled Sonali Bhatia v. Abhivansh Narang; judgment dated 14 November 2007 in CONT.CAS(C) 105/2007 titled Nishu Bansal & Anr. v. Ajay Bansal; Urban Infrastructure Real Estate Fund v. Dharmesh S. Jain and Anr., 2022 SCC OnLine SC 296., The learned Senior Counsel took the Supreme Court of India through the previous orders dated 24 January 2022, 28 January 2022 and 02 March 2022, rendered in the instant case, to show that, in addition to the maintenance ordered by the Family Court, this Court directed Respondent No.1 to pay an advance amount of Rs 1,00,000 to the petitioner within a week for her daily expenses and to ensure continuation of the services of the nanny and cook and payment of their outstanding salaries., Ms Luthra submitted that Respondent No.1 has flouted these orders despite possessing ample wealth and is unwilling to provide for the petitioner and the minor child. She referred to the income affidavit filed by the respondent before the Family Court to demonstrate his financial capacity and his reneging on assurances given to the courts., She further submitted that Respondent No.1 is now attempting to render the petitioner and the minor child homeless by taking away the service apartment at C‑99, Defence Colony, New Delhi, in collusion with Respondents No.2 and No.3, and is refusing to pay the salary of the house staff, especially the nanny, having even attempted to make the staff leave., Ms Rebecca John, Senior Advocate appearing for Respondent No.1, submitted that no contempt has been made out as Respondent No.1 has duly complied with the order dated 09 November 2021 and with the orders dated 24 January 2022, 28 January 2022 and 02 March 2022. She relied on Ajit Arjani v. Roma Arjani (2004) SCC Online Del 323 to argue that an order alleged to be disobeyed must be explicit and unambiguous, and on Anil Ratan Sarkar v. Hirak Ghosh, AIR 2002 SC 1405, to contend that mere disobedience cannot amount to civil contempt within the meaning of Section 2(b) of the Contempt of Courts Act, 1971. She also cited Ved Prakash Abbot v. Kishore K. Avarsekar & Ors., 2019 SCC Online Del 9570, stating that wilful and intentional disobedience must be recorded to invoke contempt jurisdiction., Ms John further submitted that Respondent No.1 is currently paying Rs 4.5 lakhs for the serviced apartment along with Rs 2 lakhs directed by the Family Court and an additional Rs 1 lakh directed by this Court as a one‑time payment for groceries. She asserted that all amenities required for the petitioner and the minor child are being provided and that the petitioner is merely expanding the scope of the order to cause hardship. However, she observed that the payment to the nanny is excessive given that the minor son no longer requires specialised care, and therefore no violation of the order has occurred., The Supreme Court of India heard Ms Geeta Luthra, Senior Advocate for the petitioner, and Ms Rebecca John, Senior Advocate for Respondent No.1, and perused the material on record., The Court noted that, although the Protection of Women from Domestic Violence Act provides for execution of a maintenance order, the question before the Supreme Court of India is whether, in view of the facts and circumstances, there has been any civil contempt as defined in Section 2(b) of the Contempt of Courts Act, 1971, with respect to the order dated 09 November 2021., The Court referred to several Supreme Court judgments on civil contempt. In Ashok Paper Kamgar Union v. Dharam Godha (2003) 11 SCC 1, the Court observed that civil contempt means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court, and that the disobedient act must be capable of execution by the person charged without extraordinary effort or reliance on a third party., The Court also noted that in Anil Ratan Sarkar v. Hirak Ghosh the Supreme Court emphasized that wilfulness is an indispensable element for civil contempt, and that mere disobedience may not be sufficient where two interpretations of an order are possible., The Court further analyzed the meaning of wilful disobedience in Dinesh Kumar Gupta v. United India Insurance Co. Ltd. (2010) 12 SCC 770 and held that a contempt proceeding cannot be sustained on speculation, assumption or inference; there must be a conscious and intentional refusal to comply with a clear and unambiguous order., The Court quoted Jhareswar Prasad Paul v. Tarak Nath Ganguly (2002) 5 SCC 352, stating that the purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts, and that the jurisdiction should be exercised sparingly, confined to deliberate disobedience of a specific direction, and not to decide matters beyond the scope of the original order., The material on record shows that Respondent No.1 has been paying the maintenance directed by the Family Court order dated 09 November 2021, which includes rent of the serviced apartment, all amenities and bills, and a monthly maintenance of Rs 1 lakh each to the petitioner and the minor son from the date of filing of the petition, i.e., 18 January 2021., The income and expenditure affidavit filed by Respondent No.1 states that he is staying at C‑99, Defence Colony, New Delhi, and details monthly expenditures amounting to Rs 8,90,947, including rent of Rs 3,91,911, nanny salary of Rs 80,180, and house‑keeper and cook salary totaling Rs 6,79,474., The Court observed that Respondent No.1 was spending Rs 8,90,947 per month for the maintenance of the petitioner and the minor son while residing with them. After he shifted out, the expenditure has not been reduced. It is submitted that he is paying Rs 4.5 lakhs towards rent, Rs 1,30,937 for house‑keeper and cook room rent, and Rs 76,744 for their salaries., The controversy before the Court is limited to whether non‑payment of the nanny’s salary amounts to contempt. The petitioner’s counsel contends that the nanny, originally appointed as a medical specialist when the minor son’s health was poor, is no longer required, and that a sum of Rs 80,000 per month is excessive., The order of 28 January 2022 recorded that Rs 24 lakhs had already been paid by Respondent No.1, covering the period till 17 January 2022. The respondent is expending approximately Rs 4.5 lakhs per month on rent and an additional Rs 1 lakh per month for the petitioner’s daily expenses, amounting to almost Rs 8 lakhs in total, and has also undertaken to pay for the services of the nanny and home staff., The Supreme Court of India finds no wilful disobedience on the part of Respondent No.1 in fulfilling the directions of the Family Court and this Court, and therefore no penal consequences arise; no contempt is made out against Respondent No.1., The petition is dismissed along with any pending applications, if any., The Court directs that, if the serviced apartment at C‑99, Defence Colony, New Delhi is not provided to the petitioner and the minor son, Respondent No.1 shall provide alternate accommodation of the same nature. Furthermore, Respondent No.1 is directed to continue paying a sum of Rs 1 lakh towards the petitioner’s daily expenses such as groceries, as stipulated in the order dated 02 March 2022.
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Through: Ms. Kusum Dhalla, Additional Public Prosecutor versus Respondent. Through: Ms. Nidhi Raman and Mr. Zubin Singh, Advocates., By way of the instant petition filed under Section 482 of the Code of Criminal Procedure, 1973, the Petitioner/State has prayed for the following reliefs: Allow the present petition and issue appropriate orders directing the Respondent to disclose the information with respect to the Aadhaar Card holders which is sought by the investigation agency for the investigation of the case with FIR no. 03/2020 under Section 7 of the Prevention of Corruption Act read with Section 120-B of the Indian Penal Code, Anti Corruption Branch of the Government of National Capital Territory of Delhi. Allow the present petition and issue appropriate orders directing the Respondent to ascertain the date and place of issuance of Aadhaar Cards, date of updation and the documents submitted for updation from the Aadhaar Card issuing Authority i.e. UIDAI. Pass such other and further orders and/or directions as the Supreme Court of India may deem fit and proper in the above facts and circumstances of the case, in the interest of justice., The facts of the instant case are that a complaint of Shri Vijender Gupta was received in the Anti Corruption Branch, New Delhi stating that the manner of recruitment of marshals for DTC buses was illegal. It was further alleged that the recruitment process was manipulated and Shri Kuldeep Pakad, District Magistrate, Shahdara had issued fake certificates, certifying as Delhi residents for making Aadhaar Cards, to over 400 people from his home state i.e. Rajasthan and had compelled them to pay as much as Rs. 2 Lakhs per head. Furthermore, it was alleged that a large number of Aadhaar Cards with bogus Delhi addresses were made for persons from Rajasthan at the Aadhaar Centre functioning in the office of the District Magistrate on 11th and 12th August 2019 – both the days being holidays. On the basis of the aforementioned complaint, an FIR bearing no. 03/2020 was registered on 24th January 2020 under Section 7 of the Prevention of Corruption Act, 1988 read with Section 120-B of the Indian Penal Code at the Anti Corruption Branch of the Government of National Capital Territory of Delhi., Ms. Kusum Dhalla, learned Additional Public Prosecutor for the Petitioner/State, prays before the Supreme Court of India seeking a direction to the Respondent Authority for disclosure of information, as per Section 33(1) of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (hereinafter referred to as the Aadhaar Act) in relation to the allegedly fake Aadhaar Cards, that is required for investigation of the case., Ms. Dhalla stated that, in the course of investigation conducted so far, prima facie it has emerged that Shri Kuldeep Singh Pakad, the then District Magistrate of Shahdara, Shri S.S. Kain and others had committed criminal misconduct by abusing their official position as public servants with an ulterior motive to give benefit to ineligible persons, and in total, approximately 450 candidates with fake Aadhaar Cards had enrolled for training in Civil Defence., It is submitted that Section 33(1) of the Aadhaar Act that deals with disclosure of information under the Aadhaar Act has been amended by the Aadhaar and Other Laws (Amendment) Act, 2019 thus enabling the Supreme Court of India to order disclosure of information including the identity and authentication information of the Aadhaar Cardholder. It is further submitted that the information as being sought by the Investigation Agency for purpose of verification falls within the ambit of 'identity information' as defined under Section 2(n) of the Aadhaar Act., Ms. Kusum Dhalla, learned Additional Public Prosecutor for the Petitioner/State, submitted that the information as sought by the investigation agency is crucial for establishing the forgery committed and would help in securing the ends of justice. It is further contended by the learned Additional Public Prosecutor that a disclosure of such information by the Respondent Authority in no way amounts to invasion of the right to privacy of the card holders, and hence the prayer for direction be allowed by the Supreme Court of India., Ms. Nidhi Raman, learned counsel for the Respondent Authority, submitted that the Authority has no objection in sharing the information being sought, to the extent and in a manner as permissible under the provisions of the Aadhaar Act, upon being directed by the Supreme Court of India., In light of the facts of the case, the Supreme Court of India is inclined to allow the instant petition., The Respondent is hereby directed to provide all relevant information, qua the persons named in Annexure P‑3 of the petition, as required for the purposes of investigation as per the provisions of the Aadhaar Act. The Investigation Agency is also directed to investigate the matter, upon receiving the requested information, with due regard to the provisions of the statute.
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Non-Reportable Civil Appeal Number 5160 of 2010 J. Chitra Appellant versus District Collector and Chairman State Level Vigilance Committee, Tamil Nadu & Ors. Respondents., A Writ Petition was filed by the Appellant challenging the order dated 09.04.2008 passed by the Chennai District Vigilance Committee cancelling the community certificate. The Writ Petition was dismissed by the Madras High Court by a judgment dated 22.12.2008, aggrieved by which this Appeal is filed. The Tahsildar, Mylapore-Triplicane, Chennai issued a community certificate showing the Appellant to be from Valluvan community on 28.08.1982 when she was studying in tenth class. At the time of joining service in the Office of Accountant General, the Appellant applied for a community certificate. The Tahsildar, Mylapore-Triplicane, Chennai issued a community certificate on 12.07.1985 which was submitted by the Appellant after joining the service on 17.07.1985. A complaint was preferred by Doctor Ambedkar Service Association in the Office of the Accountant General raising doubts about the community certificate produced by the Appellant at the time of joining service. The Appellant was directed to attend an inquiry to be conducted by the Collector regarding the genuineness of the community certificate. A notice was issued by the District Collector, Chennai on 27.05.1998 directing the Appellant to show cause as to why her community certificate should not be cancelled. The District Collector directed the Revenue Divisional Officer to conduct an inquiry. An inquiry was conducted by the District Vigilance Committee. After conducting an inquiry, the District Vigilance Committee expressed its view that the Appellant belongs to Valluvan community which is a Scheduled Caste., On 27.01.2000, the service of the Appellant as Section Officer was regularized. The Appellant was promoted as Assistant Accounts Officer on 31.12.2001. In the meanwhile, Doctor Ambedkar Service Association submitted another representation that suitable action should be taken against the Appellant for securing employment as reserved category candidate on the basis of a false caste certificate. The State Level Scrutiny Committee informed the Appellant that a complaint was received from Doctor Ambedkar Service Association and directed the Appellant to be present for inquiry to be conducted on 24.03.2003. Responding to the notice, the Appellant attended the inquiry before the State Level Scrutiny Committee. In the meanwhile, the District Vigilance Committees were reconstituted by the Government of Tamil Nadu vide Government Order Number 111, Adi Dravidar and Tribal Welfare Department dated 06.07.2005. The State Level Scrutiny Committee remanded the inquiry pertaining to the community certificate of the Appellant to the District Vigilance Committee on 04.01.2006. The functions of the District Vigilance Committees and State Vigilance Committees as well as the procedure to conduct an inquiry were enumerated by Government Order (2D) Number 108, Adi Dravidar and Tribal Welfare Department dated 12.09.2007. The Appellant was directed to appear before the District Vigilance Committee pursuant to which the Appellant as well as her mother attended the inquiry and submitted relevant documents before the District Vigilance Committee. On 09.04.2008, an order was passed by the District Vigilance Committee cancelling community certificate of the Appellant. Assailing the legality and validity of the order dated 09.04.2008, the Appellant filed a Writ Petition in the Madras High Court which was dismissed by a judgment dated 22.12.2008. Ergo, this Appeal., Mister K. Ramamoorthy, learned Senior Counsel appearing for the Appellant submitted that the community certificate issued in favour of the Appellant was subject matter of an inquiry by the District Vigilance Committee in the year 1999. Thereafter, the State Level Scrutiny Committee did not have jurisdiction to remand the matter to the District Vigilance Committee for a fresh inquiry into the genuineness of the claim of the Appellant that she belongs to Scheduled Castes. The decision of the District Vigilance Committee on 31.12.1999 upholding the claim of the Appellant that she belongs to Valluvan Community remains unchallenged. Mister K. Ramamoorthy argued that community certificates which have become final cannot be reopened as held by this Court in Kumari Madhuri Patil and Anr. versus Additional Commissioner, Tribal Development and Others and Dayaram versus Sudhir Batham and Others. He relied upon the memorandum of family settlement dated 01.11.1932 and the sale deed dated 05.10.1978 executed by Abdul Masjid Rawoother in favour of father of the Appellant which clearly show that the Appellant belongs to Scheduled Caste. He referred to Government Order (2D) Number 108 dated 12.09.2007 to state that the dispute relating to the community certificate issued in favour of the Appellant cannot be remitted by the State Level Scrutiny Committee to the District Level Vigilance Committee for reconsideration. The learned Senior Counsel for the Appellant contended that the order dated 09.04.2008 deserves to be set aside as the evidence recorded by the District Vigilance Committee are contrary to the findings arrived at by the District Vigilance Committee in the year 1999., Mister Pulkit Tare, learned counsel appearing for the State submitted that District Vigilance Committees for verification of community certificates issued to a Scheduled Caste or Scheduled Tribe were reconstituted by Government Order (Ms) Number 111, Adi Dravidar and Tribal Welfare dated 06.07.2005. Pursuant to the judgment of this Court in Kumari Madhuri Patil, the Government constituted District Level Vigilance Committees at District Level and State Level Scrutiny Committee at State Level to verify genuineness of the community certificates issued to Scheduled Castes or Scheduled Tribes. After the reconstitution of District Level Vigilance Committees on 06.07.2005, the Government issued guidelines by Government Order 108 on 12.09.2007 for the functions of the District and State Level Scrutiny Committees relating to verification on the genuineness of the community service. The learned counsel for the State submitted that the remand by the State Level Scrutiny Committee to the District Vigilance Committee for a fresh inquiry into the community certificate of the Appellant was in accordance with the guidelines issued by the Government by Government Order 108 dated 12.09.2007. It was further contended on behalf of the State that the District Vigilance Committee conducted a detailed inquiry to come to a conclusion that the Appellant does not belong to a Scheduled Caste., Realizing the pernicious practice of false caste certificates being utilized for the purpose of securing admission to educational institutions and public employment depriving genuine candidates of the benefits of reservation, this Court in Kumari Madhuri Patil issued the following directions: 1. The application for grant of social status certificate shall be made to the Revenue Sub Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such officer rather than at the Officer, Taluk or Mandal level. 2. The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or non‑gazetted officer with particulars of castes and subcastes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally hails and other particulars as may be prescribed by the Directorate concerned. 3. Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post. 4. All the State Governments shall constitute a Committee of three officers, namely, (i) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (ii) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (iii) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities. 5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in overall charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He should also examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the pro forma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the castes or tribes or tribal communities concerned etc. 6. The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be not genuine or doubtful or spurious or falsely or wrongly claimed, the Director concerned should issue show‑cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgement due or through the head of the educational institution concerned in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the committee and the Joint/Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis‑vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof. 7. In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in paragraph 6 be followed. 8. Notice contemplated in paragraph 6 should be issued to the parents/guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates. 9. The inquiry should be completed as expeditiously as possible preferably by day‑to‑day proceedings within such period not exceeding two months. If after inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent/guardian and the applicant. 10. In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non‑official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee. 11. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution. 12. No suit or other proceedings before any other authority should lie. 13. The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition/miscellaneous petition/matter is disposed of by a Single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136. 14. In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament. 15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the educational institution concerned or the appointing authority by registered post with acknowledgement due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post., In Dayaram, this Court was of the view that the Scrutiny Committee is an administrative body which verifies the facts and investigates into claims of caste status. The orders of the Scrutiny Committee are open to challenge in proceedings under Article 226 of the Constitution of India. It was further held by this Court that permitting civil suits with provisions for appeals and further appeals would defeat the very scheme and will encourage the very evils which this Court wanted to eradicate. It was observed that the entire scheme in Kumari Madhuri Patil will only continue till the legislature concerned makes an appropriate legislation in regard to verification of claims for caste status as Scheduled Caste or Scheduled Tribe. It was made clear that verification of caste certificates issued without prior inquiry would be verified by the Scrutiny Committees. Such of those caste certificates which were issued after due and proper inquiry need not be verified by the Scrutiny Committees., District Vigilance Committees for verification of community certificates issued to Scheduled Castes or Scheduled Tribes were reconstituted on 06.07.2005 pursuant to the judgment of this Court in Kumari Madhuri Patil. Government Order 108 dated 12.09.2007 contains guidelines issued by the Government of Tamil Nadu for the functioning of the District and State Level Vigilance Committees. The guidelines issued by the Government in Government Order 108 of 12.09.2007 are as follows: 1. In cases which were remitted to the three‑member District Level Vigilance Committee by the State Level Scrutiny Committee as per the Court directions before 12.09.2007, the decision of the District Vigilance Committee reconstituted by Government Order 111 dated 06.07.2005 regarding the genuineness of community certificate of Scheduled Tribes is final. 2. In case of community certificate issued by the Deputy Tahsildar or Tahsildar has been found to be not genuine by the three‑member District Vigilance Committee and an individual has filed an Appeal to the State Level Scrutiny Committee, the individual shall be directed to approach the High Court by filing a Writ Petition. 3. If appeals are filed against orders passed by the two‑member District Level Vigilance Committee to the State Level Scrutiny Committee and were not remitted back to the reconstituted three‑member Scrutiny Committee by the Government, in view of pendency of Writ Petitions before the Court, the State Level Scrutiny Committee shall conduct an inquiry., In the instant case, an inquiry was conducted by the District Level Vigilance Committee which has upheld the community certificate in favour of the Appellant. The decision of the District Level Vigilance Committee in the year 1999 has not been challenged in any forum. The recognition of the community certificate issued in favour of the Appellant by the District Vigilance Committee having become final, the State Level Scrutiny Committee did not have jurisdiction to reopen the matter and remand for fresh consideration by the District Level Vigilance Committee. The guidelines issued by Government Order 108 dated 12.09.2007 do not permit the State Level Scrutiny Committee to reopen cases which have become final. The purpose of verification of caste certificates by Scrutiny Committees is to avoid false and bogus claims. Repeated inquiries for verification of caste certificates would be detrimental to the members of Scheduled Castes and Scheduled Tribes. Reopening of inquiry into caste certificates can be only in case they are vitiated by fraud or when they were issued without proper inquiry., The District Level Vigilance Committee cancelled the community certificate issued in favour of the Appellant after conducting an inquiry and coming to a conclusion that she belongs to Kailolan community and not to Valluvan community which is a Scheduled Caste. In view of the conclusion that the State Level Scrutiny Committee did not have the power to reopen the matter relating to the caste certificate that was approved by the District Vigilance Committee in the year 1999 without any Appeal filed against that order, it is not necessary for us to deal with the submissions made on behalf of the Appellant relating to the correctness of the findings recorded by the District Vigilance Committee on 09.04.2008. For the foregoing reasons, the order dated 09.04.2008 is set aside and the Appeal is allowed.
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Showik Indrajit Chakraborty, aged 27 years, residing at Flat No. 501, Gabanna House Apartments, 15th Road, Khar West, Mumbai 400052, is a petitioner. The respondents are the Additional Superintendent of Police, Central Bureau of Investigation, 5B, 5th Floor, CBI Building, CGO Complex, Lodhi Road, New Delhi; and the State of Maharashtra., Lt. Colonel Indrajit Chakraborty (Veteran), aged 57 years, and Sandhya Indrajit Chakraborty, aged 57 years, both residing at Flat No. 501, Gabanna House Apartments, 15th Road, Khar West, Mumbai 400052, are petitioners., Rhea Chakraborty, age 31 years, actress, residing at 501, Gabanna Apartments, 15th Road, Khar West, Mumbai 400052, is a petitioner., Union of India (Central Bureau of Investigation) and the State of Maharashtra are respondents. The Bureau of Immigration, Ministry of Home Affairs, Government of India, through the Commissioner (Immigration), East Block-VIII, Level V, Sector-1, New Delhi, is also a respondent., Mr. Ayaz Khan as well as Ms. Zahra Charania appear for the petitioner in Writ Petition 3135/2023 and Writ Petition 3160/2023. Dr. Abhinav Chandrachud, Mr. Prasanna Bhangale and Mr. Janay Jain appear for the petitioner in Writ Petition 3885/2023. Mr. Kuldeep Patil, Special Public Prosecutor for Respondent No.1 – Central Bureau of Investigation, and Mr. Shreeram Shirsat, Special Public Prosecutor as well as Ms. Tanvi Mate, Mr. Tanveer Khan, Mr. Shekhar Mane and Ms. Karishma Rajesh appear for Respondent No.1 – Central Bureau of Investigation in Writ Petition 3160/2023 and Writ Petition 3885/2023. Ms. P.P. Shinde, Additional Public Prosecutor for the State of Maharashtra, also appears., By the aforesaid petitions, the petitioners seek quashing and setting aside of the Look Out Circulars issued against them by Respondent No.1 – Central Bureau of Investigation., The petitioners, Lt. Colonel Indrajit Chakraborty and his wife Sandhya Indrajit Chakraborty, petitioners No.2 in Writ Petition 3160/2023, are the parents of petitioners in Writ Petition 3135/2023 and 3885/2023. The petitioner No.1 in Writ Petition 3160/2023 is a retired Army Officer who retired as a Lieutenant Colonel and settled in Mumbai. The petitioner No.2, his wife, was a teacher in various Army Schools., Showik Chakraborty, petitioner in Writ Petition 3135/2023, obtained employment with Jann Projects Private Limited as an Executive after being released on bail in an NDPS case. Jann Projects Private Limited is a sister concern of The Global Education and Leadership Foundation (GELF). He is presently working as a Senior Manager for entrepreneurship at GELF and is required to play an active role in developing partnerships and expanding the vision of GELF to many countries. He has closely worked with the Ministry of Electronics and Information Technology, Startup Hub, in executing the G20 DIA Mega Summit. Considering the nature of his work, he is required to travel abroad., The petitioner in Writ Petition 3855/2023 is an actress appearing in Hindi films, who has hosted several television shows, endorsements and a number of brands., On 14 June 2020, Sushant Singh Rajput committed suicide at his residence in Bandra. The Mumbai Police registered an Accidental Death Report and commenced an inquiry under Section 174 of the Code of Criminal Procedure to ascertain the cause of death., During the inquiry, the Mumbai Police recorded statements of several persons. During the pendency of the inquiry, Sushant Singh Rajput’s father, Krishna Kishore Singh, lodged an FIR with the Rajeev Nagar Police Station, Patna, registered as C.R. No. 241/2020, against the petitioners and others under Sections 341, 342, 380, 406, 420, 306, 506 and 122 of the Indian Penal Code., Petitioner Rhea Chakraborty filed Transfer Petition (Criminal) No. 225/2020 in the Supreme Court of India seeking transfer of the case from Patna to Mumbai. While the transfer petition was pending, the State of Bihar handed over the investigation to the Central Bureau of Investigation, which was directed by the Supreme Court of India on 19 August 2020 to investigate the death of Sushant Singh Rajput., The Central Bureau of Investigation summoned several persons, including the petitioners, and recorded their statements. The petitioners were last summoned by the CBI in September 2021., Petitioner Rhea Chakraborty was arrested by the Narcotics Control Bureau, Mumbai, on 8 September 2020 in connection with an NDPS case. Showik Chakraborty was also arrested in the same NDPS case on 4 September 2020. The charges alleged against them were under Sections 8(c) read with 20(b)(ii)(A), 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act. After investigation, a charge sheet was filed and both petitioners were released on bail. One condition of bail was that they would not leave the country without prior permission of the trial Court., No case was registered against Lt. Colonel Indrajit Chakraborty and Sandhya Chakraborty in the NDPS case. When Rhea Chakraborty sought permission from the trial Court to travel abroad, she learned that Look Out Circulars had been issued against her and her family. Consequently, the petitioners filed the present petitions seeking quashing of the Look Out Circulars., Counsel for the petitioners questioned the issuance and indefinite continuation of the Look Out Circulars, submitting that despite the CBI taking over the investigation in August 2020, no progress has been made for more than three years. All petitioners have cooperated with the CBI investigation, and the continued existence of the Look Out Circulars infringes the petitioners’ right to travel abroad, violating Article 21 of the Constitution of India., Counsel relied on the judgments of the Supreme Court of India in Navinchandra N. Majithia v. State of Maharashtra and Kusum Ingots & Alloys Ltd. v. Union of India, as well as Maneka Gandhi v. Union of India, to support jurisdiction and the principle that the fundamental right to travel cannot be taken away except by due process of law., An affidavit dated 15 December 2023 was filed on behalf of the Union of India in Writ Petition 3885/2023. Respondents Mr. Patil and Mr. Shirsat, Special Public Prosecutors, opposed the petitions, arguing that this Court has no jurisdiction to entertain the petitions and that the investigation is ongoing, so the petitioners may seek permission to travel abroad as and when required instead of quashing the Look Out Circulars. They did not dispute that the petitioners were last called by the CBI in September 2021 and have not been summoned thereafter., The Court examined the Look Out Circulars submitted in sealed envelope along with the office memorandum dated 22 February 2021 incorporating the Consolidated Guidelines. Clause (H) of the Consolidated Guidelines requires that the reason for opening a Look Out Circular be recorded in Column IV of the proforma. The Court found that Column IV of the four Look Out Circulars merely mentioned the FIR number and its gist, without disclosing any specific reason for opening the Look Out Circulars., The Court noted that not every CBI case results in a Look Out Circular, and that the reason for opening a Look Out Circular must reflect the authority’s satisfaction that the person is deliberately evading arrest, is likely to leave the country, or other grounds specified in the Guidelines. In none of the four Look Out Circulars was such satisfaction recorded., Clause (J) of the Consolidated Guidelines states that a Look Out Circular shall remain in force until a deletion request is received from the originating agency, and that the agency must review the Look Out Circulars periodically and submit proposals for deletion. The Court observed that the respondents had not shown any periodic review or deletion request., In Karti P. Chidambaram v. Bureau of Immigration, the Madras High Court held that an office memorandum requires that a request for issuance of a Look Out Circular must contain reasons, and that the Consolidated Guidelines reiterate this requirement., The present Look Out Circulars were issued in August 2020 with no reason disclosed beyond the FIR reference. No charge sheet or closure report has been filed by the CBI to date. The petitioners have cooperated with the investigation and were last summoned in September 2021., The Court therefore rejected the respondents’ submission that the petitioners could simply apply for suspension of the Look Out Circulars when they wish to travel abroad. The Court held that Look Out Circulars cannot be kept pending indefinitely, especially for more than three years, when the petitioners have complied with bail conditions that already restrict them from leaving the country without court permission., Accordingly, the Court quashed and set aside the Look Out Circulars issued against the petitioners, while noting that the authorities may issue Look Out Circulars in the future if justified., The petitions stand disposed of accordingly. All concerned are directed to act on the authenticated copy of this operative order., After the judgment, Mr. Shirsat and Mr. Patil, Special Public Prosecutors, sought a stay of the judgment. The Court rejected the request for stay.
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FIR no. 152/2021 PS Connaught Place State Vs. Preet Singh under sections 188, 269, 270, 153A of the Indian Penal Code, Section 3 of the Epidemic Diseases Act. In view of the directions of the Hon'ble High Court of Delhi vide order No. 439‑470/RG/DHC‑2021 dated 22.07.2021, matters are being taken up through video conferencing using Cisco Webex. It is certified that there was no interruption during the proceeding and all the parties were heard. Present: Sh. Kartikay Sharma, Learned Additional Public Prosecutor for the State. Sh. Ashwani Kumar Dubey, Sh. Nirmal Kumar Amabastha, Sh. Manish Kumar, Sh. Avadh Kaushik, Sh. Rudra Pratap Singh, Sh. Vikram Singh, Sh. Rakshpal Singh, Sh. Vinay Gaur and Sh. Yashveer Singh, Learned Counsel for the applicant/accused. SHO/Insp. Inder Kumar Jha & Investigating Officer/Sub Inspector Ramkesh Meena, PS Connaught Place. This is an application for grant of bail under Section 437 of the Code of Criminal Procedure to the applicant/accused namely Preet Singh. Reply has been filed by the Investigating Officer wherein the Investigating Officer has vehemently opposed the bail application on the ground that according to Call Detail Record report, as of now, the accused was present on the spot at or around 2 p.m. Presence of the accused is confirmed through obtained video footage. Release of the applicant/accused will be prejudicial in maintaining public tranquillity and will further create serious law and order situation. There are chances that the applicant/accused will create communal disharmony. Sh. Ashwani Dubey, Learned Counsel for the applicant/accused submits that from the reading of the FIR nothing inculpatory can be ascertained even prima facie against the applicant/accused. The FIR is lodged against unknown persons, the applicant/accused is not even named in the said FIR. The applicant/accused was not even present in the gathering at the time when the alleged offence under Section 153A of the Indian Penal Code was committed. Learned Counsel has also placed reliance upon the order dated 11.08.2021 passed by the Delhi High Court by virtue of which bail was granted to the other accused allegedly involved in the present matter who had acted in a bonafide manner and had duly offered his assistance to the Investigating Agency. Sh. Avadh Kaushik, Learned Counsel for the applicant/accused submits that there is delay in registration of the FIR which hampers the case of the investigating agency in itself. That the applicant/accused has been falsely implicated in the present matter, and even after arrest, the applicant/accused was taken to an unknown place. Learned Counsel submits that this is a clear case of atrocity committed by the police on innocent citizens. Other Learned Counsels appearing for the applicant/accused submitted on similar lines and claimed release of the applicant/accused on the ground of parity. Per Contra, Learned Additional Public Prosecutor for the State submits that the gathering was held without any permission and was held near the Parliament during its ongoing Monsoon Session. That the applicant/accused violated the guidelines issued to contain the spread of COVID‑19 pandemic, and also Section 144 of the Code of Criminal Procedure which was applicable in that place during that time. Learned Additional Public Prosecutor for the State submits that it is a clear case of involvement of the applicant/accused as the event was organized at the behest of the applicant/accused and thus an offence under Section 153A of the Indian Penal Code was committed in the presence of the applicant/accused. Heard both sides at length. Perused the record. The Hon'ble Supreme Court of India in Prahlad Singh Bhati vs NCT of Delhi AIR 2001 SC 1444 held that while granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting bail the legislature has used the words reasonable grounds for believing instead of the evidence which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt. Indeed it is a difficult time for everyone during this pandemic and serious view should be taken against those who violate the guidelines/restrictions to contain the spread of COVID‑19 pandemic, yet the offences as far as breach of these guidelines are concerned are bailable in nature, which can be dealt by the Trial Court on merits. As far as the offence under Section 153A of the Indian Penal Code is concerned, even though from perusal of the FIR no specific allegation against the applicant/accused can be ascertained and the FIR is silent with regard to commission of offence under Section 153A, prima facie perusal of all the material available on record including the alleged video footage fails to find support in favour of the applicant/accused. The Delhi High Court has seen the alleged video clippings and played some part of it in open court also. In one of the clippings, the applicant/accused, as identified by the Investigating Officer in the video clipping, can be seen with the other accused Deepak Singh, who in one of the video clippings has made scathing remarks which are undemocratic and uncalled for from a citizen of this country where principles like Secularism hold the value of a basic feature imbibed in the Constitution. Freedom to express oneself is indeed allowed to be enjoyed by the citizens to the fullest possible extent, yet with every right there is a corresponding duty attached. The principle behind Section 153A of the Indian Penal Code is to preserve religious/communal harmony and it is the duty of every citizen that while he enjoys his right to express himself, he preserves religious harmony. This indeed is the positive aspect of Secularism. The Delhi High Court at this stage cannot check the veracity of these video clippings which is a matter of appreciation of evidence to be done at a later stage. Besides, there is no time stamp available at this stage on these video clippings for which proper investigation is required. The Delhi High Court cannot interfere with the ongoing investigation. With regard to ground of parity, for applicability of the same it has to be seen whether the accused stands on the same footing as the accused already released on bail. It is agreed that there was no specific allegation even against the other accused (released on bail) in the FIR. The other accused (released on bail) was neither seen in any of the alleged video clippings nor was it prima facie seen that any such act was committed at his behest. Even from the Call Detail Record, the other accused (released on bail) was present on the spot only till 11 a.m.; this however, is not the case of the applicant/accused. On prima facie perusal of record, the present applicant/accused stands on a different footing from the other accused (released on bail). Considering the fact that investigation of the present case is at a nascent stage, the nature of accusations levelled against the accused persons and also taking into account the overall facts and circumstances of the case, the Delhi High Court is not inclined to allow the present application at this stage. Accordingly, the application stands dismissed. In view of the above, the present application stands disposed of. Proceedings be sent to the Court concerned through proper channel. Copy of the order be sent to Learned Counsel for the applicant/accused through email/WhatsApp., FIR no. 152/2021 PS Connaught Place State Vs. Deepak Singh under sections 188, 269, 270, 153A of the Indian Penal Code, Section 3 of the Epidemic Diseases Act. In view of the directions of the Hon'ble High Court of Delhi vide order No. 439‑470/RG/DHC‑2021 dated 22.07.2021, matters are being taken up through video conferencing using Cisco Webex. It is certified that there was no interruption during the proceeding and all the parties were heard. Present: Sh. Kartikay Sharma, Learned Additional Public Prosecutor for the State. Sh. Ashwani Kumar Dubey, Sh. Nirmal Kumar Amabastha, Sh. Manish Kumar, Sh. Avadh Kaushik, Sh. Rudra Pratap Singh, Sh. Vikram Singh, Sh. Rakshpal Singh, Sh. Vinay Gaur and Sh. Yashveer Singh, Learned Counsel for the applicant/accused. SHO/Insp. Inder Kumar Jha & Investigating Officer/Sub Inspector Ramkesh Meena, PS Connaught Place. This is an application for grant of bail under Section 437 of the Code of Criminal Procedure to the applicant/accused namely Deepak Singh. Reply has been filed by the Investigating Officer wherein the Investigating Officer has vehemently opposed the bail application on the ground that according to Call Detail Record report, as of now, the accused was present on the spot at or around 2 p.m. Presence of the accused is confirmed through obtained video footage. Release of the applicant/accused will be prejudicial in maintaining public tranquillity and will further create serious law and order situation. There are chances that the applicant/accused will create communal disharmony. Sh. Ashwani Dubey, Learned Counsel for the applicant/accused submits that from the reading of the FIR nothing inculpatory can be ascertained even prima facie against the applicant/accused. The FIR is lodged against unknown persons, the applicant/accused is not even named in the said FIR. The applicant/accused was not even present in the gathering at the time when the alleged offence under Section 153A of the Indian Penal Code was committed. Learned Counsel has also placed reliance upon the order dated 11.08.2021 passed by the Delhi High Court by virtue of which bail was granted to the other accused allegedly involved in the present matter who had acted in a bonafide manner and had duly offered his assistance to the Investigating Agency. Sh. Avadh Kaushik, Learned Counsel for the applicant/accused submits that there is delay in registration of the FIR which hampers the case of the investigating agency in itself. That the applicant/accused has been falsely implicated in the present matter, and even after arrest, the applicant/accused was taken to an unknown place. Learned Counsel submits that this is a clear case of atrocity committed by the police on innocent citizens. Other Learned Counsels appearing for the applicant/accused submitted on similar lines and claimed release of the applicant/accused on the ground of parity. Per Contra, Learned Additional Public Prosecutor for the State submits that the gathering was held without any permission and was held near the Parliament during its ongoing Monsoon Session. That the applicant/accused violated the guidelines issued to contain the spread of COVID‑19 pandemic, and also Section 144 of the Code of Criminal Procedure which was applicable in that place during that time. Learned Additional Public Prosecutor for the State submits that it is a clear case of involvement of the applicant/accused as the event was organized at the behest of the applicant/accused and thus an offence under Section 153A of the Indian Penal Code was committed in the presence of the applicant/accused. Heard both sides at length. Perused the record. The Hon'ble Supreme Court of India in Prahlad Singh Bhati vs NCT of Delhi AIR 2001 SC 1444 held that while granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting bail the legislature has used the words reasonable grounds for believing instead of the evidence which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt. Indeed it is a difficult time for everyone during this pandemic and serious view should be taken against those who violate the guidelines/restrictions to contain the spread of COVID‑19 pandemic, yet the offences as far as breach of these guidelines are concerned are bailable in nature, which can be dealt by the Trial Court on merits. As far as the offence under Section 153A of the Indian Penal Code is concerned, even though from perusal of the FIR no specific allegation against the applicant/accused can be ascertained and the FIR is silent with regard to commission of offence under Section 153A, prima facie perusal of all the material available on record including the alleged video footage fails to find support in favour of the applicant/accused. The Delhi High Court has seen the alleged video clippings and played some part of it in open court also. In one of the clippings, the applicant/accused can be seen making scathing remarks which are undemocratic and uncalled for from a citizen of this country where principles like Secularism hold the value of a basic feature imbibed in the Constitution. Freedom to express oneself is indeed allowed to be enjoyed by the citizens to the fullest possible extent, yet with every right there is a corresponding duty attached. The principle behind Section 153A of the Indian Penal Code is to preserve religious/communal harmony and it is the duty of every citizen that while he enjoys his right to express himself, he preserves religious harmony. This indeed is the positive aspect of Secularism. The Delhi High Court at this stage cannot check the veracity of these video clippings which is a matter of appreciation of evidence to be done at a later stage. Besides, there is no time stamp available at this stage on these video clippings for which proper investigation has to be done. The Delhi High Court cannot interfere with the ongoing investigation. With regard to ground of parity, for applicability of the same it has to be seen whether the accused stands on the same footing as the accused already released on bail. It is agreed that there was no specific allegation even against the other accused (released on bail) in the FIR. The other accused (released on bail) was neither seen in any of the alleged video clippings nor was it prima facie seen that any such act was committed at his behest. Even from the Call Detail Record, the other accused (released on bail) was present on the spot only till 11 a.m.; this however, is not the case of the applicant/accused. On prima facie perusal of record, the present applicant/accused stands on a different footing from the other accused (released on bail). Considering the fact that investigation of the present case is at a nascent stage, the nature of accusations levelled against the accused persons and also taking into account the overall facts and circumstances of the case, the Delhi High Court is not inclined to allow the present application at this stage. Accordingly, the application stands dismissed. In view of the above, the present application stands disposed of. Proceedings be sent to the Court concerned through proper channel. Copy of the order be sent to Learned Counsel for the applicant/accused through email/WhatsApp., FIR no. 152/2021 PS Connaught Place State Vs. Vinod Sharma under sections 188, 269, 270, 153A of the Indian Penal Code, Section 3 of the Epidemic Diseases Act. In view of the directions of the Hon'ble High Court of Delhi vide order No. 439‑470/RG/DHC‑2021 dated 22.07.2021, matters are being taken up through video conferencing using Cisco Webex. It is certified that there was no interruption during the proceeding and all the parties were heard. Present: Sh. Kartikay Sharma, Learned Additional Public Prosecutor for the State. Sh. Ashwani Kumar Dubey, Sh. Nirmal Kumar Amabastha, Sh. Manish Kumar, Sh. Avadh Kaushik, Sh. Rudra Pratap Singh, Sh. Vikram Singh, Sh. Rakshpal Singh, Sh. Vinay Gaur and Sh. Yashveer Singh, Learned Counsel for the applicant/accused. SHO/Insp. Inder Kumar Jha & Investigating Officer/Sub Inspector Ramkesh Meena, PS Connaught Place. This is an application for grant of bail under Section 437 of the Code of Criminal Procedure to the applicant/accused namely Vinod Sharma. Reply has been filed by the Investigating Officer wherein the Investigating Officer has vehemently opposed the bail application on the ground that according to Call Detail Record report, as of now, the accused was present on the spot at or around 2 p.m. Presence of the accused is confirmed through obtained video footage. Release of the applicant/accused will be prejudicial in maintaining public tranquillity and will further create serious law and order situation. There are chances that the applicant/accused will create communal disharmony. Sh. Ashwani Dubey, Learned Counsel for the applicant/accused submits that from the reading of the FIR nothing inculpatory can be ascertained even prima facie against the applicant/accused. The FIR is lodged against unknown persons, the applicant/accused is not even named in the said FIR. The applicant/accused was not even present in the gathering at the time when the alleged offence under Section 153A of the Indian Penal Code was committed. Learned Counsel has also placed reliance upon the order dated 11.08.2021 passed by the Delhi High Court by virtue of which bail was granted to the other accused allegedly involved in the present matter who had acted in a bonafide manner and had duly offered his assistance to the Investigating Agency. Sh. Avadh Kaushik, Learned Counsel for the applicant/accused submits that there is delay in registration of the FIR which hampers the case of the investigating agency in itself. That the applicant/accused has been falsely implicated in the present matter, and even after arrest, the applicant/accused was taken to an unknown place. Learned Counsel submits that this is a clear case of atrocity committed by the police on innocent citizens. Other Learned Counsels appearing for the applicant/accused submitted on similar lines and claimed release of the applicant/accused on the ground of parity. Per Contra, Learned Additional Public Prosecutor for the State submits that the gathering was held without any permission and was held near the Parliament during its ongoing Monsoon Session. That the applicant/accused violated the guidelines issued to contain the spread of COVID‑19 pandemic, and also Section 144 of the Code of Criminal Procedure which was applicable in that place during that time. Learned Additional Public Prosecutor for the State submits that it is a clear case of involvement of the applicant/accused as the event was organized at the behest of the applicant/accused and thus an offence under Section 153A of the Indian Penal Code was committed in the presence of the applicant/accused. Heard both sides at length. Perused the record. The Hon'ble Supreme Court of India in Prahlad Singh Bhati vs NCT of Delhi AIR 2001 SC 1444 held that while granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting bail the legislature has used the words reasonable grounds for believing instead of the evidence which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt. Indeed it is a difficult time for everyone during this pandemic and serious view should be taken against those who violate the guidelines/restrictions to contain the spread of COVID‑19 pandemic, yet the offences as far as breach of these guidelines are concerned are bailable in nature, which can be dealt by the Trial Court on merits. As far as the offence under Section 153A of the Indian Penal Code is concerned, even though from perusal of the FIR no specific allegation against the applicant/accused can be ascertained and the FIR is silent with regard to commission of offence under Section 153A, prima facie perusal of all the material available on record including the alleged video footage fails to find support in favour of the applicant/accused. The Delhi High Court has seen the alleged video clippings and the Call Detail Record shows that the applicant/accused was present on the spot at the same time when other accused persons Deepak Singh and Preet Singh were also present and alleged speeches were made. The Delhi High Court at this stage cannot check the veracity of these video clippings which is a matter of appreciation of evidence to be done at a later stage. Besides, there is no time stamp available at this stage on these video clippings for which proper investigation has to be done. The Delhi High Court cannot interfere with the ongoing investigation. With regard to ground of parity, for applicability of the same it has to be seen whether the accused stands on the same footing as the accused already released on bail. It is agreed that there was no specific allegation even against the other accused (released on bail) in the FIR. The other accused (released on bail) was neither seen in any of the alleged video clippings nor was it prima facie seen that any such act was committed at his behest. Even from the Call Detail Record, the other accused (released on bail) was present on the spot only till 11 a.m.; this however, is not the case of the applicant/accused. On prima facie perusal of record, the present applicant/accused stands on a different footing from the other accused (released on bail). Considering the fact that investigation of the present case is at a nascent stage, the nature of accusations levelled against the accused persons and also taking into account the overall facts and circumstances of the case, the Delhi High Court is not inclined to allow the present application at this stage. Accordingly, the application stands dismissed. In view of the above, the present application stands disposed of. Proceedings be sent to the Court concerned through proper channel. Copy of the order be sent to Learned Counsel for the applicant/accused.
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Present: Mr. R. S. Rai, Senior Advocate; Mr. Chetan Mittal, Senior Advocate; Mr. Pawan Narang, Advocate; Mr. Kunal Mulwani, Advocate; Mr. Gautam Dutt, Advocate; Mr. Mayank Aggarwal, Advocate; Mr. Udit Garg, Advocate; Mr. Arjun S. Rai, Advocate; Mr. Farhad Kohli, Advocate; Ms. Sukhriti Rai, Advocate for the petitioners; Mr. Vinod Ghai, Senior Advocate General; Mr. Gaurav Dhuriwala, Advocate; Mr. Ferry Sofat, Advocate; and Mr. Jasdev Mehndiratta, Additional Advocate General, Punjab., It is the contention of the learned Senior Counsel for the petitioners that the First Information Report registered against the petitioners on 05.05.2023 attributes allegations against petitioner No.1 with regard to an offence alleged to have been committed under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The allegations clearly indicate that the petitioners were not known to the complainant and there is no assertion in the First Information Report that they had ever met earlier. Consequently, the use of such words in the First Information Report does not arise. It has been stated that the offence has been attributed to the petitioner for making the offence non‑bailable whereas other offences under the Indian Penal Code are bailable. The requirement of Section 8 of the 1989 Act, which deals with the presumption of an offence, has also not been complied with. Reference has been made to Section 8(c) and it is contended that the accused must have personal knowledge of the victim or his family for the presumption to arise. On this basis, it is argued that the alleged offence therefore cannot be said to have been committed by the petitioners., Senior Counsel asserts that he is only insisting upon the grant of interim bail to petitioner No.1, who is a 31‑year‑old lady and the senior correspondent of Times Now Nav Bharat Unit of Times Network, who, along with the other two petitioners, went to Ludhiana to attend an event relating to the inauguration of government‑run clinics on 05.05.2023 on an invitation received from the Media Coordinator and was performing her duty. It has also been asserted that she suffered panic attacks, and on instructions sought from Ms. Chanchal Kumari, Deputy Superintendent Women Jail, Ludhiana, the Learned Advocate General stated that petitioner No.1 is doing well. Counsel contends that when the offence has not been made out, interim bail may be granted to petitioner No.1., The Learned Advocate General, Punjab, has referred to Section 15A(3) of the 1989 Act to contend that the victim or the dependent thereof has a right to reasonable, accurate, and timely notice of any court proceedings, including bail proceedings, and that the Special Prosecutor or the State Government must inform the victim mandatorily about any proceedings under this Act. On this basis, he contends that time may be granted to the State to inform the complainant, i.e., the victim. Reference has been made to the order dated 29.10.2021 in Criminal Appeal No. 1278 of 2021 titled Hariram Bhambhi v. Satyanarayan and another, to contend that without hearing the complainant, bail should not be granted to the accused., The Learned Advocate General, Punjab, further states that he has not received the records of the case and therefore is unable to make detailed submissions to the Punjab and Haryana High Court. He asserts that the First Information Report is not an encyclopedia and, without the records, he is unable to further assist the Court. It has also been asserted that the petitioners had a remedy under Section 439 of the Criminal Procedure Code before the Special Court but have approached this Court under Section 482 of the Criminal Procedure Code for quashing of the First Information Report and for grant of regular bail under Section 439 of the Criminal Procedure Code. On this basis, he contends that the prayer of the petitioners may not be accepted. It is submitted that the main allegations are against petitioner No.1 alone and therefore do not deserve the benefit as prayed for., Having considered the submissions made by counsel for the parties and after going through the First Information Report, the Punjab and Haryana High Court, at this stage, is of the prima facie view that the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is not made out when seen in the light of the provisions contained in Sub‑section 3 of Section 8 of the 1989 Act. Apart from this aspect, petitioner No.1, being a senior correspondent of a national network and a 31‑year‑old lady, deserves to be granted interim bail in the present facts and circumstances of the case. Objections raised by the Learned Advocate General will be considered on the next date of hearing when the reply to the petition and records of the case are available with him., Mr. Gaurav Dhuriwala, Learned Additional Advocate General, Punjab, shall ensure that the State informs the complainant about the pendency of the present case and the proceedings and will supply a copy of the petition. The case will be taken up for consideration on 08.05.2023., Petitioner No.1, Bhawana Gupta, daughter of Raj Kishore Gupta, is ordered to be released on interim bail subject to the satisfaction of the Chief Judicial Magistrate/Duty Magistrate, Ludhiana, till the next date of hearing., A copy of this order shall be supplied to the counsel for the petitioner as well as to Mr. Gaurav Dhuriwala, Additional Advocate General, Punjab, under the signatures of the Registrar (Judicial) of the Punjab and Haryana High Court. Dated 06.05.2023. Mamta Sikka.
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Writ Petition (Madras Division) Nos. 3893 and 3899 of 2024 filed by A. Abdul Malik. The respondents are: the District Collector, Office of the Collectorate, Sivagangai, Sivagangai District; the Superintendent of Police, Sivagangai District; the Revenue Divisional Officer, Sivagangai, Sivagangai District; the Tahsildar, Karaikudi Taluk, Karaikudi, Sivagangai District; the Inspector of Police, Karaikudi North Police Station, Sivagangai District; and Shanthi., Prayer: The petition is filed under Article 226 of the Constitution of India seeking a writ of mandamus directing the respondents to take action for the immediate release of the petitioner’s father’s body from the Old Government Hospital, Karaikudi and its return to the petitioner’s family for a peaceful burial in accordance with Islamic rites, and to provide adequate police protection to the petitioner’s family to prevent any further intimidation or violence., The second petition lists the respondents as: the District Collector, Office of the Collectorate, Sivagangai, Sivagangai District; the Revenue Divisional Officer, Devakottai Revenue Division, Devakottai, Sivagangai; the Superintendent of Police, Sivagangai District, Sivagangai; the Inspector of Police, Karaikudi North Police Station, Karaikudi, Sivagangai District; and Syed Ali Fatima., Prayer: The petition is filed under Article 226 of the Constitution of India seeking a writ of mandamus directing the first and second respondents to hand over the dead body of Balasubramanian, son of Udaiyan, kept in the mortuary of Government Headquarters Hospital, Karaikudi to the petitioner and to provide adequate police protection to the petitioner and his daughter Bavani to perform the final rites as per Hindu custom based on the petitioner’s representation dated 18 February 2024., Balasubramanian married B. Shanthi, the petitioner in W.P.(MD) No. 3899 of 2024, on 16 July 1988 as per Hindu rites and customs. A girl child, Bhavani, was born from the marriage. Balasubramanian was employed as a driver in Tamil Nadu State Transport Corporation, Karaikudi Branch. He developed an illicit intimacy with Syed Ali Fatima, embraced Islam and became Anwar Hussain. He married Syed Ali Fatima as per Islamic rites and customs on 19 February 1999. Abdul Malik, petitioner in W.P.(MD) No. 3893 of 2024, was born from that relationship., Balasubramanian, also known as Anwar Hussain, passed away on 17 February 2024. His death has given rise to a dispute over his dead body. The question is to whom it should be handed over and how it should be disposed of. Shanthi asserts her rights as the legally wedded wife of the deceased and the authorities are in a quandary as to what to do. The body is lying in the mortuary of Government Hospital, Karaikudi. Both Shanthi and Abdul Malik are before this High Court., Balasubramanian notified through the Tamil Nadu Government Gazette dated 4 August 2017 that he converted to Islam with the name Anwar Hussain on 10 May 2016. He thereafter filed H.M.O.P. No. 34 of 2019 in the Sub Court, Mudhukulathur for dissolving his marriage with Shanthi that was solemnised on 16 July 1988. The order was allowed vide order dated 13 December 2021. Balasubramanian himself had marked a copy of the order made in M.C. No. 17 of 1993 whereby maintenance was awarded in favour of Shanthi. Yet the learned trial Judge chose to hold that Shanthi had committed cruelty on her husband and hence granted divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955. Aggrieved by the same, Shanthi filed H.M.C.M.A. No. 5 of 2022 and the order passed by the trial Court was set aside by the learned Additional District Judge, Paramakudi on 14 June 2023. The legal consequence flowing out of these proceedings is that Shanthi alone can be considered the legally wedded wife and Bhavani alone is the legitimate child. The marriage between Balasubramanian (Anwar Hussain) and Syed Ali Fatima cannot be legally recognised. Syed Ali Fatima cannot be conferred the status of wife in the eye of law., Lily Thomas v. Union of India (2000) 6 SCC 224 was decided by a bench of two judges. Both judges rejected the argument of a non‑Muslim male who converted to Islam and married again without dissolving the first marriage, holding that prosecuting for the offence under Section 494 of the Indian Penal Code would be a violation of Articles 21 and 25 of the Constitution of India. They held categorically that the second marriage solemnised during the subsistence of the first marriage is an offence punishable under the penal law. The freedom guaranteed under Article 25 of the Constitution is such that it does not encroach upon a similar freedom of other persons. Under the constitutional scheme, every person has a fundamental right not merely to entertain the religious belief of his choice, but also to exhibit this belief and ideas in a manner which does not infringe the religious right and personal freedom of others. It has been further held that under Hindu law, marriage is a sacrament and that it has to be preserved., I held vide order dated 11 February 2024 in Criminal Original Petition (Madras Division) No. 2228 of 2024 (S. Gurumoorthi v. State represented by the Sub‑Inspector of Police, Theppakulam Police Station) that the right to participate in the funeral ceremony of the parent or spouse falls within the sweep of the right under Article 25. Shanthi as well as Bhavani, as the legally wedded wife and legitimate daughter of the deceased, are entitled to offer their respects in the customary religious manner. The authorities concerned are directed to hand over the body of the deceased to Shanthi and Bhavani so that they can perform certain customary religious ceremonies. This must be done within the premises of the hospital in the open ground and concluded within thirty minutes., There are two issues involved here – the rights of those who are alive and the right of the deceased. I have consistently held that even dead persons are entitled to certain rights and that courts must have due regard to the same. While Shanthi and Bhavani can discharge their fundamental rights under Article 25 of the Constitution of India, that cannot extend to the disposal of the body of the deceased. It is beyond dispute that the deceased died a Muslim. In Lily Thomas, it was held that the apostasy of the husband cannot take away the religious rights of the wife. Accordingly, I have permitted Shanthi and the daughter to perform certain ceremonies. However, Anwar Hussain must be buried only as per Islamic rites and customs. Courts are obliged to give effect to the intention of the testator while construing wills. Anwar Hussain obviously would have intended that he should be buried only as per Islamic rites. If Anwar Hussain had executed any will or testament regarding the manner of disposal of his body, I would not have hesitated to uphold the same. Such a testament is not available. In view of the undisputed position that he died a Muslim, I permit Amanath Nagar Pallivasal, Karaikudi, in which he was a member, to take charge immediately after Shanthi and Bhavani and their relatives complete their rites. Syed Ali Fatima and Abdul Malik are entitled to participate in the funeral rites after the Pallivasal takes over. The Inspector of Police, Karaikudi North Police Station is directed to ensure that both parties adhere to the direction given above. If anyone endeavours to act in defiance of this order, the Inspector of Police, Karaikudi North Police Station shall ensure that law takes its own course. These writ petitions are disposed of. No costs. Dated 19 February 2024., Index: Yes / No. Internet: Yes / No. Note: Issue order copy on 19 February 2024.
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The petitioners have instituted proceedings under Article 32 of the Constitution challenging the constitutional validity of the Electoral Bond Scheme which introduced anonymous financial contributions to political parties. The petitioners have also challenged the provisions of the Finance Act 2017 which, among other things, amended the provisions of the Reserve Bank of India Act 1934, the Representation of the People Act 1951, the Income Tax Act 1961, and the Companies Act 2013., Section 31 of the Reserve Bank of India Act stipulates that only the Reserve Bank of India or the Central Government authorized by the Reserve Bank of India Act shall draw, accept, make, or issue any bill of exchange or promissory note for payment of money to the bearer of the note or bond. The Finance Act amended the Reserve Bank of India Act by including Section 31(3) which permits the Central Government to authorize any scheduled bank to issue electoral bonds., To understand the context in which the legislative amendments were introduced, it is necessary to juxtapose the amendments with the regime on financial contributions to political parties. The law relating to financial contributions to political parties focuses on (a) contributions by corporate entities; (b) disclosure of information on contributions; and (c) income tax exemptions for donations., Corporate contributions: The Companies Act 1956 and the provisions of the Representation of the People Act, when they were enacted, did not regulate contributions to political parties by companies and individuals. The Companies (Amendment) Act 1960 included Section 293A to regulate contributions by companies. The provision stipulated that companies cannot contribute to (a) any political party; and (b) to any individual or body for any political purpose, amounts exceeding twenty‑five thousand rupees in a financial year or five percent of its average net profits during the three financial years immediately preceding the contribution, whichever is greater. Companies were also required to disclose the amount contributed in a financial year in their profit and loss accounts and furnish particulars of the total amount contributed and the name of the party, individual or entity to which such amount was contributed., Companies defaulting in complying with the disclosure requirement were punishable with a fine which may extend to five thousand rupees., The Companies (Amendment) Act 1969 amended Section 293A to ban contributions to political parties and for political purposes. Companies acting in contravention of the prohibition were punishable with a fine which could extend to five thousand rupees, and every officer who defaulted was punishable with imprisonment which could extend to three years, besides being liable to fine., The Companies (Amendment) Act 1985 amended Section 293A to permit contributions to political parties and for political purposes once again. The provision states that no Government company and no other company which has been in existence for less than three financial years shall contribute any amount directly or indirectly to any political party or for any political purpose to any person. A company not falling within those categories may contribute any amount directly or indirectly to any political party or for any political purpose, provided that the aggregate amount in any financial year shall not exceed five percent of its average net profits determined in accordance with the provisions of sections 349 and 350 during the three preceding financial years. A resolution authorising the contribution must be passed by the Board of Directors., The provision also deems a donation or subscription given by a company on its behalf to a person who is carrying out activity likely to support a political party as a contribution for a political purpose. Direct or indirect expenditure by companies on advertisements on behalf of political parties or publications for the advantage of a political party are also regarded as contributions for political purposes., Three other restrictions were included: (a) the company (which is not a government company) should have been in existence for more than three years; (b) contributions could only be made when a resolution authorising the contributions had been passed at a meeting of the Board of Directors; and (c) the penal consequences were made more stringent. A fine extendable to three times the amount contributed could be imposed, and every officer of the company who defaulted was punishable with imprisonment for a term which may extend to three years and also liable to fine., Section 182 of the Companies Act 2013 substantively incorporated the provisions of Section 293A of the 1956 Act, as amended in 1985. Section 182 enables a company to contribute any amount directly or indirectly to any political party. The provision bars a Government company and a company which has been in existence for less than three financial years from contributing to a political party. The provisos to the provision prescribe the following two conditions: (a) the aggregate amount contributed by the company in any financial year shall not exceed seven and a half percent of its average net profits during the three immediately preceding financial years; and (b) a contribution can be made only if the Board of Directors issues a resolution authorising the contribution at a meeting. Such a resolution shall, subject to the other provisions of the section, be deemed to be a justification in law for the making and acceptance of the contribution authorised by the Board., Sub‑section (3) of Section 182 mandates every company to disclose in its profit and loss account any amount contributed by it to any political party during the financial year with specific particulars of the total amount contributed along with the name of the political party to which the contribution was made., Section 182 of the Companies Act 2013 made two modifications from Section 293A of the Companies Act 1956: (a) the cap on the contributions which can be made by companies was increased from five percent to seven and a half percent of their average net profits; and (b) more stringent consequences for violation were imposed. The fine was extendable to five times the contribution., The Finance Act 2017 made three changes to Section 182 of the Companies Act: (a) the first proviso to Section 182(1) which prescribed a cap on corporate funding was omitted; (b) Section 182(3) was amended to require only a disclosure of the total amount contributed to political parties by a company in a financial year, excluding the requirement to disclose the particulars of the amount contributed to each political party; and (c) Sub‑section 3A was introduced, by which a company could contribute to a political party only by a cheque, bank draft, or electronic clearing system. The proviso to the sub‑section states that a company may also contribute through any instrument issued pursuant to any scheme notified under any law for the time being in force for contribution to political parties., Curbing black money: The Taxation Laws (Amendment) Act 1978 included Section 13A to the Income Tax Act exempting the income of political parties through financial contributions and investments from income tax. The objects and reasons of the Amending Act stipulated that tax exemption would increase disposable funds from legitimate sources. However, to secure the benefit of exemption, the following conditions were required: (a) the political party was required to keep and maintain books of account and other documents which would enable the Assessing Officer to properly deduce its income; (b) the political party had to maintain a record of voluntary contributions in excess of twenty thousand rupees, along with the name and address of the person who made such contributions; and (c) the accounts of the political party were required to be audited by an accountant., By the Election and Other Related Laws (Amendment) Act 2003, Sections 80GGB and 80GGC were inserted in the Income Tax Act making contributions made to political parties tax deductible. The speech of Mr Arun Jaitley, the then Minister of Law and Justice while moving the Bill indicates that contributions were made tax deductible to incentivise contributions through cheque and other banking channels., The Finance Act 2017 made the following amendments to Section 13A: (a) the political party was not required to maintain a record of contributions if the contribution was received by electoral bonds; and (b) the political party must receive a donation in excess of two thousand rupees only by a cheque, bank draft, electronic clearing system or through an electoral bond., Transparency: The Election and Other Related Laws (Amendment) Act 2003 amended the provisions of the Representation of the People Act. Section 29C of the Representation of the People Act was introduced for requiring each political party to declare the details of the contributions received., The treasurer of a political party or any other person authorized by the political party must in each financial year prepare a report in respect of the contributions in excess of twenty thousand rupees received by the party from a person or company other than Government companies in that financial year. The report prepared must be submitted to the Election Commission of India before the due date for furnishing a return of income of that financial year under the Income Tax Act. A political party which fails to submit the report shall not be entitled to any tax relief as provided under the Income Tax Act., The provision was amended by the Finance Act 2017 to include a proviso by which the political party was not required to disclose details of contributions received by electoral bonds., Annexure I to this Judgment depicts in a tabular form the amendments to the provisions of the Representation of the People Act, the Income Tax Act, the Companies Act, and the Reserve Bank of India Act by the Finance Act 2017., The effect of the amendments introduced by the Finance Act to the above legislations is that: (a) a new scheme for financial contribution to political parties is introduced in the form of electoral bonds; (b) the political parties need not disclose the contributions received through electoral bonds; (c) companies are not required to disclose the details of contributions made in any form; and (d) unlimited corporate funding is permissible., Objections of the Reserve Bank of India and the Election Commission of India to the Electoral Bond Scheme: On 2 January 2017, the Reserve Bank of India wrote a letter to the Joint Secretary in the Ministry of Finance on the proposal of the Government of India to enable scheduled banks to issue electoral bearer bonds for the purpose of donations to political parties before the Finance Act 2017 was enacted. The Reserve Bank of India objected to the proposal on the ground that (a) the amendment would enable multiple non‑sovereign entities to issue bearer instruments, which would militate against the Reserve Bank of India's sole authority for issuing bearer instruments and has the potential of becoming currency; electoral bonds can undermine the faith in banknotes issued by the Central Bank if the bonds are issued in sizable quantities; (b) though the identity of the person or entity purchasing the bearer bond will be known because of the Know Your Customer requirement, the identities of the intervening persons/entities will not be known, which would impact the principles of the Prevention of Money Laundering Act 2002; and (c) the intention of introducing electoral bonds can be accomplished by cheque, demand draft, and electronic and digital payments. There is no special need for introducing a new bearer bond in the form of electoral bonds., On 30 January 2017, the Ministry of Finance responded to the observations of the Reserve Bank of India and stated that (a) the Reserve Bank of India has not understood the core purpose of electoral bonds which is to keep the identity of the donor secret while at the same time ensuring that the donation is only made from tax‑paid money; and (b) the fear that electoral bonds might be used as currency is unfounded because there is a time limit for redeeming the bonds., By a letter dated 4 August 2017, the Deputy Governor of the Reserve Bank of India stated that India can consider issuing the electoral bonds on a transitional basis through the Reserve Bank of India under the existing provisions of Section 31(1) of the Reserve Bank of India Act. The Reserve Bank of India recommended the incorporation of the following safeguards to minimise the inherent scope of misuse of the bonds for undesirable activities: (a) the electoral bonds may have a maximum tenure of fifteen days; (b) the electoral bonds can be purchased for any value in multiples of a thousand, ten thousand, or a lakh of rupees; (c) the purchase of electoral bonds would be allowed from a Know Your Customer compliant bank account of the purchaser; (d) the electoral bonds can be redeemed only upon being deposited into the designated bank account of an eligible political party; (e) the sale of electoral bonds will be open only for a limited period, may be twice a year for seven days each; and (f) the electoral bonds will be issued only at the Reserve Bank of India, Mumbai., The draft of the Electoral Bond Scheme was circulated to the Reserve Bank of India for its comments. The draft conferred notified scheduled commercial banks, apart from the Reserve Bank of India, with the power to issue electoral bonds. The Reserve Bank of India objected to the draft Scheme by a letter dated 14 September 2017. The Reserve Bank of India stated that permitting a commercial bank to issue bonds would have an adverse impact on public perception about the Scheme, as also the credibility of India’s financial system in general and the central bank in particular. The Reserve Bank of India again flagged the possibility of shell companies misusing bearer bonds for money laundering transactions. The Reserve Bank of India recommended that electoral bonds may be issued in electronic form because it would (a) reduce the risk of their being used for money laundering; (b) reduce the cost; and (c) be more secure., The Electoral Bond Scheme was placed for deliberation and guidance by the Reserve Bank of India before the Committee of the Central Board. The Committee conveyed serious reservations on the issuance of electoral bonds in the physical form. The reservations were communicated by the Reserve Bank of India to the Finance Minister by a letter dated 27 September 2017. The reservations are catalogued below: (a) issuance of currency is a monopolistic function of a central authority which is why Section 31 of the Reserve Bank of India Act bars any person other than the Reserve Bank of India from issuing bearer bonds; (b) issuance of electoral bonds in the scrips will run the risk of money laundering since the consideration for transfer of scrips from the original subscriber to a transferee will be paid in cash, leaving no trail of transactions; (c) issuance of electoral bonds in the scrip form could also expose it to the risk of forgery and cross‑border counterfeiting besides offering a convenient vehicle for abuse by aggregators; and (d) the electoral bond may not only be seen as facilitating money laundering but could also be projected, albeit wrongly, as enabling it., On 26 May 2017, the Election Commission of India wrote to the Ministry of Law and Justice that the amendments to the Income Tax Act, the Representation of the People Act, and the Companies Act introduced by the Finance Act 2017 will have a serious impact on transparency of political finance/funding of political parties. The letter notes that the amendment to the Representation of the People Act by which donations through electoral bonds were not required to be disclosed is a retrograde step towards transparency of donations: (ii) it is evident from the amendment that any donation received by a political party through an electoral bond has been taken out of the ambit of reporting under the Contribution Report as prescribed under Section 29C of the Representation of the People Act 1951 and therefore, this is a retrograde step as far as transparency of donations is concerned and this proviso needs to be withdrawn; (iii) moreover, in a situation where contributions received through electoral bonds are not reported, on perusal of the contribution reports of the political parties, it cannot be ascertained whether the political party has taken any donation in violation of provisions under Section 29B of the Representation of the People Act 1951 which prohibits the political parties from donations from Government Companies and foreign sources., Referring to the deletion of the provision in the Companies Act requiring companies to disclose particulars of the amount contributed to specific political parties, the Election Commission of India recommended that companies contributing to political parties must declare party‑wise contributions in the profit and loss account to maintain transparency in the financial funding of political parties. Further, the Election Commission also expressed its apprehension to the deletion of the first proviso to Section 182(1) by which the cap on corporate donations was removed. The Election Commission recommended that the earlier provision prescribing a cap on corporate funding be re‑introduced because: (a) unlimited corporate funding would increase the use of black money for political funding through shell companies; and (b) capped corporate funding ensured that only profitable companies with a proven track record could donate to political parties., Electoral Bond Scheme: On 2 January 2018, the Ministry of Finance in the Department of Economic Affairs notified the Electoral Bond Scheme 2018 in exercise of the power under Section 31(3) of the Reserve Bank of India Act. The Electoral Bond is a bond issued in the nature of a promissory note which is a bearer banking instrument and does not carry the name of the buyer. The features of the Scheme are as follows: (a) The bond may be purchased by a person who is (i) a citizen of India; or (ii) incorporated or established in India. Person includes (a) an individual; (b) a Hindu undivided family; (c) a company; (d) a firm; (e) an association of persons or a body of individuals, whether incorporated or not; (f) every artificial juridical person, not falling within any of the above categories; and (g) any agency, office, or branch owned or controlled by such a person. An individual can buy bonds either singly or jointly with other individuals; (b) an Electoral Bond can only be encashed by an eligible political party. A political party, to be eligible to receive an electoral bond, has to be registered under Section 29A of the Representation of the People Act, and ought to have secured not less than one percent of the votes polled in the last general election to the House of the People or the Legislative Assembly of the State. An eligible political party can encash a bond only through a bank account with an authorised bank. The scheme has notified the State Bank of India as the bank authorised to issue and encash bonds; (c) the instructions issued by the Reserve Bank of India regarding Know Your Customer apply to buyers of the bond. The authorised bank may call for additional KYC documents if necessary; (d) payments for the issuance of the bond are accepted in Indian rupees, through demand draft, cheque, Electronic Clearing System or direct debit to the buyer’s account. Where payment is made by cheque or demand draft, it must be drawn in favour of the issuing bank at the place of issue; (e) the bonds are issued in denominations of Rs 1,000, 10,000, 1,00,000, 10,00,000 and 1,00,00,000; (f) the bond is valid for fifteen days from the date of issue. No payment will be made to a political party if the bond is deposited after the expiry of fifteen days. If the bond is not encashed within fifteen days, it will be deposited by the authorised bank with the Prime Minister’s Relief Fund; (g) a buyer who wishes to purchase electoral bonds can apply in the format specified in Annexure II of the Scheme. The issuing branch shall issue the bond if all the requirements are fulfilled.
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The application shall be rejected if the application is not Know Your Customer compliant or if the application does not meet the requirements of the scheme. The bond issued is non‑refundable. The information furnished by the buyer is to be treated as confidential by the authorized bank. It shall be disclosed only when demanded by a competent Supreme Court of India or upon the registration of a criminal case by any law enforcement agency. The bond shall be available for purchase for a period of ten days on a quarterly basis, in the months of January, April, July, and October as specified by the Central Government. Bonds will be available for an additional period of thirty days as specified by the Central Government in a year when General Elections to the Lok Sabha are to be held. No interest is payable on the bond. No commission, brokerage, or any other charges for issue of a bond shall be payable by the buyer against purchase of the bond. The value of the bonds shall be considered as income by way of voluntary contributions received by an eligible political party for the purpose of exemption from Income Tax under Section 13A of the Income Tax Act. The bonds are not eligible for trading., The petitioners instituted proceedings under Article 32 seeking a declaration that the Electoral Bond Scheme and the following provisions be declared unconstitutional: Section 135 of the Finance Act 2017 and the corresponding amendment in Section 31 of the Reserve Bank of India Act; Section 137 of the Finance Act 2017 and the corresponding amendment in Section 29C of the Representation of People Act; Section 11 of the Finance Act 2017 and the corresponding amendment in Section 13A of the Income Tax Act; and Section 154 of the Finance Act 2017 and the corresponding amendment to Section 182 of the Companies Act., In its order dated 13 April 2019, the Supreme Court of India observed that the amendments which have been challenged give rise to weighty issues which have a bearing on the sanctity of the electoral process. The Court directed all political parties, in the interim, to submit details of contributions received through electoral bonds (with particulars of the credit received against each bond, date of credit, and particulars of the bank account to which the amount has been credited) to the Election Commission of India in a sealed cover. The prayer for interim relief was rejected by observing that the operations under the scheme are not placed behind iron curtains incapable of being pierced. The financial statements of companies registered under the Companies Act, 2013 which are filed with the Registrar of Companies are accessible online on the website of the Ministry of Corporate Affairs for anyone. They can also be obtained in physical form from the Registrar of Companies upon payment of prescribed fee. Since the scheme mandates political parties to file audited statements of accounts and also since the Companies Act requires financial statements of registered companies to be filed with the Registrar of Companies, the purchase as well as encashment of the bonds, happening only through banking channels, is always reflected in documents that eventually come to the public domain. All that is required is a little more effort to cull out such information from both sides (purchaser of bond and political party) and do some match. Therefore, it is not as though the operations under the scheme are behind iron curtains incapable of being pierced., The petitioners have also challenged the introduction of the Finance Act as a Money Bill under Article 110 of the Constitution. The issue of the scope of Article 110 has been referred to a seven‑Judge Bench and is pending adjudication. The petitioners submitted that they would press the grounds of challenge to the Finance Act independent of the issue on Money Bills in view of the upcoming elections to Parliament., By an order dated 31 October 2023, the batch of petitions was directed to be listed before a Bench of at least five Judges in view of the provisions of Article 145(3) of the Constitution. It is in this background that the challenge to the Electoral Bond Scheme and the amendments is before the Constitution Bench., The present batch of petitions gives rise to the following issues: (a) Whether unlimited corporate funding to political parties, as envisaged by the amendment to Section 182(1) of the Companies Act, infringes the principle of free and fair elections and violates Article 14 of the Constitution; and (b) Whether the non‑disclosure of information on voluntary contributions to political parties under the Electoral Bond Scheme and the amendments to Section 29C of the Representation of People Act, Section 182(3) of the Companies Act and Section 13A(b) of the Income Tax Act are violative of the right to information of citizens under Article 19(1)(a) of the Constitution., Submissions of petitioners – Mr Prashant Bhushan, learned counsel, made the following submissions: There is no rational basis for the introduction of electoral bonds. The main objective of introducing the Electoral Bond Scheme, as reflected in the article written by the then Finance Minister, Mr Arun Jaitley, was that it would enhance transparency in electoral funding since electoral bond transactions can only be made through legitimate banking channels. However, cash donations are still permitted even after the introduction of the Electoral Bond Scheme. The Central Government ignored the objections which were raised by both the Reserve Bank of India and the Election Commission of India to the Electoral Bond Scheme. The statutory amendments and the Electoral Bond Scheme which mandates non‑disclosure of information of electoral funding are unconstitutional because they defeat the purpose of introducing provisions mandating disclosure of information on political funding in the Representation of People Act and the Companies Act which was to enhance transparency in electoral funding; they violate Article 19(1)(a) which guarantees to the voter the right to information concerning the affairs of the public and the government; they violate Article 21 because the non‑disclosure of information of political contributions promotes corruption and quid pro quo arrangements. The available data indicates that more than ninety‑four percent of the total electoral bonds are purchased in denominations of rupees one crore, indicating that bonds are purchased by corporates and not individuals. The limited disclosure clause in the Electoral Bond Scheme prevents investigating agencies such as the Central Bureau of Investigation and the Enforcement Directorate from identifying corruption. They also violate the rights of shareholders of companies who are donating money to political parties by preventing disclosure of information to them. The statutory amendments and the Electoral Bond Scheme subvert democracy and interfere with free and fair elections because the huge difference in the funds received by ruling parties in the States and Centre vitiates a level playing field between different parties and between parties and independent candidates. The right to information on funding of political parties is a natural consequence of the judgment of this Court in the Association for Democratic Reforms and People's Union for Civil Liberties because the underlying principle in the judgments is that an informed voter is essential for a functioning democracy., Mr Kapil Sibal, learned senior counsel, made the following submissions: The amendments and the Electoral Bond Scheme skew free and fair elections by permitting unlimited contributions to political parties by corporate entities and removing the requirement of disclosure of information about political funding. Freedom of a voter in the negative connotation refers to the freedom to cast their vote without interference and intimidation. Freedom in the positive connotation includes the freedom to vote on the basis of complete and relevant information, including information about financial contributions to political parties. The argument of the Union of India that courts should show judicial restraint is erroneous because the amendments in question relate to the electoral process and do not pertain to economic policy. The presumption of constitutionality should not apply to statutes which alter the ground rules of the electoral process. The principle underlying the presumption of constitutionality is that the legislature represents the will of the people and that it is validly constituted through free and fair elections. It would be paradoxical to accord a presumption of constitutionality to the very laws or rules that set the conditions under which the legislature comes into being. Corporate funding per se is violative of the Constitution because corporate entities are not citizens and thus are not entitled to rights under Article 19(1)(a). The funds contributed to the Electoral Bond Scheme can be used in any manner and their use is not restricted to electoral campaigns. The Electoral Bond Scheme severs the link between elections and representative democracy because those elected are inclined to fulfill the wishes of the contributors and not the voters. This could be through direct quid pro quo where an express promise is made to enact a policy in favour of the donor and indirect quid pro quo where there is an influence through access to policy makers. The Scheme promotes information asymmetry where the information about political donations is not disclosed to voters but the Central Government is privy to such information through the State Bank of India, which is the authorized bank under the scheme. The information asymmetry will ensure that a larger portion of the donations would be made to the ruling party at the Centre. According to the data, the political party at the Centre has received fifty‑seven percent of the total contributions made through electoral bonds. The Electoral Bond Scheme skews the principle of one person, one vote because it gives the corporates a greater opportunity to influence political parties and electoral outcomes. The amendment to Section 182(3) permits loss‑making companies to contribute to political parties, unlimited contributions to political parties enabling significant policy influence, and non‑disclosure of information on political funding to shareholders. The amendments permitting non‑disclosure of information on political funding are violative of the right to information under Article 19(1)(a). The right to information on funding of political parties is a natural consequence of the judgment of this Court in the Association for Democratic Reforms and People's Union for Civil Liberties because the underlying principle in the judgments is that an informed voter is essential for a functioning democracy. Information about funding to political parties is necessary for an informed voter since the Symbols Order 1968 and the provisions of the Tenth Schedule allow political parties to influence legislative outcomes and policies. The infringement of the right to information does not satisfy the proportionality standard vis‑à‑vis the purpose of curbing black money. Even if the argument that the Electoral Bond Scheme fulfills the purpose is accepted, non‑disclosure of information on political funding is not the least restrictive means to achieve the purpose. The infringement of the right to information does not satisfy the proportionality standard vis‑à‑vis the purpose of guaranteeing informational privacy because protecting donor privacy is not a legitimate purpose. There is no legitimate expectation of informational privacy to political contributions. The argument that it lies at the heart of privacy conflates speech with money. Secrecy of voting cannot be equated to political donations because while the former is an expression of political equality, the latter is contrary to political equality because it depends on the economic capacity of the contributor. Political funding is made to influence public policy. They are public acts which are by their very nature subject to public scrutiny. Even if donor privacy is necessary, on a balance, the public interest in free and fair elections trumps the private interest in confidentiality. Further, this Court has to balance between the possibility of victimisation on the disclosure of information and the infringement of the right to know. The amendment to Section 31 of the Reserve Bank of India Act is unconstitutional because of excessive delegation since it does not set out the contours of the scheme., Mr Shadan Farasat, learned counsel, made the following submissions: The Scheme does not effectively curb black money. Clause 14 of the Electoral Bond Scheme prohibits de jure trading of the bonds. However, trading is de facto permissible. Nothing prevents person A from purchasing the bond and trading it with person B who pays through cash. The right to information on political funding, which is traceable to Article 19(1)(a), can only be restricted on the grounds stipulated in Article 19(2). The purposes of curbing black money and recognizing donor privacy are not traceable to the grounds in Article 19(2). Even if the purposes are traceable to Article 19(2), the Scheme is unreasonable and disproportionate to the purpose of increasing political funding through banking channels and reducing political funding through non‑banking channels because the purpose is not satisfied: the regime still permits cash funding up to rupees two thousand; the operation of the Scheme increases anonymous funding through electoral bonds at the cost of contributions through regular banking channels; there is no rational nexus between the means and the purpose; other less restrictive means of contributing through banking channels are available; and the fifth prong of the proportionality analysis as laid down in Gujarat Mazdoor Sabha v. State of Gujarat and Ramesh Chandra Sharma v. State of Uttar Pradesh, that the legislation should have sufficient safeguard to prevent abuse, has also not been satisfied. The statutory amendments and the Scheme are manifestly arbitrary because large‑scale corruption and quid pro quo arrangements would go unidentified due to the non‑disclosure of information about political funding; they enable capture of democracy by wealthy interests; and they infringe the principle of one person‑one vote because a selected few overpower the voice of the masses because of their economic wealth. The deletion of the limit on corporate contributions is manifestly arbitrary because it permits donations by loss‑making companies, removes the control of shareholders over the decisions of the Board, and permits unlimited contribution by corporates thereby abrogating democratic principles. The provision permitting non‑disclosure of funding by companies is violative of the shareholders’ rights under Article 25 which includes the right of the shareholder to know how the resources generated from their property are utilized. Once a shareholder comes to know that a company is financing a political party and their conscience does not permit it, as an exercise of the right to conscience, the shareholder should be entitled to sell those shares; and if the shareholder feels that the political contributions are not a sound business decision, they must be entitled to exit the business by selling the shares. The information that would enable the shareholder to make such a decision is not disclosed, thus infringing the right under Article 19(1)(g)., Mr Nizam Pasha, learned counsel, made the following submissions: The Electoral Bond Scheme and the amendments are arbitrary as they permit Indian registered companies to purchase electoral bonds without considering their ownership and control. This goes against foreign investment laws in India, treating companies owned or controlled by non‑resident Indian citizens as foreign‑owned or controlled companies, without rational justification. The Electoral Bond Scheme is arbitrary due to its discriminatory and non‑transparent nature. It contradicts existing laws requiring transparency and verification of the beneficial ownership and source of funds. The amendments to Section 29C of the Representation of People Act and Section 182 of the Companies Act serve no purpose other than perpetuating illegal ends, as they exempt companies’ purchase of electoral bonds from public disclosure. This fails to achieve the scheme’s stated objective of curbing cash donations., Mr Vijay Hansari, learned senior counsel, made the following submissions: The objects and reasons of the Election and Other Related Laws (Amendment) Act 2003, which amended the Companies Act 1956, Income Tax Act 1961, and the Representation of People Act, indicate that the amendments were made to incentivise contributions through banking channels. Thus, the amendments to Section 13A of the Income Tax Act and Section 29C of the Representation of People Act are contrary to the object of inserting Section 13A and Sections 80GGB and 80GGC of the Income Tax Act. Since 1959, when companies were permitted to contribute to political parties, all companies were required to mandatorily disclose the total contributions made and the name of the party to which they have contributed. Further, ceiling limits for total contribution by companies were prescribed. The Finance Act 2017 does away with these transparency requirements. International perspectives on political funding regulations, including those from the United States, the United Kingdom, Switzerland and Singapore, emphasize the importance of transparency, disclosure, and reporting in political contributions. These examples underscore the global consensus on transparency in the political funding process., Mr Sanjay R. Hegde, learned senior counsel, made the following submissions: Public listed companies are subject to scrutiny since they raise funds from the public. Information pertaining to the company is essential to be brought to the public domain. This will enable informed debates and discussions regarding the use of money by such companies. Such information must particularly be made available to shareholders to enable them to make an informed choice with regard to trading of securities. Thus, the amendment to the Companies Act which removes the requirement of disclosure of information about political contributions is violative of the right to information of shareholders which flows from Article 19(1)(a). Public listed companies should not be allowed to make contributions without the consent of the majority of the shareholders or the consent of three‑fourths of shareholders. Non‑disclosure of information about political funding denies shareholders the right to choice that flows from Article 21. Shareholders are incapacitated from making a choice about whether they wish to invest in shares of a company which has contributed to a political party whose ideology that shareholder does not agree with. The amendment to Section 182(3) perpetuates the pre‑existing inequality in power between shareholders and the Board/Promoters/management and puts the shareholders in an even weaker position violating the right to substantive equality under Article 36., Mr P. B. Suresh, learned counsel, made the following submissions: The Scheme and amendments violate Articles 14 and 15 by disproportionately impacting regional political parties and political parties which represent marginalised and backward sections of society. The representation of the backward classes is low in the corporate sector. Thus, the Scheme has a disparate impact on parties whose social base is derived from the Scheduled Castes, Scheduled Tribes and backward classes. The presumption of constitutionality does not apply in full rigour to electoral laws because the incumbent legislators have a vested interest in shaping the laws that would make it easier for them to be re‑elected. The removal of the cap on corporate donations has strengthened the position of major political parties and created more barriers for the entry of new political parties. Political parties have a right to know the funding sources of rival political parties to enable them to critique it before the public., Submissions of Union of India – The learned Attorney General for India made the following submissions: Political parties are an integral product of a free and open society and play an important role in the administration of the affairs of the community. Accordingly, they are entitled to receive all support, including financial contributions. The Electoral Bond Scheme allows any person to transfer funds to political parties of their choice through legitimate banking channels instead of other unregulated ways such as direct transfer through cash. The Scheme ensures confidentiality of the contributions made to political parties. The benefit of confidentiality to contributors ensures and promotes contribution of clean money to political parties. Citizens do not have a general right to know regarding the funding of political parties. Right to know is not a general right available to citizens. The Supreme Court of India has evolved the right to know for the specific purpose of enabling and furthering the voters’ choice of electing candidates free from blemish. The influence of contributions by companies to political parties ought not to be examined by this Court. It is an issue of democratic significance and should be best left to the legislature., The learned Solicitor General of India made the following submissions: The legal framework prior to the enactment of the Electoral Bond Scheme was mostly cash‑based which incentivised infusion of black money into political parties, and consequently, into the electoral process in India. The Electoral Bond Scheme is an improvement on the prior legal framework. Donors to a political party often apprehended retribution from other political parties. Such apprehension incentivised donors to contribute unaccounted money to political parties to avoid identification and victimisation by other political parties. The Electoral Bond Scheme maintains the confidentiality of donors and thereby incentivises them to contribute clean money to political parties. In case the donor is a public company, they will have to declare the amount contributed in their books of account without disclosing the name of the political party. Similarly, the political parties will also have to disclose the total amount received through electoral bonds in their audited accounts filed before the Election Commission of India. This framework ensures a balance between clean money coming into the system as against the right to information of citizens. The state has a positive obligation to safeguard the privacy of its citizens, which necessarily includes the citizens’ right to political affiliation. The right of a buyer to purchase electoral bonds without having to disclose their preference of political party secures the buyer’s right to privacy. The Electoral Bond Scheme has been enacted in pursuance of a legitimate state interest – to shift from cash‑driven, unregulated and unaccounted cash‑based political donations to a regulated, digital and legal political donation framework. The provisions of the Electoral Bond Scheme have a specific object and purpose of curbing black money and protecting donor privacy: Clause 3(3) imposes a pre‑condition that only a registered political party which has secured at least one per cent of the votes polled in the last general election would be eligible to receive bonds. This provision ensures that ghost political parties are barred from seeking and receiving political funding. Clause 4 requires a buyer of electoral bonds to meet the requisite Know Your Customer norms. This ensures that only KYC‑compliant persons are entitled to buy electoral bonds. The limited validity period of fifteen days ensures that the bond is not used as a parallel currency. Clause 7(4) mandates the authorized bank to treat the information furnished by a buyer as confidential which shall not be disclosed to any authority, except when directed by a competent Supreme Court of India or upon registration of a criminal case by any law enforcement agency. This provision protects the privacy and personal details of the buyer vis‑à‑vis the state. Clause 11 mandates that all payments for the purchase of electoral bonds shall be accepted through banking channels. This provision curbs the circulation of black money. The right of a citizen to know how political parties are being funded must be balanced against the right of a person to maintain privacy of their political affiliations. Donating money to one’s preferred party is a form of political self‑expression, which lies at the heart of privacy. Maintaining anonymity of donations to political parties is a part of the concept of secret ballot because it enables a person to make political choices without any fear of victimisation or retaliation. The right to information only operates against information in the possession or in the knowledge of the state. It cannot operate for seeking information not in the knowledge or possession of the state. The amendments to the Reserve Bank of India Act, the Representation of People Act, and the Income Tax Act are intended to curb donations made by way of cash and other means to political parties and secure the anonymity of donors. The amendment to Section 182 of the Companies Act removes the limitation of seven and a half percent of the net profits on the amount contributed by political parties. The removal of the contribution limit was intended to disincentivise creation of shell companies. The Supreme Court of India has recognized that the legislature has a wide latitude in matters concerning economic policy. Further, the mere possibility that the law might be abused cannot be a ground for holding the provision procedurally or substantially unreasonable. The fact that one party receives substantially more support through donations than other parties cannot in itself be a legal ground to challenge the validity of the Electoral Bond Scheme., The Union of India submitted that the Supreme Court of India must exercise judicial restraint while deciding the challenge to the Electoral Bond Scheme and the statutory amendments because they relate to economic policy. For this purpose, the Union of India relied on a series of decisions where the Court has held that courts must follow judicial restraint in matters concerning economic and financial policy., It is a settled position of law that courts must adopt a less stringent form of judicial review while adjudicating challenges to legislation and executive action which relate to economic policy as compared to laws relating to civil rights such as the freedom of speech or the freedom of religion. More recently, in Swiss Ribbons v. Union of India, the Supreme Court of India while deciding a challenge to the constitutional validity of provisions of the Insolvency and Bankruptcy Code 2016 observed that the legislature must be given free play to experiment with economic policy. This position was also followed in Pioneer Urban Land and Infrastructure Limited v. Union of India, where amendments to the Insolvency and Bankruptcy Code were challenged., The question is whether the amendments under challenge relate to economic policy. While deciding on a constitutional challenge, the Court does not rely on the ipse dixit of the government that legislation is economic legislation. Courts, before classifying the policy underlying a legislation as economic policy, must undertake an analysis of the true nature of the law. The amendment to Section 31 of the Reserve Bank of India Act can be classified as a financial provision to the extent that it seeks to introduce a new form of a bearer banking instrument. However, any resemblance to an economic policy ends there. The amendments in question can be clubbed into two heads: first, provisions mandating non‑disclosure of information on electoral financing; and second, provisions permitting unlimited corporate funding to political parties. Both these amendments relate to the electoral process., In fact, it is evident from the correspondence between the Ministry of Finance and the Reserve Bank of India (which have been summarized above) on the apprehensions of the bonds being used as an alternative currency that the bonds were introduced only to curb black money in the electoral process and protect informational privacy of financial contributors to political parties. The Union of India has itself classified the amendments as an electoral reform. Thus, the submission of the Union of India that the amendments deal with economic policy cannot be accepted., The second argument that this Court needs to address is to determine the scope of judicial review to decide this batch of petitions.
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The petitioners submitted that the presumption of constitutionality does not apply since the Scheme deals with the electoral process. The premise of the argument is that the presumption of constitutionality is based on the principle that the elected body must be trusted to make decisions and that principle should not be applied when the rules changing the electoral process are themselves in challenge. It was submitted that in such cases if a prima facie case of constitutional violation is made out, the State bears a heavy burden of justifying the law. The presumption of constitutionality is based on two premises. First, it is based on democratic accountability, that is, legislators are elected representatives who are aware of the needs of the citizens and are best placed to frame policies to resolve them. Second, legislators are privy to information necessary for policy making which the courts as an adjudicating authority are not. However, the policy underlying the legislation must not violate the freedoms and rights entrenched in Part III of the Constitution and other constitutional provisions. Previous judgments of the Supreme Court of India have held that the presumption of constitutionality is rebutted when a prima facie case of violation of a fundamental right is established. The onus then shifts on the State to prove that the violation of the fundamental right is justified. In Dharam Dutt v. Union of India, a two‑Judge Bench of the Supreme Court of India elucidated the principle that despite a general presumption in favour of constitutionality, when a prima facie case of violation of a right guaranteed by clause (1) of Article 19 is made out, the onus shifts to the State to show that the legislation falls within the permissible limits of the relevant clauses of Article 19 and that the restriction is reasonable. The Constitutional Court would expect the State to place sufficient material justifying the restriction and its reasonability. If the State succeeds in bringing the restriction within the scope of any permissible restriction, such as sovereignty and integrity of India, public order, decency or morality, the onus of showing that the restriction is unreasonable shifts back to the petitioner. Where the restriction on its face appears unreasonable, nothing more is required to substantiate the plea of unreasonability. Thus the onus of proof in such cases is an ongoing shifting process to be consciously observed by the Supreme Court of India when deciding the constitutional validity of legislation by reference to Article 19 of the Constitution., The broad argument of the petitioners that the presumption of constitutionality should not apply to a specific class of statutes, namely laws dealing with electoral processes, cannot be accepted. Courts cannot carve out an exception to the evidentiary principle available to the legislature based on the democratic legitimacy it enjoys. In a challenge to electoral law, the petitioners would have to prima facie prove that the law infringes fundamental rights or constitutional provisions, upon which the onus would shift to the State to justify the infringement., The law does not bar electoral financing by the public. Both corporates and individuals are permitted to contribute to political parties. The legal regime has not prescribed a cap on the financial contributions that can be received by a political party or a candidate contesting elections. However, Section 77 of the Representation of the People Act, 1951 read with Rule 90 of the Conduct of Election Rules, 1961 prescribes a cap on the total expenditure that can be incurred by a candidate or their agent in connection with Parliamentary and Assembly elections between the date of nomination and the date of declaration of the result. The maximum limit for expenditure in a Parliamentary constituency is between rupees seventy‑five lakhs and ninety‑five lakhs depending on the size of the State and the Union Territory. The maximum limit of election expenses in an Assembly constituency varies between rupees twenty‑eight lakhs and forty lakhs depending on the size of the State. The law does not prescribe any limits for the expenditure by a political party. Section 77, read with Section 169 of the Representation of the People Act, provides the Central Government, in consultation with the Election Commission of India, the power to prescribe the amount over which the total expenditure incurred by the candidate or their agent shall not be exceeded. The total expenditure cap is prescribed in Rule 90 of the Conduct of Election Rules, 1961, which is amended from time to time. For the states of Arunachal Pradesh, Goa and Sikkim, and the Union Territories of Andaman and Nicobar Islands, Chandigarh, Dadra and Nagar Haveli and Daman and Diu, Lakshadweep, Puducherry and Ladakh, the expenditure limit is capped at seventy‑five lakhs; for the remaining States and Union Territories, it is capped at ninety‑five lakhs. For State Assembly elections, the expenditure is capped at twenty‑eight lakhs for the states of Arunachal Pradesh, Goa, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim and Tripura, and for the Union Territory of Puducherry; it is capped at forty lakhs for Delhi and Jammu and Kashmir. Section 77 stipulates that expenditure incurred by leaders of a political party on travel for propagating the programme of the political party shall not be deemed election expenditure. Thus there is an underlying dichotomy in the legal regime: the law does not regulate contributions to candidates but only regulates contributions to political parties, while expenditure by candidates, not the political party, is regulated. The underlying understanding is that finance is crucial for the sustenance and progression of electoral politics., It is believed that money does not vote but people do. Studies have revealed the direct and indirect influence of money on electoral politics. The primary way through which money directly influences politics is its impact on electoral outcomes. One way in which money influences electoral outcomes is through vote buying. Another way is through incurring electoral expenditure for political campaigns. Campaigns have a measurable influence on voting behaviour because of television advertisements, campaign events and personal canvassing. An informed voter is assumed to be aware of the policy positions of the candidate or the party they represent and votes on a thorough analysis of the pros and cons of electing a candidate. An uninformed voter is assumed not to possess knowledge of the policy positions of the candidates. Campaigns affect both informed and uninformed voters. For an informed voter, campaign activities are supplementary because they enable the voter to become further informed about policies and ideology of the party and candidate, reducing uncertainty. For an uninformed voter, campaigns play a more persuasive role by providing greater insight into candidates., Political parties use innovative techniques of campaigning beyond traditional advertisements, door‑to‑door canvassing and processions to increase outreach. For example, parties sponsor religious festivals and community fairs, organize sporting matches and literary competitions where cash awards are given. These outreach techniques leave a lasting impression on uninformed voters. Enhanced campaign expenditure proportionately increases campaign outreach, influencing voting behaviour. Money also creates entry‑barriers to politics by limiting the kind of candidates and parties that can enter the electoral fray. Studies have shown that money influences the selection of candidates because parties prefer candidates who can substantially self‑finance their campaigns without relying on party finance. Consequently, candidates from socio‑economically weaker sections face added barriers. Money also excludes new parties, especially those representing marginalized communities. Parties lacking sufficient finance often form electoral coalitions with established parties, which shoulder a lion’s share of campaign expenditure, including coalition propaganda, advertising, vehicle hire, rallies, food, transportation and daily expenses for party cadres. Such compromises dilute the ideology of the newly formed party. In this manner, money creates an exclusionary impact by reducing democratic space for participation for both candidates and newer and smaller parties., The judgments of the Supreme Court of India have recognized the influence of money on politics and have taken a critical view of the role played by big business and big money in the electoral process. In Kanwar Lal Gupta v. Amar Nath Chawla, the Court noted that money serves as an asset for advertising and other forms of political solicitation, increasing a candidate’s exposure to the public. The Court observed that the availability of large funds gives a candidate or party a significantly greater opportunity for propagation of its programme compared to rivals, resulting in discrimination based on money power and denying some voters an equal voice and some candidates an equal chance. In Vatal Nagaraj v. R. Dayanand Sagar, Justice V. R. Krishna Iyer noted that candidates often evade the legal ceiling on expenditure by using big money channeled by political parties, acknowledging that large monetary inputs are a necessary evil of modern elections. In P. Nalla Thampy Terah v. Union of India, a Constitution Bench of the Supreme Court of India upheld the constitutional validity of Explanation 1 to Section 77 of the Representation of the People Act, which allowed unlimited channelling of funds by political parties for the election of their candidates, while noting that petitioners were justified in criticizing the statute for diluting the principle of free and fair elections. In Common Cause (A Registered Society) v. Union of India, the Court dwelt on the ostentatious use of money by political parties, describing the General Elections as an enormous exercise involving expenditure of more than one thousand crore rupees, with no accountability for the source of the money, and held that such naked display of black money cannot be permitted in a democracy where the rule of law prevails., The challenge to the statutory amendments and the Electoral Bond Scheme cannot be adjudicated in isolation without reference to the actual impact of money on electoral politics. The Supreme Court of India has held in numerous judgments that the effect, not the object, of a law on fundamental rights and other constitutional provisions must be determined while adjudicating its constitutional validity. The effect of provisions dealing with electoral finance cannot be determined without recognizing the influence of money on politics. Therefore, the nexus between money and electoral democracy must be borne in mind while deciding the issues before the Court in this batch of petitions., Section 29C of the Representation of the People Act, as amended by the Finance Act, 2017 stipulates that a political party need not disclose financial contributions received through electoral bonds. Similarly, Section 13A of the Information Technology Act, as amended, does not require a political party to maintain a record of contributions received through electoral bonds. Section 182 of the Companies Act, 2013, as amended by the Finance Act, 2017, deleted the earlier requirement of disclosure of particulars of the amount contributed by companies to political parties in their profit and loss accounts. A company that makes financial contributions is now required only to disclose the total amount contributed to political parties without specifying the particular party. Maintaining the anonymity of the contributor is a crucial characteristic of the Electoral Bond Scheme. An electoral bond is defined as a bearer banking instrument which does not carry the name of the buyer. The law mandates the authorized bank not to disclose the information furnished by the buyer except when demanded by a competent court or upon registration of a criminal case by law‑enforcement agencies., The amendments introduced by the Finance Act, 2017 and the Electoral Bond Scheme are challenged on the ground that the non‑disclosure of information about electoral contributions violates the right to information of the voter, which is traceable to Article 19(1)(a) of the Constitution. Article 19(1)(a) has been held to guarantee the right to information to citizens. The jurisprudence of the Supreme Court of India on the right to information can be divided into two phases. In the first phase, the Court traced the right to information to the values of good governance, transparency and accountability, recognizing that citizens must possess information about State action to hold the State accountable. The Court observed that evidence relevant and material to proceedings need not be disclosed if disclosure would violate public interest, as provided in Section 124 of the Indian Evidence Act, 1872. The Court framed the issue of disclosure of documents related to the affairs of the State as a conflict between public interest and private interest, and later as a conflict between two conceptions of public interest, balancing the need for disclosure to aid the parties and the public interest in the administration of justice., In State of Uttar Pradesh v. Raj Narain, the Supreme Court of India held that there is a public interest in the impartial administration of justice which can only be secured by disclosure of relevant and material documents, tracing the right to information to Article 19(1)(a). In SP Gupta v. Union of India, the Court observed that the Constitution guarantees the right to know, which is necessary to secure true facts about the administration of the country, and that democratic governance is a continuous process whereby citizens not only choose representatives but also hold the government accountable, requiring access to information. The first phase of jurisprudence focused on the relationship between the right to information and open governance, premised on the duty of citizens to hold the government accountable., In the second phase, the Supreme Court of India recognised that information is important for forming views on social, cultural and political issues and for participation in democratic discourse. The Court held that freedom of speech and expression includes the right to acquire information that enables people to debate on issues, curbing misinformation and monopolies on information. Thus, the right to information is an end in itself, facilitating self‑development and effective participation in democracy, not merely a means to hold the government accountable., In Union of India v. Association for Democratic Reforms (ADR), the Court traced the right of voters to have information about the antecedents, including the criminal past, of candidates contesting elections to Article 19(1)(a). The Delhi High Court, hearing a petition under Article 226, directed the Election Commission of India to secure information on (a) details of criminal cases against a candidate, (b) assets of the candidate, spouse and dependents, (c) facts bearing on the candidate’s competence, capacity and suitability, and (d) any other information the Commission considers necessary for judging the candidate’s capacity. The Supreme Court of India upheld the direction, holding that voters have a right to be sufficiently informed to exercise their democratic will intelligently, and that disclosure of a candidate’s criminal background and assets aids voters in making an informed choice. The Court directed the Election Commission of India to require candidates, at the time of filing nomination, to disclose whether they have been convicted, the nature of any pending charges, assets and liabilities, and educational qualifications. The Court also observed that the Election Commission can ask candidates to disclose information about expenditure incurred by political parties to maintain the purity of elections., Pursuant to the ADR decision, Parliament amended the Representation of the People Act to incorporate some of the directions issued by the Court. Section 33‑B of the Act stipulated that a candidate need not disclose any other information beyond that required by law, notwithstanding any judgment. In PUCL v. Union of India, proceedings were initiated before the Supreme Court of India under Article 32 challenging Section 33‑B of the Representation of the People Act.
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Justice M B Shah, writing for the majority, noted that the decision of the three‑Judge Bench in Association for Democratic Reforms (supra) tracing the right to know the antecedents of candidates contesting elections had attained finality and Section 33‑B was unconstitutional because it had the effect of rendering the judgment of the Supreme Court of India inoperative. The learned judge, on an independent interpretation, also held that the right to information of a voter is a facet of Article 19(1)(a)., Paragraph 64(4): To maintain the purity of elections and in particular to bring transparency in the process of election, the Election Commission of India can ask the candidates about the expenditure incurred by the political parties and this transparency in the process of election would include transparency of a candidate who seeks election or re‑election. In a democracy, the electoral process has a strategic role. The little man of this country would have a basic elementary right to know full particulars of a candidate who is to represent him in Parliament where laws to bind his liberty and property may be enacted., Section 33‑A of the Representation of the People Act required the candidate to furnish the following information: (a) He is accused of any offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the court of competent jurisdiction; and (b) He has been convicted of an offence other than any offence referred to in sub‑section (1) or sub‑section (2), or covered in sub‑section (3), of Section 8 and sentenced to imprisonment for one year or more., Justice Venkatarama Reddi observed in his concurring opinion that there are two postulates which govern the right to vote: first, the formulation of an opinion about candidates, and second, the expression of choice based on the opinion formulated by casting votes in favour of a preferred candidate. A voter must possess relevant and essential information that would enable them to evaluate a candidate and form an opinion for the purpose of casting votes. The learned judge observed that the Constitution recognises the right of a voter to know the antecedents of a candidate though the right to vote is a statutory right because the action of voting is a form of expression protected by Article 19(1)(a). Though the initial right cannot be placed on the pedestal of a fundamental right, at the stage when the voter goes to the polling booth and casts his vote, his freedom to express arises. The casting of a vote in favour of one or the other candidate amounts to expression of his opinion and preference and that final stage in the exercise of voting right marks the accomplishment of freedom of expression of the voter. That is where Article 19(1)(a) is attracted., In the context of the decision of the Supreme Court of India in Association for Democratic Reforms (supra), the learned judge observed that the Court issued specific directions for the disclosure of certain information about candidates because of a legislative vacuum, and that the directions issued to the Election Commission of India will fill the vacuum until Parliament legislates on the subject. Thus, the five directions which were issued by the Supreme Court of India in Association for Democratic Reforms (supra) were not construed to be inflexible and immutable theorems. The learned judge observed that though voters have a fundamental right to know the antecedents of candidates, all the conceptions of this right formulated by the Supreme Court of India in Association for Democratic Reforms (supra) cannot be elevated to the realm of fundamental rights., The majority was of the view that voters have a fundamental right to all the information which was directed to be declared by the Supreme Court of India in Association for Democratic Reforms (supra). Justice Venkatarama Reddi disagreed. In the opinion of the learned judge, only certain information directed to be disclosed in Association for Democratic Reforms (supra) is crucial and essential to the right to information of the voter. In my view, the points of disclosure spelt out by the Supreme Court of India in Association for Democratic Reforms case should serve as broad indicators or parameters in enacting the legislation for the purpose of securing the right to information about the candidate. The paradigms set by the Court, though pro tempore in nature as clarified supra, are entitled to due weight. If the legislature, in utter disregard of the indicators enunciated by the Court, proceeds to make legislation providing only a semblance or pittance of information or omits disclosure on certain essential points, the law would then fail to pass the muster of Article 19(1)(a). Though a certain amount of deviation from the aspects of disclosure spelt out by the Court is not impermissible, a substantial departure cannot be countenanced. The legislative provision should be such as to promote the right to information to a reasonable extent, if not to the fullest extent, on details of concern to the voters and citizens at large. While enacting the legislation, the legislature has to ensure that the fundamental right to know about the candidate is reasonably secured and information which is crucial, by any objective standards, is not denied. The Court has to take a holistic view and adopt a balanced approach, keeping in view the twin principles that the citizens' right to information to know about the personal details of a candidate is not an unlimited right and that, at any rate, it has no fixed concept and the legislature has freedom to choose between two reasonable alternatives. But, I reiterate that the shape of the legislation need not be solely controlled by the directives issued to the Election Commission of India to meet an ad hoc situation. As I said earlier, the right to information cannot be placed in a straitjacket formulae and the perceptions regarding the extent and amplitude of this right are bound to vary., Justice Reddi held that Section 33‑B was unconstitutional because Parliament cannot impose a blanket ban on the disclosure of information other than the disclosure of information required by the provisions of the Representation of the People Act. The scope of the fundamental right to information may be expanded in the future to respond to future exigencies and necessities. The provision had the effect of emasculating the freedom of speech and expression of which the right to information is a facet; and the provision failed to give effect to an essential aspect of the fundamental right, namely the disclosure of assets and liabilities of the candidates., Justice Reddi then proceeded to juxtapose the directions for disclosure issued by the Supreme Court of India in Association for Democratic Reforms (supra) with the scope of the provisions of the Representation of the People Act mandating disclosure. The learned judge observed that the extent of disclosure mandated in the Representation of the People Act is fairly adequate with respect to past criminal records but not with regard to pending cases. With respect to assets and liabilities, the learned judge observed that the disclosure of assets and liabilities is essential to the right to information of the voter because it would enable voters to form an opinion about whether the candidate, upon being elected in the past, had amassed wealth in their name or their family. Additionally, information about dues which are payable by the candidate to public institutions would enable voters to know the candidate's dealing with public money in the past., Justice Reddi observed that the requirement to disclose assets of the candidate's family was justified because of the prevalence of benami transactions. Though mandating the disclosure of assets and liabilities would infringe the right to privacy of the candidate and their family, the learned judge observed that disclosure which is in furtherance of the right to information would trump the former because it serves the larger public interest. Justice Reddi then observed that disclosure of the educational qualifications of a candidate is not an essential component of the right to information because educational qualifications do not serve any purpose for the voter to decide which candidate to cast a vote for, since the characteristics of duty and concern of the people is not monopolised by the educated. A conclusion to the contrary, in the learned judge's opinion, would overlook the stark realities of the society., The following principles can be deduced from the decisions of the Supreme Court of India in Association for Democratic Reforms (supra) and People's Union for Civil Liberties (supra): (a) The right to information of voters, which is traced to Article 19(1)(a), is built upon the jurisprudence of both the first and the second phases in the evolution of the doctrine. The common thread of reasoning which runs through both phases is that information which furthers democratic participation must be provided to citizens. Voters have a right to information which would enable them to cast their votes rationally and intelligently because voting is one of the foremost forms of democratic participation; (b) In Association for Democratic Reforms (supra), the Supreme Court of India observed that while the disclosure of information may violate the right to privacy of candidates and their families, such information must be disclosed because it furthers public interest. The opinion of Justice Venkatarama Reddi in People's Union for Civil Liberties (supra) also followed the same line of reasoning. Justice M B Shah, writing for himself and Justice D M Dharmadhikari, held that the right to privacy would not be infringed because information about whether a candidate is involved in a criminal case is a matter of public record. Similarly, the assets or income are normally required to be disclosed under the provisions of the Income Tax Act; (c) The voters have a right to the disclosure of information which is essential for choosing the candidate for whom a vote should be cast. In Association for Democratic Reforms (supra), the Supreme Court of India notes that such information would enable voters to determine if the candidate is corrupt and would further openness in democracy., While relying on the judgments of the Supreme Court of India in Association for Democratic Reforms (supra) and People's Union for Civil Liberties (supra), the petitioners argue that non‑disclosure of information on the funding of political parties is violative of the right to information under Article 19(1)(a). This Court needs to consider the following two issues to answer the question: (a) Whether the requirements of disclosure of information about candidates can be extended to political parties; and (b) If the answer to (a) is affirmative, whether information on the funding of political parties is essential for exercising choice on voting. The focal point of the electoral process: candidate or political party., The decisions in Association for Democratic Reforms (supra) and People's Union for Civil Liberties (supra) recognise the right to information of a voter about candidates, which enables them to cast their vote in an effective manner. The relief which was granted by the Supreme Court of India in People's Union for Civil Liberties (supra) and Association for Democratic Reforms (supra) was restricted to the disclosure of information about candidates contesting the election because of the limited nature of the reliefs sought. The ratio decidendi of the two judgments of the Supreme Court of India is that voters have a right to receive information which is essential for them to cast their votes. This Court has to first analyse if the political party is a relevant political unit in the electoral process to answer the question whether funding details of political parties are essential information for the voter to possess., The Constitution of India did not make a reference to political parties when it was adopted. A reference was made when the Tenth Schedule was included in the Constitution by the Constitution (Fifty‑Second) Amendment Act, 1985. However, even though the Constitution on its adoption did not make a reference to political parties, statutory provisions relating to elections accorded considerable importance to political parties, signifying that political parties have been the focal point of elections., The Election Commission of India notified the Election Symbols (Reservation and Allotment) Order, 1968, in exercise of the powers conferred by Article 344 of the Constitution read with Section 29A of the Representation of the People Act and Rules 59 and 109 of the Conduct of Election Rules, 1961. In terms of the provisions of the Symbols Order, the Election Commission of India shall allot a symbol to every candidate contesting the election. The Symbols Order classifies political parties into recognised political parties and unrecognised political parties. The difference in the procedure under the Symbols Order for allotting symbols to recognised political parties, registered but unrecognised political parties and independent candidates indicates both the relevance and significance of political parties in elections in India., A party is classified as a National or a State recognised party based on the total percentage of votes secured at the last general elections and/or the number of candidates who have been returned to the Legislative Assembly. Symbols are reserved for allocation to recognised political parties. All candidates who are being set up by a national or a State recognised party are to be allotted the symbol reserved for that party for the purpose of contesting elections., Symbols other than those reserved for recognised political parties shall be available for allotment to independent candidates and candidates set up by political parties which are not recognised political parties in terms of the Symbols Order. Candidates set up by a registered but unrecognised political party may also be allotted a common symbol if they fulfil certain conditions laid down in the Symbols Order., Thus, the Symbols Order creates a demarcation between candidates set up by political parties and candidates contesting individually. Political parties are allotted a symbol such that all candidates who are set up by that political party are allotted the symbol of their political party while contesting elections. Even within candidates who are set up by political parties, the Symbols Order creates a distinction between unrecognised but registered political parties and recognised political parties. Recognised political parties shall continue to be allotted the same symbol for all General elections until the time these political parties fulfil the conditions for recognition under the Symbols Order., For unrecognised but registered political parties, though a common symbol is allotted for all candidates being set up by the political parties, the symbol is not reserved for the party. The Election Commission of India could allot different symbols to that political party in each General election. The candidates of a registered but unrecognised political party may be represented by a common symbol but the people would not attach a specific symbol to the political party because the symbol by which it is represented may change with every election., The purpose of allotting symbols to political parties is to aid voters in identifying and remembering the political party. The law recognises the inextricable link between a political party and the candidate though the vote is cast for a candidate. The literacy rate in India was 18.33 percent when the first General Election was held in 1951. Most of the voters identified a political party only with its symbol and this still continues to the day. In a few cases, the voters would not possess any knowledge of the candidate being set up by the political party. They would vote solely based on the symbol which is allotted to the political party; knowledge of which they have obtained through campaigning activities or its sustained presence in the electoral fray., Symbols also gain significance when the names of political parties sound similar. For example, political parties by the names of Dravida Munnetra Kazhagam, All India Anna Dravida Munnetra Kazhagam, Dravida Kazhagam, Desiya Murpokku Dravida Kazhagam, Makkal Desiya Murpokku Dravida Kazhagam, Kongu Desa Makkal Katchi, Kongunadu Makkal Desia Katchi, and Kongunadu Makkal Katchi contest elections in Tamil Nadu. The names of all the political parties bear similarities due to the usage of the same words with certain additions or deletions. The allocation of symbols to political parties would help voters identify and distinguish between political parties which have similar sounding names. It is precisely because of the close association of the symbol with the political party by voters that both factions of the party vie for the symbol that is allotted to the party when there is a split in a recognised political party., India follows the open‑list first past the post form of election in which votes are cast for a candidate and the candidate who secures the highest number of votes is chosen to represent the people of that constituency. It could be argued that this system of elections gives prominence to candidates and not political parties unlike the system of closed list elections where the voters do not have any knowledge of the candidates that are set up by the political party., However, it cannot be concluded that the decision of voting is solely based on the individual candidate's capabilities and not the political party merely because the voter has knowledge of the candidate who has been set up by the political party. Such a conclusion cannot be definitively drawn particularly in view of the design of the electronic voting machine which has a list of the names of the candidates who are contesting the election from the constituency along with the symbol of the political party which is fielding the candidate. Voters cast their votes based on two considerations: the capability of the candidate as a representative and the ideology of the political party., Political parties publish electoral manifestos containing the ideology of the party, major policies of the political party, plans, programmes and other considerations of governance which would be implemented if they came to power. While political manifestos do not necessarily always translate to policies when the party is elected to power, they throw light upon the integral nature of political parties in the electoral system. By publishing an election manifesto, a political party communicates to the voters that they must accord preference to the political party. Party manifestos prod voters to look away from a candidate‑centric and towards a party‑centric perception of elections., Lastly, the prominence of political parties as electoral units is further heightened by the form of government in India. India follows a Westminster system of government which confers prominence to political parties without strictly separating between the legislature and the executive. The time‑honoured convention of the cabinet form of government is that the leader of the political party with absolute majority must be called to form the government. The Council of Ministers is appointed by the President on the aid and advice of the Prime Minister. Political parties are intrinsic to this form of government because of the very process of government formation. The discretion by the Governor when no single political party commands an absolute majority, which has been given judicial recognition in Rameshwar Prasad v. Union of India, also prioritises political parties making them central to the governance structure., The centrality of political parties in the electoral system is further accentuated by the inclusion of the Tenth Schedule. The Tenth Schedule deals with disqualification on the ground of defection from the political party which set up the elected individual as its candidate. Paragraph 2 provides the following grounds of defection: (a) voluntarily giving up membership of the political party; and (b) voting or abstaining from voting in the House contrary to direction issued by the political party without obtaining prior permission from the political party and when such voting has not been condoned by the political party., The underlying principle of the anti‑defection law, which has been recognised by a seven‑Judge Bench of the Supreme Court of India in Kihoto Hollohon v. Zachillhu, is that a candidate set up by a political party is elected on the basis of the programme of that political party. In the course of years, while deciding disputes related to the Tenth Schedule, judgments of the Supreme Court of India have further strengthened the centrality of political parties in the electoral system. In Ravi S Naik v. Union of India, the Court observed that voluntarily giving up membership of a political party has a wider connotation and includes not just resignation of the member from the party and an inference can also be drawn from the conduct of the member. In Subash Desai v. Principal Secretary, Governor of Maharashtra, a Constitution Bench of the Supreme Court of India while interpreting the provisions of the Tenth Schedule held that the political party and not the legislature party (which consists of the members of the House belonging to a particular political party) appoints the whip of a political party for the purposes of Paragraph 2(1)(b) of the Tenth Schedule., In sum, a political party is a relevant political unit in the democratic electoral process in India for the following three reasons: (a) Voters associate voting with political parties because of the centrality of symbols in the electoral process; (b) The form of government where the executive is chosen from the legislature based on the political party or coalition of political parties which has secured the majority; and (c) The prominence accorded to political parties by the Tenth Schedule of the Constitution., In Association for Democratic Reforms (supra) and People's Union for Civil Liberties (supra), the Supreme Court of India held that a voter has a right to information which is essential for them to exercise their freedom to vote. In the previous section, we have concluded that political parties are a relevant political unit. Thus, the observations of the Supreme Court of India in People's Union for Civil Liberties (supra) and Association for Democratic Reforms (supra) on the right to information about a candidate contesting elections is also applicable to political parties. The issue whether information about the funding received by political parties is essential for an informed voter must be answered in the context of the core tenets of electoral democracy. The Preamble to the Constitution resolves to constitute a social, economic, and politically just society where there is equality of status and opportunity. The discourse which has emanated within and outside the Courts is often restricted to the ideals of social and economic justice and rarely includes political inequality., Electoral democracy in India is premised on the principle of political equality which the Constitution guarantees in two ways. First, by guaranteeing the principle of one person one vote which assures equal representation in voting. The Constitution prescribes two conditions with respect to elections to seats in Parliament which guarantee the principle of one person one vote with respect to every voter and amongst every State: (a) each State shall be divided into territorial constituencies in such a manner that the ratio between the population of each constituency and the number of seats allotted to it shall be the same throughout the State; and (b) ...
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The total number of seats allotted to each State in Parliament should be such that the ratio between the number of seats, and the population of the State is the same for all States. Second, the Constitution ensures that socio‑economic inequality does not perpetuate political inequality by mandating reservation of seats for Scheduled Castes and Scheduled Tribes in Parliament and State Assemblies. The Constitution guarantees political equality by focusing on the elector and the elected. These two constitutional precepts foster political equality in the following two ways. First, the Constitution mandates that the value of each vote is equal. This guarantee ensures formal political equality where every person's vote is accorded equal weightage. Second, the Constitution ensures that members of socially marginalized groups are not excluded from the political process. This guarantee ensures (a) equality in representation; and (b) equality in influence over political decisions. However, political inequality continues to persist in spite of the constitutional guarantees. One of the factors which contributes to the inequality is the difference in the ability of persons to influence political decisions because of economic inequality., We have already in the preceding section elucidated the close association of money and politics where we explained the influence of money over electoral outcomes. However, the influence of money over electoral politics is not limited to its impact over electoral outcomes. It also spills over to governmental decisions. It must be recalled here that the legal regime in India does not distinguish between campaign funding and electoral funding. The money which is donated to political parties is not used by the political party only for the purposes of electoral campaign. Party donations are also used, for instance, to build offices for the political party and pay party workers. Similarly, the window for contributions is not open for a limited period only prior to the elections. Money can be contributed to political parties throughout the year and the contributed money can be spent by the political party for reasons other than just election campaigning. It is in light of the nexus between economic inequality and political inequality, and the legal regime in India regulating party financing, that the essentiality of the information on political financing for an informed voter must be analyzed., Economic inequality leads to differing levels of political engagement because of the deep association between money and politics. At a primary level, political contributions give a seat at the table to the contributor. That is, it enhances access to legislators. This access also translates into influence over policy‑making. An economically affluent person has a higher ability to make financial contributions to political parties, and there is a legitimate possibility that financial contribution to a political party would lead to quid pro quo arrangements because of the close nexus between money and politics. Quid pro quo arrangements could be in the form of introducing a policy change, or granting a licence to the contributor. The money that is contributed could not only influence electoral outcomes but also policies particularly because contributions are not merely limited to the campaign or pre‑campaign period. Financial contributions could be made even after a political party or coalition of parties form Government. The possibility of a quid pro quo arrangement in such situations is even higher. Information about political funding would enable a voter to assess if there is a correlation between policy making and financial contributions., For the information on donor contributions to be relevant and essential, it is not necessary that voters have to take the initiative to peruse the list of contributors to find relevant information which would enable them to cast their vote effectively. Electronic and print media would present the information on contributions received by political parties, and the probable link between the contribution and the licences which were given to the company in an accessible format. The responses to such information by the Government and political parties would go a long way in informing the voter., However, to establish the argument of quid pro quo arrangements between the contributor and the political party, it is necessary that the political party has knowledge of the particulars of funding to its party. The political party to whom contributions are made cannot enter into quid pro quo arrangements if it is unaware of the donor. The Scheme defines an electoral bond as a bond issued in the nature of a promissory note which shall be a bearer banking instrument and shall not carry the name of the buyer or payee. The Scheme also stipulates that the information furnished by the buyer shall be treated as confidential and shall not be disclosed by any authority except when demanded by a competent Supreme Court of India or by a law enforcement agency upon the registration of a criminal case., The submission of the Union of India is that the political party which receives the contribution does not know the identity of the contributor because neither the bond would have their name nor could the bank disclose such details to the political party. We do not agree with this submission. While it is true that the law prescribes anonymity as a central characteristic of electoral bonds, the de jure anonymity of the contributors does not translate to de facto anonymity. The Scheme is not fool‑proof. There are sufficient gaps in the Scheme which enable political parties to know the particulars of the contributions made to them. Clause 12 of the Scheme states that the bond can be encashed only by the political party by depositing it in the designated bank account. The contributor could physically hand over the electoral bond to an office bearer of the political party or to the legislator belonging to the political party, or it could have been sent to the office of the political party with the name of the contributor, or the contributor could after depositing the electoral bond disclose the particulars of the contribution to a member of the political party for them to cross‑verify. Further, according to the data on contributions made through electoral bonds, ninety‑four percent of the contributions through electoral bonds have been made in the denomination of one crore. Electoral bonds provide economically resourced contributors who already have a seat at the table selective anonymity vis‑vis the public and not the political party., In view of the above discussion, we are of the opinion that the information about funding to a political party is essential for a voter to exercise their freedom to vote in an effective manner. The Electoral Bond Scheme and the impugned provisions, to the extent that they infringe upon the right to information of the voter by anonymizing contributions through electoral bonds, are violative of Article 19(1)(a) of the Constitution of India., The next issue which falls for analysis is whether the violation of the right to information is justified. The Supreme Court of India has laid down the proportionality standard to determine if the violation of the fundamental right is justified. The proportionality standard is as follows: (a) the measure restricting a right must have a legitimate goal; (b) the measure must be a suitable means for furthering the goal; (c) the measure must be least restrictive and equally effective; and (d) the measure must not have a disproportionate impact on the right holder., The legitimate goal stage requires the Supreme Court of India to analyze if the objective of introducing the law is a legitimate purpose for the infringement of rights. At this stage, the State is required to discharge two burdens. First, the State must demonstrate that the objective is legitimate. Second, the State must establish that the law is indeed in furtherance of the legitimate aim that is contended to be served., The then Finance Minister, Mr Arun Jaitley encapsulated the objective of introducing the Electoral Bond Scheme as follows: (a) an attempt was made in the past to incentivize donations to political parties through banking channels. Both the donor and the donee were granted exemption from payment of tax if accounts of contributions were maintained and returns were filed. However, the situation had only marginally improved. Political parties continued to receive funds through anonymous sources; and (b) donors have been reluctant to donate through the banking channel because the disclosure of donor identity would entail adverse consequences., In other words, Mr Jaitley stated that the main purpose of the Scheme is to curb black money in electoral financing and this purpose could be achieved only if information about political donations is kept confidential. That is, donor privacy is a means to incentivize contributions through the banking channel. However, Mr Tushar Mehta argued that protecting donor privacy is an end in itself. We will now proceed to determine if the infringement of the right to information of the voters is justified vis‑vis the purposes of (a) curbing black money; and (b) protecting donor privacy., The petitioners argue that the infringement of the right to information, which is traceable to Article 19(1)(a), can only be justified if the purpose of the restriction is traceable to the grounds stipulated in Article 19(2). They argue that the purpose of curbing black money cannot be traced to any of the grounds in Article 19(2), and thus, is not a legitimate purpose for restricting the right to information., Article 19(2) stipulates that the right to freedom of speech and expression can only be restricted on the grounds of: (a) the sovereignty and integrity of India; (b) the security of the State; (c) friendly relations with foreign states; (d) public order; (e) decency or morality; (f) contempt of court; (g) defamation; and (h) incitement to an offence. The purpose of curbing black money is traceable to public interest. However, public interest is not one of the grounds stipulated in Article 19(2). Of the rights recognized under Article 19, only Article 19(6) which guarantees the freedom to practice any profession or to carry on any occupation, trade or business can be restricted on the ground of public interest., In Sakal Papers v. Union of India, the constitutional validity of the Newspaper (Price and Page) Act 1965 and the Daily Newspaper (Price and Page) Order 1960 was challenged on the ground that it violated the freedom of press under Article 19(1)(a). The Union of India submitted that the restriction was justified because the purpose of the law was to prevent unfair competition which was in furtherance of public interest. The Supreme Court of India observed that the impugned legislation directly and immediately curtails the freedom of speech guaranteed under Article 19(1)(a), and the freedom cannot be restricted on any ground other than the grounds stipulated in Article 19(2)., In Express Newspapers v. Union of India, a Constitution Bench while deciding the constitutional challenge to the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act 1955 held that a law violating Article 19(1)(a) would be unconstitutional unless the purpose of the law falls squarely within the provisions of Article 19(2). In Kaushal Kishor v. State of Uttar Pradesh, the Supreme Court of India answered affirmatively that the grounds stipulated in Article 19(2) are exhaustive of the restrictions which can be placed on the right to free speech under Article 19(1)(a)., However, in the specific context of the right to information, the Supreme Court of India has observed that the right can be restricted on grounds not traceable to Article 19(2). In People's Union for Civil Liberties (PUCL) v. Union of India, one of the submissions was that dangerous consequences would follow if the right to information were culled out from Article 19(1)(a) because the grounds on which the right can be restricted as prescribed in Article 19(2) are very limited. Justice Reddi, in his concurring opinion, observed that the right under Article 19(1)(a) can be restricted on grounds which are not strictly within the confines of Article 19(2)., In Cricket Association of Bengal v. Union of India, the petitioner argued that the right to broadcast can be restricted on grounds other than those stipulated in Article 19(2). Justice P B Sawant, writing for himself and Justice S Mohan, observed that Article 19(1)(a) can only be restricted on the grounds mentioned in Article 19(2). The learned Judge specifically refuted the argument that the right can be restricted on grounds other than those stipulated in Article 19(2)., Justice Jeevan Reddy, in a concurring opinion, segregated the grounds stipulated in Article 19(2) into grounds in furtherance of national interest and societal interest. He observed that the grounds of sovereignty and integrity of India, the security of the State, friendly relations with foreign states and public order are referable to national interest, while the grounds of decency, morality, contempt of court, defamation and incitement of offence are referable to state interest. He also referred to the United States Supreme Court decision in FCC v. National Citizens Committee for Broadcasting, where it was held that a station licence can be denied on the ground of public interest., From the above discussion, it is clear that the right to information under Article 19(1)(a) can only be restricted based on the grounds stipulated in Article 19(2). It could be argued that curbing black money can be traced to the ground of public order. However, a Constitution Bench of the Supreme Court of India has interpreted the ground public order to mean public safety and tranquility and disorder involving breaches of local significance, in contradistinction to national upheavals such as civil strife or war affecting the security of the State. Thus, the purpose of curbing black money is not traceable to any of the grounds in Article 19(2)., We proceed to apply the subsequent prongs of the proportionality standard, even assuming that curbing black money is a legitimate purpose for restricting the right to information. The second prong requires the State to assess whether the means used are rationally connected to the purpose. At this stage, the Court is required to assess whether the means, if realised, would increase the likelihood of curbing black money. It is not necessary that the means chosen should be the only means capable of realising the purpose. It is sufficient if the means used constitute one of the many methods by which the purpose can be realised, even if it only partially gives effect to the purpose., The respondents submit that before the introduction of the Electoral Bond Scheme, a major portion of the total contributions received by political parties was from unknown sources. For example, in the financial year 2016‑17, which was the year the Electoral Bond Scheme was introduced, eighty‑one percent of the contributions (Rupees 580.52 crore) were received by political parties through voluntary contributions. Since the amount of voluntary contributions is not regulated, it allowed the circulation of black money. However, after the introduction of the Electoral Bond Scheme, forty‑seven percent of the contributions were received through electoral bonds which are regulated money. The Union of India submitted that providing anonymity to the contributors incentivizes them to contribute through the banking channel. Assuming, for the purpose of hypothesis, that the Union of India is right on this prong, the non‑disclosure of information about political expenditure has a rational nexus with the goal of curbing black money or unregulated money., The next stage of the proportionality standard is the least restrictive means stage. At this stage, the Supreme Court of India is required to determine if the means adopted (that is, anonymity of the contributor) is the least restrictive means to give effect to the purpose based on the following standard: (a) whether there are other possible means which could have been adopted by the State; (b) whether the alternative means identified realise the objective in a real and substantial manner; (c) whether the alternative identified and the means used by the State impact fundamental rights differently; and (d) whether on an overall comparison the alternative is better suited considering the degree of realising the government objective and the impact on fundamental rights., After the amendments introduced by the Finance Act 2017, donations to political parties exceeding rupees two thousand can only be made by an account‑payee cheque drawn on a bank, an account‑payee bank draft, the use of electronic clearing system through a bank account or through an electoral bond. All contributions to political parties through cash cannot be assumed to be black money. For example, individuals who contribute small donations during party rallies usually contribute through cash. On the other hand, contributions through the banking channel are certainly a form of accounted transaction. Restricting the contributions to political parties in cash to less than rupees two thousand and prescribing that contributions above the threshold amount must only be made through banking channels is itself intended to curb black money. Thus, the legal regime itself provides other alternatives to curb black money: contributions through cheques, bank drafts, or electronic clearing system. The Union of India submits that though there are other alternatives, most contributors resort to cash donations as they fear consequences from political opponents., In addition to the alternatives identified above, the existing legal regime provides another alternative in the form of Electoral Trusts through which the objective of curbing black money in electoral financing can be achieved. Section 2(22AA) of the Information Technology Act defines an Electoral Trust as a trust approved by the Board in accordance with the scheme made in this regard by the Central Government. Section 13B of the Information Technology Act states that any voluntary contributions received by an electoral trust shall not be included in the total income of the previous year of such electoral trust if it distributes ninety‑five percent of the aggregate donations received during the previous year. In terms of Rule 17CA of the Information Technology Rules 1962, the features of an electoral trust are as follows: (a) an Electoral Trust may receive voluntary contribution from (i) an individual who is a citizen of India; (ii) a company registered in India; (iii) a firm or Hindu undivided family or an association of persons or a body of individuals residing in India; (b) when a contribution is made to an electoral trust, a receipt shall record the name and address of the contributor, permanent account number or passport number, amount contributed, mode of contribution including the name and branch of the bank and date of receipt, and PAN of the electoral trust; (c) contributions to the electoral trust can only be made through cheque, bank draft and electronic transfer; cash shall not be accepted; (d) the Electoral Trust shall spend five percent of the total contributions received in a year subject to a limit of rupees five hundred thousand in the first year of incorporation and rupees three hundred thousand in the second year; the remaining ninety‑five percent shall be distributed to political parties registered under Section 29A of the Representation of the People Act; (e) the political party to which the trust donated money shall provide a receipt indicating the name of the political party, the PAN and the amount of contribution received from the trust; (f) the trust shall maintain a list of persons from whom contributions have been received and to whom they have been distributed; (g) the trust shall furnish a certified copy of the list of contributors and list of political parties to which contributions have been made to the Commissioner of Income Tax along with the audit report., In summary, an Electoral Trust is formed only for collecting political contributions from donors. An electoral trust can contribute to more than one party. To illustrate, if ten individuals and one company have contributed to an Electoral Trust and the donations are distributed to three political parties, the information about which individual contributed to which political party will not be disclosed. In this manner, the purpose of curbing black money in electoral financing will be met while there would be no fear of consequences from political opponents because the information as to which political party the contributions were made to is not disclosed., On 6 June 2014, the Election Commission of India circulated Guidelines for submission of contribution reports of Electoral Trusts mandating, in the interest of transparency, that all Electoral Trusts shall submit an Annual Report containing details of contributions received and disbursed by them to political parties. Pursuant to the Guidelines, Electoral Trusts submit Annual Reports to the Election Commission of India every year.
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For example, according to the Annual Report of the Prudent Electoral Trust for the financial year 2021-22, the Trust received contributions of a total of Rupees 4,64,83,00,116 from seventy contributors including individuals and companies. The contributions were unequally distributed to the Aam Aadmi Party, All India Congress Committee, Bharatiya Janata Party, Goa Congress Committee, Goa Forward Party, Indian National Congress, Punjab Lok Congress, Samajwadi Party, Shiromani Akali Dal, Telangana Rashtra Samiti, and YSR Congress. From the report, it cannot be discerned if contributor A contributed to a particular political party. It can only be concluded that contributor A could have contributed to the Party. Thus, even if the argument of the Union of India that the other alternative means such as the other modes of electronic transfer do not realize the objective of curbing black money substantially because contributors would resort to cash donations due to the fear of consequences is accepted, Electoral Trusts are an effective alternative. There will be a lesser degree of political consequences for contributions made to the Electoral Trust because the information about which of the contributors contributed to which of the parties will not be disclosed. It is only where the Electoral Trust contributes to one political party, would there be a possibility of political consequences and witch‑hunting (assuming that there is a link between anonymity and contributions). However, in that case, it is a choice expressly made by the contributors. Additionally, the law mandates disclosure only of contributions made above twenty thousand rupees in a financial year. So, for contributions less than twenty‑five thousand rupees, cheques and other modes of electronic transfer are an effective alternative., When these three methods of political contribution (electronic transfer other than electoral bonds, contribution to Electoral Trust, and Electoral Bonds) are placed on a continuum, transfer through electronic means (other than electoral bonds) would be placed on one end and Electoral Bonds would be placed on the other end. A voter would receive complete information about contributions made above twenty thousand rupees to a political party in the case of electronic transfer made directly to a political party other than through electoral bonds., With respect to contributions through electoral bonds, the voter would not receive any information about financial contributions in terms of Section 29C of the Representation of the People Act as amended by the Finance Act. This Supreme Court of India in the interim order dated 31 October 2023 in the specific context of contributions made by companies through electoral bonds prima facie observed the voter would be able to secure information about the funding by matching the information of the aggregate sum contributed by the company (as required to be disclosed under Section 182(3) of the Companies Act as amended by the Finance Act) with the information disclosed by the political party. However, on a detailed analysis of the Scheme and the amendments we are of the opinion that such an exercise would not reveal the particulars of the donations because the company under the provisions of Section 182 and the political party are only required to disclose the consolidated amount contributed and received through Electoral Bonds respectively. The particulars about the political party to which the contributions were made, which is crucial to the right to information of political funding, cannot be identified through the matching exercise., With respect to contributions to an Electoral Trust, a voter receives partial information. The voter would know the total amount contributed by the donor and that the donor contributed to one of the political parties (in case the Electoral Trust has made contributions to multiple parties). But the donor would not be aware of the exact details of the contribution., Assuming that anonymity incentivizes contributions through banking channels (which would lead to curbing black money in the electoral process), electoral bonds would be the most effective means in curbing black money, followed by Electoral Trust, and then other means of electronic transfer. This conclusion is premised on the belief that the Electoral Bond curbs black money. However, the Scheme is not foolproof. The Electoral Bond Scheme does not provide any regulatory check to prevent the trading of bonds though Clause 14 of the Electoral Bond Scheme states that the bonds shall not be eligible for trading., On an overall balance of the impact of the alternative means on the right to information and its ability to fulfill the purpose, for contributions below twenty thousand rupees, contributions through other means of electronic transfer is the least restrictive means. For contributions above twenty thousand rupees, contributions through Electoral Trust is the least restrictive means. Having concluded that the Electoral Bond Scheme is not the least restrictive means to achieve the purpose of curbing black money in the electoral process, there is no necessity of applying the balancing prong of the proportionality standard., Based on the above discussion, we conclude that the Electoral Bond Scheme does not fulfill the least restrictive means test. The Electoral Bond Scheme is not the only means for curbing black money in Electoral Finance. There are other alternatives which substantially fulfill the purpose and impact the right to information minimally when compared to the impact of electoral bonds on the right to information., Donor Privacy. The Union of India submitted that information about financial contributions to political parties is not disclosed to protect the contributors' informational privacy to political affiliation. There are two limbs to the argument of the Union of India with respect to the purpose of donor privacy. First, that the State interest in introducing the Electoral Bond Scheme which guarantees confidentiality (or anonymity) to financial contributions is that it furthers donor privacy; and second, this State interest facilitates a guaranteed fundamental right. Thus, the submission of the State is that the right to information can be restricted even if donor privacy is not traceable to the grounds in Article 19(2) because privacy is a fundamental right in itself. This Supreme Court of India needs to decide the following issues to determine if the right to information of voters can be restricted on the ground of donor privacy: (a) Whether the fundamental right to informational privacy recognized by this Court in Justice K.S. Puttaswamy (J) v. Union of India includes information about a citizen's political affiliation; and (b) If (a) above is answered in the affirmative, whether financial contribution to a political party is a facet of political affiliation., Information privacy of financial contributions to political parties. In Justice K.S. Puttaswamy (J) (supra), a nine‑Judge Bench of this Court held that the Constitution guarantees the right to privacy. This Court traced the right to privacy to the constitutional ideals of dignity, liberty, and the thread of non‑arbitrariness that runs through the provisions of Part III. The scope of the right to privacy discussed in Justice K.S. Puttaswamy (J) (supra) is summarized below: (a) The right to privacy includes repose, that is, the freedom from unwanted stimuli, sanctuary, the protection against intrusive observation into intimate decisions and autonomy with respect to personal choices; (b) Privacy over intimate decisions includes decisions related to the mind and body. Privacy extends to both the decision and the process of arriving at the decision. A lack of privacy over thought (which leads to decision‑making) would suppress voices and lead to homogeneity which is contrary to the values that the Constitution espouses; (c) Privacy over decisions and choices would enable the exercise of fundamental freedoms such as the freedom of thought, expression, and association freely without coercion; (d) Privacy is attached to a person and not a space. The scope of privacy cannot be restricted only to the private space; and (e) Privacy includes informational privacy. Information which may seem inconsequential in silos can be used to influence decision‑making behavior when aggregated., The content of privacy is not limited to private actions and decisions such as the choice of a life partner, procreation and sexuality. Neither is privacy merely defined from the point of direct State intrusion. Privacy is defined as essential protection for the exercise and development of other freedoms protected by the Constitution, and from direct or indirect influence by both State and non‑State actors. Viewed in this manner, privacy takes within its fold decisions which also have a public component., The expression of political beliefs is guaranteed under Article 19(1)(a). Forming political beliefs and opinion is the first stage of political expression. The freedom of political expression cannot be exercised freely in the absence of privacy of political affiliation. Information about a person's political beliefs can be used by the State at a political level, to suppress dissent, and at a personal level, to discriminate by denying employment or subjecting them to trolls. The lack of privacy of political affiliation would also disproportionately affect those whose political views do not match the views of the mainstream., In the specific context of exercising electoral franchise, the lack of privacy of political affiliation would be catastrophic. It is crucial to electoral democracy that the exercise of the freedom to vote is not subject to undue influence. It is precisely for this reason that the law recognizes certain corrupt practices by candidates. These corrupt practices do not merely include financial corrupt practices such as bribery. They also include undue influence of the voters by an attempt to interfere with the free exercise of electoral right, publication of false information about the personal character of any candidate, and providing vehicles for the free conveyance of electors. The law penalizes practices which have the effect of disenfranchising the voter through illegitimate means., Information about a person's political affiliation can be used to disenfranchise voters through voter surveillance. Voter databases which are developed through surveillance identify voting patterns of the electors and attempt to interfere with their opinions based on the information. For example, the data of online purchase histories such as the books purchased (which would indicate the ideological leaning of the individual), clothing brands used (which would indicate the social class to which the individual belongs) or the news consumed or the newspapers subscribed (which would indicate the political leanings or ideologies) can be used to draw on the relative political affiliation of people. This information about the political affiliation of individuals can then be used to influence their votes. Voter surveillance gains particular significance when fewer people have attachments to political parties., At a systemic level, information secured through voter surveillance could be used to invalidate the foundation of the electoral system. Information about political affiliation could be used to engage in gerrymandering, the practice by which constituencies are delimited based on the electoral preference of the voters., Informational privacy to political affiliation is necessary to protect the freedom of political affiliation and exercise of electoral franchise. Thus, it follows from the judgment of this Court in Justice K.S. Puttaswamy (J) (supra) and the observations above that the Constitution guarantees the right to informational privacy of political affiliation., Having concluded that the Constitution guarantees a right to informational privacy of political affiliation, it needs to be decided if the right can be extended to the contributions to political parties. The Electoral Bond Scheme has two manifestations of privacy: first, informational privacy by prescribing confidentiality vis‑vis the political party; and second, informational privacy by prescribing non‑disclosure of the information of political contributions to the public. The Union of India submitted that contributions made to political parties must be protected both from the political party itself and the public because donor privacy is an extension of the principle of secret ballot and is a facet of free and fair elections. The petitioners argue that equating political contributions with expression of political preference through voting is flawed because it conflates money with speech. The petitioners also argue that informational privacy does not extend to political contributions because they are by their very nature public acts which influence public policy, and thus, must be subject to public scrutiny., The issue before this Court is not whether public funding of political parties is permissible. Neither is the issue whether a restriction can be placed on the contribution which can be made by a citizen to a political party. If it was, then the question of whether financial contribution to a political party is in furtherance of the right to freedom of political speech and expression under Article 19(1)(a) or the right to freedom to form associations under Article 19(1)(c) would arise. However, that not being the case, this Court is not required to decide whether financial contribution to a political party is protected by Articles 19(1)(a) and 19(1)(c)., This Court in Justice K.S. Puttaswamy (J) (supra) did not trace the right to privacy to a particular provision of the Constitution such as Article 21. Rather, this Court observed that privacy is crucial for the fulfilment of the constitutional values of self‑determination, autonomy and liberty in addition to its essentiality for realizing the fundamental freedoms such as the freedom of speech and expression. This Court further held that the non‑intrusion of the mind (the ability to preserve beliefs, thoughts and ideologies) is as important as the non‑intrusion of the body. This Court (supra) did not hold that privacy is extendable to the action of speech or the action of expression, both of which are required to possess a communicative element to receive the protection under Article 19(1)(a). Rather, the proposition in Justice K.S. Puttaswamy (J) is that privacy (including informational privacy) is extendable to thoughts, beliefs, and opinions formed for the exercise of speech and action. Thus, informational privacy would extend to financial contributions to political parties even if contributions are not traceable to Article 19(1)(a) provided that the information on political contributions indicates the political affiliation of the contributor., Financial contributions to political parties are usually made for two reasons. First, they may constitute an expression of support to the political party and second, the contribution may be based on a quid pro quo. The law as it currently stands permits contributions to political parties by both corporations and individuals. The huge political contributions made by corporations and companies should not be allowed to conceal the reason for financial contributions made by another section of the population: a student, a daily wage worker, an artist, or a teacher. When the law permits political contributions and such contributions could be made as an expression of political support which would indicate the political affiliation of a person, it is the duty of the Constitution to protect them. Not all political contributions are made with the intent of attempting to alter public policy. Contributions are also made to political parties which are not substantially represented in the legislatures. Contributions to such political parties are made purely with the intent of expressing support. At this juncture, the close association of money and politics which has been explained above needs to be recounted. Money is not only essential for electoral outcomes and for influencing policies. It is also necessary for true democratic participation. It is necessary for enhancing the number of political parties and candidates contesting the elections which would in turn impact the demographics of representatives in the Assembly. It is true that contributions made as quid pro quo transactions are not an expression of political support. However, to not grant the umbrella of informational privacy to political contributions only because a portion of the contributions is made for other reasons would be impermissible. The Constitution does not turn a blind eye merely because of the possibilities of misuse., Privacy vis‑vis political party. The second issue is whether the right to privacy of political contributions can be extended to include privacy vis‑vis the political party to which contributions are made since according to the Union of India under the Electoral Bond Scheme, the political party to which the contribution is made would not know the particulars of the contributor. Hence, it is submitted that the scheme is akin to the secret ballot., We are unable to see how the disclosure of information about contributors to the political party to which the contribution is made would infringe political expression. The disclosure of the particulars of the contributions may affect the freedom of individuals to the limited extent that the political party with the information could coerce those who have not contributed to them. However, we have already held above that the scheme only grants de jure and not de facto confidentiality vis‑vis the political party. Under the current Scheme, it is still open to the political party to coerce persons to contribute. Thus, the argument of the Union of India that the Electoral Bond Scheme protects the confidentiality of the contributor akin to the system of secret ballot is erroneous., Judicial approach towards balancing fundamental rights: establishing the double proportionality standard. At the core of governance is the conflict between different constitutional values or different conceptions of the same constitutional value. Countries with a written constitution attempt to resolve these conflicts by creating a hierarchy of rights within the constitutional order where a few fundamental rights are subject to others. For example, Article 25 of the Indian Constitution which guarantees the freedom of conscience, and the profession, practice and propagation of religion is subject to public order, morality, health and other provisions of Part III. The first exercise that the Court must undertake while balancing two fundamental rights is to determine if the Constitution creates a hierarchy between the two rights in conflict. If the Constitution does not create a hierarchy between the conflicting rights, the Courts must use judicial tools to balance the conflict between the two rights., The judicial approach towards balancing fundamental rights has evolved over the course of years. Courts have used the collective interest or the public interest standard, the single proportionality standard, and the double proportionality standard to balance the competing interests of fundamental rights., Before the proportionality standard was employed to test the validity of the justification for the infringement of fundamental rights, Courts balanced conflicting fundamental rights by according prominence to one fundamental right over the other based on public interest. This approach was undertaken through two modalities. In the first modality, the Court while identifying the fundamental rights in conflict circumscribed one of the fundamental rights in question such that there was no real conflict between the rights. The Court while circumscribing the right undertook an exercise of weighing the relative constitutional values of the rights based on public interest. In Re Noise Pollution, writ petitions were filed seeking to curb noise pollution. A two‑Judge Bench of this Court observed that those who make noise often justify their actions based on freedom of speech and expression guaranteed under Article 19(1)(a). However, this Court observed that the right to freedom of speech and expression does not include the freedom to engage in aural aggression. In this case, there was no necessity for this Court to balance two fundamental rights because the right in question (freedom of speech and expression) was circumscribed to not include the actions challenged (noise pollution). In Subramanian Swamy v. Union of India, Sections 499 and 500 of the Indian Penal Code 1860 which criminalized defamation were challenged. A two‑Judge Bench of this Court framed the issue as a conflict between the right to speech and expression under Article 19(1)(a) and the right to reputation traceable to Article 21. In this case, the two‑Judge Bench held that the right to speech and expression does not include the right to defame a person. Justice Dipak Misra (as the learned Chief Justice then was) observed that a contrary interpretation would completely abrogate the right to reputation., In the second modality of the public interest approach, the Courts undertook a comparison of the values which the rights (and the conceptions of the rights) espouse and gave more weightage to the right which was in furtherance of a higher degree of public or collective interest. In Asha Ranjan v. State of Bihar, this Court held that when there is a conflict between two individuals with respect to their right under Article 21, the facts and circumstances must be weighed on the scale of constitutional norms and sensibility and larger public interest. In PUCL (supra), one of the issues before this Court was whether the disclosure of the assets of the candidates contesting the elections in furtherance of the right to information of the voters violates the right to privacy of candidates. Justice Reddi authoring the concurring opinion observed that the right to information of the assets of candidates contesting elections trumps the right to privacy because the former serves a larger public interest. In Mazdoor Kisan Shakti Sangathan v. Union of India, proceedings under Article 32 were initiated challenging orders issued under Section 144 of the Code of Criminal Procedure prohibiting protests in certain areas in Delhi. The issue before this Court was whether the total ban of protests at the Jantar Mantar Road would violate the right to protest which is traceable to Articles 19(1)(a) and 19(1)(b). One of the inter‑related issues was whether the right to hold peaceful demonstrations violates the right of consequence which impairs circulation of thought and ideas. The Court held that demonstrations as it has been happening are causing serious discomfort to the residents, and that the right to protest could be balanced with the right to peaceful residence if authorities had taken adequate safeguards such as earmarking specific areas for protest, placing restrictions on the use of loudspeakers and on parking of vehicles around residential places., The judgment of this Court in Mazdoor Kisan Shakti (supra), represents the gradual shift from the pre‑proportionality phase to the proportionality stage which signifies a shift in the degree of justification and the employment of a structured analysis for balancing fundamental rights. In Mazdoor Kisan Shakti (supra), this Court applied one of the prongs of the proportionality standard (the least restrictive means prong) while balancing the right to protest and the right to peaceful residence. The Court identified other means which would have infringed the right to a peaceful residence to a lesser extent., In 2012, a five‑Judge Bench of this Court in Sahara India Real Estate Corporation Limited v. Securities and Exchange Board of India, used a standard which resembled the structured proportionality standard used in Justice K.S. Puttaswamy (5J) v. Union of India to balance the conflict between two fundamental rights. This judgment marked the first departure from the series of cases in which this Court balanced two fundamental rights based on doctrinal predominance. In Sahara (supra), the petitioner submitted a proposal for the repayment of optionally fully convertible bonds to the investors. The details of the proposals were published by a news channel. Interlocutory applications were filed in the Court praying for the issuance of guidelines for reporting matters which are sub‑judice. This Court resolved the conflict between the freedom of press protected under Article 19(1)(a) and the right to free trial under Article 21 by evolving a neutralizing device. This Court held that it has the power to evolve neutralizing devices such as the postponement of trial, retrial, change of venue, and in appropriate cases, grant acquittal in case of excessive media prejudicial publicity to neutralize the conflicting rights. This Court followed the Canadian approach in evolving a two‑prong standard to balance fundamental rights through neutralizing devices which partly resembled the structured proportionality standard. The two‑prong test was as follows: (a) There is no other reasonable alternative measure available (necessity test); and (b) The salutary effects of the measure must outweigh the deleterious effects on the fundamental rights (proportionality standard)., Finally, this Court in Justice K.S. Puttaswamy (5J) (supra) applied the structured proportionality standard to balance two fundamental rights. In this case, a Constitution Bench of this Court while testing the validity of the Aadhaar Act 2016 had to resolve the conflict between the right to informational privacy and the right to food. Justice Sikri writing for the majority held that the Aadhaar Act fulfills all the four prongs of the proportionality standard. In the final prong of the proportionality stage, that is the balancing stage, this Court held that one of the considerations was to balance the right to privacy and the right to food. On balancing the fundamental rights, this Court held that the provisions furthering the right to food satisfy a larger public interest whereas the invasion of privacy rights was minimal., However, the single proportionality standard which is used to test whether the fundamental right in question can be restricted for the State interest (that is, the legitimate purpose) and if it can, whether the measure used to restrict the right is proportional to the objective is insufficient for balancing the conflict between two fundamental rights. The proportionality standard is an effective standard to test whether the infringement of the fundamental right is justified. It would prove to be ineffective when the State interest in question is also a reflection of a fundamental right., The proportionality standard is by nature curated to give prominence to the fundamental right and minimize the restriction on it. If this Court were to employ the single proportionality standard to the considerations in this case, at the suitability prong, this Court would determine if non‑disclosure is a suitable means for furthering the right to privacy.
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At the necessity stage, the Supreme Court of India would determine if non‑disclosure is the least restrictive means to give effect to the right to privacy. At the balancing stage, the Supreme Court of India would determine if non‑disclosure has a disproportionate effect on the right holder. In this analysis, the necessity and the suitability prongs will inevitably be satisfied because the purpose is substantial: it is a fundamental right. The balancing stage will only account for the disproportionate impact of the measure on the right to information (the right) and not the right to privacy (the purpose) since the Supreme Court of India is required to balance the impact on the right with the fulfillment of the purpose through the selected means. Thus, the Supreme Court of India while applying the proportionality standard to resolve the conflict between two fundamental rights preferentially frames the standard to give prominence to the fundamental right which is alleged to be violated by the petitioners (in this case, the right to information). This could well be critiqued for its limitations., In Campbell v. MGM Limited, Baroness Hale adopted the double proportionality standard to adequately balance two conflicting fundamental rights. In this case, the claimant, a public figure, instituted proceedings against a newspaper for publishing details of her efforts to overcome drug addiction. Baroness Hale applied the following standard to balance the right to privacy of the claimant and the right to a free press: “This involved looking first at the comparative importance of the actual rights being claimed in the individual case; then at the justifications for interfering with or restricting each of those rights; and applying the proportionality test to each.”, In Central Public Information Officer, Supreme Court of India v. Subash Chandra Agarwal, Justice D Y Chandrachud, while authoring the concurring opinion, adopted the double proportionality standard as formulated in Campbell. Referring to the double proportionality standard, the concurring opinion observes that the Supreme Court of India while balancing between two fundamental rights must identify the precise interests weighing in favour of both disclosure and privacy and not merely undertake a doctrinal analysis to determine if one of the fundamental rights takes precedence over the other. For example, where an information applicant sought the disclosure of how many leaves were taken by a public employee and the reasons for such leave, the need to ensure accountability of public employees is a clear public interest favouring disclosure. The reasons for the leave may also include medical information, creating a clear privacy interest favouring non‑disclosure. It is insufficient to state that the privacy interest in medical records is extremely high and therefore the outcome should be blanket non‑disclosure. The principle of proportionality may necessitate that the number of and reasons for the leaves be disclosed while the medical reasons for the leave be omitted. This would ensure that the interest in accountability is only abridged to the extent necessary to protect the legitimate aim of the privacy of the public employee., Baroness Hale in Campbell employed a three‑step approach to balance fundamental rights. The first step is to analyse the comparative importance of the actual rights claimed. The second step is to lay down the justifications for the infringement of the rights. The third is to apply the proportionality standard to both the rights. The approach adopted by Baroness Hale must be slightly tempered to suit our jurisprudence on proportionality. Indian courts adopt a four‑prong structured proportionality standard to test the infringement of fundamental rights. In the last stage of the analysis, the Supreme Court of India undertakes a balancing exercise to analyse whether the cost of the interference with the right is proportional to the extent of fulfilment of the purpose. It is in this step that the Supreme Court of India analyses the comparative importance of the considerations involved in the case, the justifications for the infringement of the rights, and whether the effect of infringement of one right is proportional to achieve the goal. Thus, the first two steps laid down by Baroness Hale are subsumed within the balancing prong of the proportionality analysis., Based on the above discussion, the standard which must be followed by the Supreme Court of India to balance the conflict between two fundamental rights is as follows: a) Does the Constitution create a hierarchy between the rights in conflict? If yes, then the right which has been granted a higher status will prevail over the other right involved. If not, the following standard must be employed from the perspective of both rights where rights A and B are in conflict: b) Whether the measure is a suitable means for furthering right A; c) Whether the measure is least restrictive and equally effective to realise right A and right B; and d) Whether the measure has a disproportionate impact on right A., Validity of the Electoral Bond Scheme, Section 11 of the Finance Act and Section 137 of the Finance Act., Section 13A of the Information Technology Act, before amendment, mandated that a political party must maintain a record of contributions exceeding twenty thousand rupees. Section 11 of the Finance Act, 2017 amended Section 13A creating an exception for contributions made through Electoral Bonds. Upon the amendment, political parties are not required to maintain a record of any contribution received through electoral bonds. Section 29C of the Representation of the People Act mandated the political party to prepare a report with respect to contributions received in excess of twenty thousand rupees from a person or company in a financial year. Section 137 of the Finance Act amended Section 29C of the Representation of the People Act by exempting political parties from including contributions received by electoral bonds in their report. As explained earlier, the feature of anonymity of the contributor vis‑vis the public is intrinsic to the Electoral Bond Scheme. Amendments had to be made to Section 13A of the Information Technology Act and Section 29C of the Representation of the People Act to implement the Electoral Bond Scheme because the scheme mandates anonymity of the contributor. In this section, we will answer the question of whether the Electoral Bond Scheme adequately balances the right to informational privacy of the contributor and the right to information of the voter., In Justice K. S. Puttaswamy (9 J) (supra), the Supreme Court of India did not trace the right to privacy only to Article 21. The Supreme Court of India considered privacy as an essential component for the effective fulfillment of all entrenched rights. Article 25 of the Constitution is the only provision in Part III which subjects the right to other fundamental rights. Article 25 guarantees the freedom of conscience, which means the freedom to judge the moral qualities of one's conduct. Financial contributions to a political party (as a form of expression of political support and belief) can be traced to the exercise of the freedom of conscience under Article 25. It can be argued that the right to information of the voter prevails over the right to anonymity of political contributions, which may be traceable to the freedom of conscience recognized under Article 25, since it is subject to all other fundamental rights, including Article 19(1)(a). However, the right to privacy of financial contributions to political parties can also be traced to Article 19(1) because the informational privacy of a person's political affiliation is necessary to enjoy the right to political speech under Article 19(1)(a), the right to political protests under Article 19(1)(b), the right to form a political association under Article 19(1)(c), and the right to life and liberty under Article 21. The Constitution does not create a hierarchy amongst these rights. Thus, there is no constitutional hierarchy between the right to information and the right to informational privacy of political affiliation., The Supreme Court of India must now apply the double proportionality standard, that is, the proportionality standard to both rights (as purposes) to determine if the means used are suitable, necessary and proportionate to the fundamental rights. The Union of India submitted that Clause 7(4) of the Electoral Bond Scheme balances the right to information of the voter and the right to informational privacy of the contributor. Clause 7(4) stipulates that the information furnished by the buyer shall be treated as confidential by the authorized bank. The bank must disclose the information when it is demanded by a competent court or upon the registration of a criminal case by a law‑enforcement agency. It needs to be analyzed whether the measure employed (Clause 7(4)) balances the rights or tilts the balance towards one of the fundamental rights., The first prong of the analysis is whether the means has a rational connection with both purposes, that is, informational privacy of political contributions and disclosure of information to the voter. It is not necessary that the means chosen be the only means capable of realising the purpose of the state action. This stage of the analysis does not prescribe an efficiency standard. It is sufficient if the means constitute one of the many methods by which the purpose can be realised, even if it only partially gives effect to the purpose., The Supreme Court of India, while applying the suitability prong to the purpose of privacy of political contribution, must consider whether the non‑disclosure of information to the voter and its disclosure only when demanded by a competent court and upon the registration of a criminal case has a rational nexus with the purpose of achieving privacy of political contribution. Undoubtedly, the measure of prescribing non‑disclosure of information about political funding shares a nexus with the purpose. The non‑disclosure grants anonymity to the contributor, thereby protecting informational privacy. It is certainly one of the ways capable of realising the purpose of informational privacy of political affiliation., The suitability prong must next be applied to the purpose of disclosure of information about political contributions to voters. There is no nexus between the balancing measure adopted and the purpose of disclosure of information to the voter. According to Clause 7(4) of the Electoral Bond Scheme and the amendments, the information about contributions made through the Electoral Bond Scheme is exempted from disclosure requirements. This information is never disclosed to the voter. The purpose of securing information about political funding cannot be fulfilled by absolute non‑disclosure. The measure adopted does not satisfy the suitability prong with respect to the purpose of information of political funding. However, let us proceed to apply the subsequent prongs of the double proportionality analysis assuming that the means adopted has a rational nexus with the purpose of securing information about political funding to voters., The next stage of the analysis is the necessity prong. At this stage, the Supreme Court of India determines if the measure identified is the least restrictive and equally effective measure. The Court must determine if there are other possible means which could have been adopted to fulfil the purpose, and whether such alternative means (a) realise the purpose in a real and substantial manner; (b) impact fundamental rights differently; and (c) are better suited on an overall comparison of the degree of realising the purpose and the impact on fundamental rights., The provisions of the Representation of the People Act provide an alternative measure. Section 29C states that contributions in excess of twenty thousand rupees received from a person or company for that financial year must be disclosed by the political party through a report. The report must be filed in the format prescribed in Form 24A of the Conduct of Election Rules, 1961. A crucial component of this provision, when juxtaposed with Section 13A of the Information Technology Act, must be noted. Section 13A requires the political party to maintain a record of contributions made in excess of twenty thousand rupees. Section 29C requires the political party to disclose information about contributions in excess of twenty thousand rupees made by a person or company in a financial year. Section 13A mandates record‑keeping of every contribution, whereas Section 29C mandates disclosure of information of contributions beyond twenty thousand rupees per person or per company in one financial year., Section 29C(1) is one of the means to achieve the purpose of protecting the informational privacy of political affiliation of individuals. Parliament, in its wisdom, has prescribed twenty thousand rupees as the threshold where the considerations of disclosure of information of political contribution outweigh the considerations of informational privacy. It could be debated whether twenty thousand rupees is on the lower or higher range of the spectrum; however, that is not a question for the Supreme Court of India to answer in this batch of petitions. The petitioners have not challenged the threshold of twenty thousand rupees prescribed for the disclosure of information under Section 29C. They have only raised a challenge to the disclosure exemption granted to contributions by Electoral Bonds. Thus, the Supreme Court of India need not determine if the threshold tilts the balance in favour of one of the interests. We are only required to determine if the disclosure of information on financial contributions in a year beyond twenty thousand rupees is an alternative means to achieve the purposes of securing information on financial contributions and informational privacy regarding political affiliation., It must be recalled that we have held above that the right to information of the voter includes the right to information of financial contributions to a political party because of the influence of money in electoral politics (through electoral outcomes) and governmental decisions (through a seat at the table and quid pro quo arrangements between the contributor and the political party). The underlying rationale of Section 29C(1) is that contributions below the threshold do not have the ability to influence decisions, and the right to information of financial contributions does not extend to contributions which do not have the ability to influence decisions. Similarly, the right to privacy of political affiliations does not extend to contributions which may be made to influence policies. It only extends to contributions made as a genuine form of political support where disclosure would indicate political affiliation and curb various forms of political expression and association., It is quite possible that contributions made beyond the threshold could also be a form of political support and not necessarily a quid pro quo arrangement, and contributions below the threshold could influence electoral outcomes. However, the restriction on the right to information and informational privacy of such contributions is minimal when compared to a blanket non‑disclosure of information on contributions to political parties. Thus, this alternative realises the objective of securing disclosure for an informed voter and informational privacy to political affiliation in a real and substantial manner. The measure in the Electoral Bond Scheme completely tilts the balance in favour of the purpose of informational privacy and abrogates informational interests. On an overall comparison of the measure and the alternative, the alternative is better suited because it realises the purposes to a considerable extent and imposes a lesser restriction on the fundamental rights. Having concluded that Clause 7(4) of the Scheme is not the least restrictive means to balance the fundamental rights, there is no necessity of applying the balancing prong of the proportionality standard., The Union of India has been unable to establish that the measure employed in Clause 7(4) of the Electoral Bond Scheme is the least restrictive means to balance the right to informational privacy of political contributions and the right to information of political contributions. Thus, the amendment to Section 13A(b) of the Information Technology Act introduced by the Finance Act, 2017, and the amendment to Section 29C(1) of the Representation of the People Act are unconstitutional. The question is whether the Supreme Court of India should only strike down the non‑disclosure provision in the Electoral Bond Scheme, that is Clause 7(4). However, as explained above, the anonymity of the contributor is intrinsic to the Electoral Bond Scheme. The Electoral Bond is not distinguishable from other modes of contributions through banking channels such as cheque transfer, transfer through the Electronic Clearing System or direct debit if the anonymity component of the Scheme is struck down. Thus, the Electoral Bond Scheme, 2018 will also consequentially have to be struck down as unconstitutional., Validity of Section 154 of the Finance Act amending Section 182(3) of the Companies Act., Before the 2017 amendment, Section 182(3) of the Companies Act mandated companies to disclose the details of the amount contributed to a political party along with the name of the political party to which the amount was contributed in its profit and loss account. After the amendment, Section 182(3) only requires the disclosure of the total amount contributed to political parties in a financial year. For example, under the pre‑amendment provision, if a company contributed twenty thousand rupees to a political party, the company was required to disclose in its profit and loss account the details of the specific contributions made to that political party. After the 2017 amendment, the company is only required to disclose that it contributed twenty thousand rupees to a political party without disclosing the details of the contribution, that is, the political party to which the contribution was made. The profit and loss account of a company is included in the financial statement which companies are mandated to prepare. A copy of the financial statement adopted at the annual general meeting of the company must be filed with the Registrar of Companies., As discussed in the earlier segment of this judgment, the Companies Act, 1956 was amended in 1960 to include Section 293A by which contributions by companies to political parties and for political purposes were regulated. Companies were permitted to contribute within the cap prescribed. All such contributions were required to be disclosed by the company in its profit and loss account with details. Companies which contravened the disclosure requirement were subject to fine. It is crucial to note that contributions to political parties by companies were regulated long before the Information Technology Act was amended in 1978 to exempt the income of political parties through voluntary contributions for tax purposes (ostensibly to curb black money). It is clear as daylight that the purpose of mandating the disclosure of contributions made by companies was not merely to curb black money in electoral financing but crucially to make the financial transactions between companies and political parties transparent. Contributions for political purposes were widely defined in the 1985 amendment (later incorporated in Section 182 of the Companies Act, 2013) to include expenditure (either directly or indirectly) for advertisement on behalf of political parties and payment to a person who is carrying activity which can be regarded as likely to affect public support to a political party. This indicates that the legislative intent of the provision mandating disclosure was to bring transparency to political contributions by companies. Companies have always been subject to a higher disclosure requirement because of their huge financial presence and the higher possibility of quid pro quo transactions between companies and political parties. The disclosure requirements in Section 182(3) were included to ensure that corporate interests do not have an undue influence in electoral democracy, and if they do, the electorate must be made aware of it., Section 182(3) as amended by the Finance Act, 2017 mandates the disclosure of total contributions made to political parties. This requirement would ensure that the money contributed to political parties is accounted for. However, the deletion of the mandate of disclosing the particulars of contributions violates the right to information of the voter because they would not possess information about the political party to which the contribution was made, which, as we have held above, is necessary to identify corruption and quid pro quo transactions in governance. Such information is also necessary for exercising an informed vote., Section 182(3) of the Companies Act and Section 29C of the Representation of the People Act as amended by the Finance Act must be read together. Section 29C exempts political parties from disclosing information of contributions received through Electoral Bonds. However, Section 182(3) applies not only to contributions made through electoral bonds but through all modes of transfer. In terms of the provisions of the Representation of the People Act, if a company made contributions to political parties through cheque or ECS, the political party had to disclose the details in its report. Thus, the information about contributions by the company would be in the public domain. The only purpose of amending Section 182(3) was to bring the provision in tune with the amendment under the Representation of the People Act exempting disclosure requirements for contributions through electoral bonds. The amendment to Section 182(3) of the Companies Act becomes otiose in terms of our holding in the preceding section that the Electoral Bond Scheme and relevant amendments to the Representation of the People Act and the Information Technology Act mandating non‑disclosure of particulars on political contributions through electoral bonds is unconstitutional., In terms of Section 136 of the Companies Act, every shareholder in a company has a right to a copy of the financial statement which also contains the profit and loss account. The petitioners submitted that the non‑disclosure of the details of the political contributions made by companies in the financial statement would infringe upon the right of the shareholders to decide to sell the shares of a company if a shareholder does not support the political ideology of the party to which contributions were made. This was contended to violate Articles 19(1)(a), 19(1)(g), 21 and 25. We do not see the necessity of viewing the non‑disclosure requirement in Section 182(3) of the Companies Act from the lens of a shareholder in this case when we have identified the impact of non‑disclosure of information on political funding from the larger compass of a citizen and a voter. In view of the above discussion, Section 182(3) as amended by the Finance Act, 2017 is unconstitutional., Challenge to unlimited corporate funding., The Companies Act, 1956, as originally enacted, did not contain any provision relating to political contributions by companies. Nevertheless, many companies sought to make contributions to political parties by amending their memorandum. In Jayantilal Ranchhoddas Koticha v. Tata Iron and Steel Co. Ltd., the decision of the company to amend its memorandum enabling it to make contributions to political parties was challenged before the High Court of Judicature at Bombay. The High Court upheld the decision of the company to amend its memorandum on the ground that there was no law prohibiting companies from contributing to the funds of a party. Chief Justice M. C. Chagla cautioned against the influential role of big business and money bags in throttling democracy. The learned judge emphasized that it is the duty of courts to prevent any influence being exercised upon the voter which is an improper influence or which may be looked at from any point of view as a corrupt influence. Chief Justice Chagla highlighted the grave danger inherent in permitting companies to donate to political parties and hoped Parliament would consider under what circumstances and limitations companies should be permitted to make these contributions., Subsequently, Parliament enacted the Companies (Amendment) Act, 1960 to incorporate Section 293A in the 1956 Act. The new provision allowed a company to contribute to (a) any political party; or (b) for any political purpose to any individual or body. However, the amount of contribution was restricted to either twenty‑five thousand rupees in a financial year or five percent of the average net profits during the preceding three financial years, whichever was greater. The provision also mandated every company to disclose in its profit and loss account any amount contributed by it to any political party or for any political purpose to any individual or body during the financial year to which that account relates, giving particulars of the total amount contributed and the name of the party, individual, or body to which such amount has been contributed., In 1963, the Report of the Santhanam Committee on Prevention of Corruption highlighted the prevalence of corruption at high political levels due to unregulated collection of funds and electioneering by political parties. The Committee suggested a total ban on all donations by incorporated bodies to political parties. Subsequently, Section 293A of the 1956 Act was amended through the Companies (Amendment) Act, 1969 to prohibit companies from contributing funds to any political party or to any individual or body for any political purpose., In 1985, Parliament again amended Section 293A, reversing its previous ban on political contributions by companies. It allowed a company, other than a government company and any other company with less than three years of existence, to contribute any amount to any political party or to any person for any political purpose. It further provided that the aggregate of amounts which may be contributed by a company in any financial year shall not exceed five percent of its average net profits during the three immediately preceding financial years. This provision was retained under Section 182 of the Companies Act, 2013. The only change was that the aggregate amount donated by a company was increased to seven and a half percent of its average net profits during the three immediately preceding financial years. Section 154 of the Finance Act, 2017 amended Section 182 of the 2013 Act to delete this limit contained in the first proviso of the provision., At the outset, it is important to be mindful that the petitioners are not challenging the vires of Section 182 of the 2013 Act. Neither are the petitioners challenging the legality of contributions made by companies to political parties. The challenge is restricted to Section 154 of the Finance Act, 2017 which amended Section 182 of the 2013 Act., The petitioners argue that Section 154 of the Finance Act, 2017 violates Article 14 of the Constitution. The primary ground of challenge is that the amendment to Section 182 of the 2013 Act is manifestly arbitrary as it allows companies, including loss‑making companies, to contribute unlimited amounts to political parties. It has also been argued that the law now facilitates the creation of shell companies solely for the purpose of contributing funds to political parties. On the other hand, the respondent has questioned the applicability of the doctrine of manifest arbitrariness for invalidating legislation., The relevant question that the Supreme Court of India has to answer is whether a legislative enactment can be challenged on the sole ground of manifest arbitrariness. Article 14 of the Constitution provides that the State shall not deny to any person equality before the law or the equal protection of laws within the territory of India. Article 14 is an injunction to both the legislative and executive organs of the State to secure equality before law and equal protection of the laws for all persons within India. Traditionally, Article 14 was understood to guarantee non‑discrimination. Courts held that Article 14 does not forbid all classifications but only those which are discriminatory. In State of West Bengal v. Anwar Ali Sarkar, Justice S. R. Das (as the learned Chief Justice then was) laid down two conditions which a legislation must satisfy to overcome the inhibition of Article 14: first, the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others; and second, the differentia must have a rational relation to the object sought to be achieved by the legislation. In the ensuing years, the Supreme Court of India followed this traditional approach to test the constitutionality of legislation on the touchstone of Article 14.
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In E.P. Royappa v. State of Tamil Nadu, the Supreme Court of India expanded the ambit of Article 14 by laying down non‑arbitrariness as a limiting principle in the context of executive actions. Justice P.N. Bhagwati, speaking for the Bench, observed that equality is a dynamic concept with many aspects and dimensions which cannot be confined within traditional doctrinaire limits. The opinion declared that equality is antithetic to arbitrariness, further finding that equality belongs to the rule of law in a republic, while arbitrariness belongs to the whim and caprice of an absolute monarch., In Ajay Hasia v. Khalid Mujib Seheravardi, a Constitution Bench of the Supreme Court of India considered it well settled that any action that is arbitrary necessarily involves negation of equality. Justice Bhagwati observed that the doctrine of non‑arbitrariness can also be extended to legislative action, stating that wherever there is arbitrariness in State action—whether legislative, executive, or authority under Article 12—Article 14 immediately springs into action and strikes down such State action., Immediately after the judgment in Ajay Hasia, Justice E.S. Venkataramaiah, as the learned Chief Justice then was, in Indian Express Newspapers (Bombay) Private Ltd. v. Union of India, laid down the test of manifest arbitrariness with respect to subordinate legislation. It was held that subordinate legislation does not enjoy the same degree of immunity as a statute passed by a competent legislature and may be questioned on the ground that it is unreasonable, not merely because it is unreasonable, but because it is manifestly arbitrary., In Sharma Transport v. Government of Andhra Pradesh, the Supreme Court of India reiterated Indian Express Newspapers (supra) by observing that the test of arbitrariness as applied to executive action cannot be applied to delegated legislation unless it is shown that the delegated legislation is not reasonable and is manifestly arbitrary. The Court defined arbitrariness as acting in an unreasonable manner, fixed or done capriciously or at pleasure, without an adequate determining principle, non‑rational, and not founded on reason or judgment., While the Supreme Court of India accepted that subordinate legislation can be challenged on the ground of manifest arbitrariness, there was divergence regarding plenary legislation. In State of Tamil Nadu v. Ananthi Ammal, a three‑Judge Bench held that a statute can be declared invalid under Article 14 if it is found to be arbitrary or unreasonable. Similarly, in Dr. K.R. Lakshmanan v. State of Tamil Nadu, a three‑Judge Bench invalidated legislation on the ground that it was arbitrary and violated Article 14. Conversely, in State of Andhra Pradesh v. McDowell & Co., another three‑Judge Bench held that plenary legislation cannot be struck down on the ground that it is arbitrary or unreasonable, limiting invalidation to lack of legislative competence or violation of fundamental rights., The divergence became more apparent when a three‑Judge Bench in Malpe Vishwanath Acharya v. State of Maharashtra invalidated certain provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, declaring them unreasonable, arbitrary, and violative of Article 14, though the Court did not strike them down because the extended period of the statute was about to end. Similarly, in Mardia Chemicals Ltd. v. Union of India, a three‑Judge Bench invalidated Section 17(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 for being unreasonable and arbitrary., In Natural Resources Allocation, In Re Special Reference No. 1 of 2012, a Constitution Bench referred to McDowell (supra) and observed that a law may not be struck down as arbitrary without a constitutional infirmity. A mere finding of arbitrariness is insufficient; the Court must enquire whether the legislation contravenes any other constitutional provision or principle., In Shayara Bano v. Union of India, a Constitution Bench set aside the practice of Triple Talaq. Justice R.F. Nariman, speaking for the majority, held that Triple Talaq is manifestly arbitrary because it allows a Muslim man to capriciously break a marital tie without any attempt at reconciliation. Justice Nariman applied the principle of manifest arbitrariness to test the constitutional validity of the legislation under Article 14., Justice Nariman traced the evolution of non‑arbitrariness jurisprudence in India, noting that McDowell (supra) failed to consider Ajay Hasia (supra) and K.R. Lakshmanan (supra). He further observed that McDowell (supra) did not notice Maneka Gandhi v. Union of India, where the Supreme Court held that substantive due process is part of Article 21 and must be read along with Articles 14 and 19. Accordingly, Justice Nariman held that arbitrariness of legislation is a facet of unreasonableness in Articles 19(2)‑(6) and can be used as a standard to strike down legislation under Article 14, deeming McDowell (supra) per incuriam and bad in law., Shayara Bano clarified In Re Special Reference No. 1 of 2012 (supra) by holding that a finding of manifest arbitrariness is itself a constitutional infirmity and a ground for invalidating legislation for violation of Article 14. The Court held that there is no rational distinction between subordinate legislation and plenary legislation for the purposes of Article 14, and the test of manifest arbitrariness laid down in Indian Express Newspapers (supra) applies equally to plenary legislation. The Court further explained that manifest arbitrariness must be something done by the legislature capriciously, irrationally, or without an adequate determining principle, and that excessive and disproportionate legislation is also manifestly arbitrary., In Navtej Singh Johar v. Union of India, Section 377 of the Indian Penal Code, 1860 was challenged on the ground that it is manifestly arbitrary. Chief Justice Dipak Misra, writing for himself and Justice A.M. Khanwilkar, held that Section 377 is manifestly arbitrary for failing to distinguish between consensual and non‑consensual sexual acts between consenting adults. Justice Nariman, in a concurring opinion, observed that Section 377 is manifestly arbitrary for penalising consensual gay sex and for not distinguishing between consensual and non‑consensual conduct. Justice D.Y. Chandrachud noted that Section 377, to the extent that it penalises the physical manifestation of love by the LGBTQ+ community, is manifestly arbitrary. Justice Indu Malhotra observed that the provision is manifestly arbitrary because its basis of criminalisation is the sexual orientation of a person, which is not a rational principle., In Joseph Shine v. Union of India, a Constitution Bench expressly concurred with the doctrine of manifest arbitrariness as evolved in Shayara Bano. Justice D.Y. Chandrachud observed that the doctrine serves as a check against state action or legislation that contains elements of caprice, irrationality, or lacks an adequate determining principle. The case challenged the validity of Section 497 of the Indian Penal Code, which penalised a man who had sexual intercourse with a woman he knew or had reason to believe to be the wife of another man, without the consent of that man. Justice Nariman observed that the provision had paternalistic undertones because it did not penalise a married man for having sexual intercourse with a married woman if he obtained the husband's consent, treating the woman as chattel. The Court held that the provision was archaic, had lost its rationale, and was manifestly arbitrary, thus violating Article 14., It is now a settled position of law that a statute can be challenged on the ground that it is manifestly arbitrary. The standard laid down by Justice Nariman in Shayara Bano has been cited with approval by the Constitution Benches in Navtej Singh Johar and Joseph Shine. Courts, while testing the validity of a law on the ground of manifest arbitrariness, must determine whether the statute is capricious, irrational, without an adequate determining principle, or excessive and disproportionate., A provision lacks an adequate determining principle if its purpose is not in consonance with constitutional values. Courts must distinguish between the ostensible purpose claimed by the State and the real purpose identified by the Courts based on the material, such as a reading of the provision. A provision is manifestly arbitrary even if it does not make a classification., The Supreme Court of India has distinguished between formal equality—equality before the law—and substantive equality—equal protection of the laws. Formal equality requires the law to treat everyone equally in a formal sense, while substantive equality seeks to secure factual equality by recognizing that not everyone is equally placed and that the degree of harm suffered varies because of unequal situations. The legislature may make classifications to achieve factual equality, and it is unreasonable, unjust, and arbitrary if the legislature does not identify the degrees of harm for the purpose of law., It is not the constitutional role of the Supreme Court of India to second‑guess the intention of the legislature in enacting a particular statute. The legislature represents the democratic will of the people, and courts must presume that the legislature is aware of the needs of the people. However, courts must avoid equating plenary legislation with subordinate legislation. Justice Fazl Ali summed up the scope of plenary and delegated legislation, emphasizing that the legislature must discharge its primary legislative function itself, may delegate only ancillary functions, and cannot abdicate its legislative powers., In Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. Assistant Commissioner of Sales Tax, a Constitution Bench held that subordinate legislation is ancillary to the statute and must be consistent with the parent law, acting in good faith, reasonably, within the delegated power, and on relevant material facts. The doctrine of manifest arbitrariness, as developed in Indian Express Newspapers (supra) for subordinate legislation, applies when the subordinate legislation is so arbitrary that it cannot be said to conform with the statute or it offends Article 14., In Khoday Distilleries Ltd. v. State of Karnataka, the Supreme Court reiterated Indian Express Newspapers (supra) by holding that delegated legislation is manifestly arbitrary if it could not be reasonably expected to emanate from an authority delegated with law‑making power. Similarly, in State of Tamil Nadu v. P. Krishnamurthy, the Court held that subordinate legislation can be challenged on the ground of manifest arbitrariness where the legislature never intended to give authority to make such rules, or where the delegate failed to consider vital facts required by the statute or the Constitution., Application of manifest arbitrariness to plenary legislation requires a different standard because plenary legislation enjoys greater immunity than subordinate legislation. While a legislative action can be tested for manifest arbitrariness, there must be a distinction between plenary and subordinate legislation when they are challenged on that ground., The validity of Section 154 of the Finance Act, 2017, which omitted the first proviso to Section 182 of the Companies Act, 199, was examined. The amendment allows a company, other than a government company and a company existing for less than three financial years, to contribute unlimited amounts to any political party, and permits both profit‑making and loss‑making companies to contribute. The issue was whether the removal of contribution restrictions is manifestly arbitrary and violates Article 14., The Supreme Court has consistently pointed out the pernicious effect of money on the integrity of the electoral process in India. The Law Commission of India, in its 170th Report, observed that most business houses already know where their interests lie and make contributions accordingly to the political party likely to advance those interests. This issue becomes particularly problematic when considering the avenues through which political parties accumulate capital., The Preamble to the Constitution describes India as a democratic republic where citizens are guaranteed political equality irrespective of caste and class and where the value of every vote is equal. Democracy does not begin and end with elections; it sustains because the elected are responsive to the electors. The question arises whether the elected would truly be responsive if companies with huge finances were permitted to contribute unlimited amounts, facilitating quid pro quo arrangements., In Kesavananda Bharati v. State of Kerala, the majority of the Supreme Court held that republican and democratic forms of government are basic elements of the constitutional structure. In Indira Nehru Gandhi v. Raj Narain, Justice H.R. Khanna reiterated that the democratic setup is a part of the basic features of the Constitution. Elections matter in a democracy because they are the most profound expression of the will of the people, and free and fair elections are a necessary concomitant to the maintenance of the democratic form of government., The Supreme Court has consistently held that free and fair elections are essential to democracy. In Kuldip Nayar v. Union of India, a Constitution Bench held that a democratic form of government depends on a free and fair election system. In People's Union for Civil Liberties v. Union of India, the Court observed that free and fair elections denote equal opportunity to all people and must not be rigged, manipulated, or subject to unfair means., Article 324 places the Election Commission in charge of the entire electoral process, from the issuance of the notification by the President to the final declaration of results. However, the Election Commission is not the sole duty‑bearer; the legislature, executive, and judiciary also have positive constitutional duties to secure the integrity of the electoral process., During the arguments, the learned Solicitor General submitted that the limit of seven and a half percent of average net profits in the preceding three financial years was perceived as a restriction on companies wishing to donate beyond the statutory cap, and that companies might create shell companies to circumvent the cap. It was suggested that the statutory cap was removed to discourage the creation of shell companies., The limit on contributions was incorporated in Section 293A of the 1956 Act through the Companies (Amendment) Bill, 1985. The original restriction was five percent of a company's average net profits during the three immediately preceding financial years. The then Minister of Chemicals and Fertilizers and Industry justified the restriction by stating that companies without profits should not be encouraged to make political contributions, and that a monetary ceiling based on a percentage of profits had been done away with., Thus, the object behind limiting contributions was to discourage loss‑making companies from contributing to political parties. In 1985, Parliament prescribed that only companies existing for more than three years could contribute, also to prevent loss‑making and shell companies from making financial contributions. When the amendment to Section 182 of the 2013 Act was proposed in 2017, the Election Commission opposed it, warning that it would open the possibility of shell companies being set up solely to donate to political parties., After the amendment, companies, similar to individuals, can make unlimited contributions, and both profit‑making and loss‑making companies may contribute to political parties. The amendment effectively removes the classification between companies and individuals, and between profit‑making and loss‑making companies, for the purpose of political contributions. The principle of manifest arbitrariness, as discussed above, must therefore be recalled.
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The doctrine of manifest arbitrariness can be used to strike down a provision where the legislature fails to make a classification by recognizing the degrees of harm and the purpose is not in consonance with constitutional values. One of the reasons for which companies may contribute to political parties could be to secure income tax benefit. However, companies have been contributing to political parties much before the Indian legal regime in 2003 exempted contributions to political parties. Contributions are made for reasons other than saving on the Income Tax. The chief reason for corporate funding of political parties is to influence the political process which may in turn improve the company's business performance. A company, whatever may be its form or character, is principally incorporated to carry out the objects contained in the memorandum. The amendment now allows a company, through its Board of Directors, to contribute unlimited amounts to political parties without any accountability and scrutiny. Unlimited contribution by companies to political parties is antithetical to free and fair elections because it allows certain persons or companies to wield their clout and resources to influence policy making. The purpose of Section 182 is to curb corruption in electoral financing. For instance, the purpose of banning a Government company from contributing is to prevent such companies from entering into the political fray by making contributions to political parties. The amendment to Section 182 by permitting unlimited corporate contributions, including by shell companies, authorises unrestrained influence of companies on the electoral process. This is violative of the principle of free and fair elections and political equality captured in the value of one person one vote., The ability of a company to influence the electoral process through political contributions is much higher when compared to that of an individual. A company has a much greater influence on the political process, both in terms of the quantum of money contributed to political parties and the purpose of making such contributions. Contributions made by individuals have a degree of support or affiliation to a political association. However, contributions made by companies are purely business transactions, made with the intent of securing benefits in return. In Citizens United v. Federal Election Commission, the issue before the Supreme Court of the United States was whether a corporation can use the general treasury funds to pay for electioneering communication. The majority held that limitations on corporate funding ban political speech through contributions based on the corporate identity of the contributor. Justice Steven, writing for the minority on the issue of corporate funding, observed that companies and natural persons cannot be treated alike for the purposes of political funding: In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by non‑residents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process., In view of the above discussion, we are of the opinion that companies and individuals cannot be equated for the purpose of political contributions. Before the amendment to Section 182, companies could only contribute a certain percentage of the net aggregate profits. The provision classified between loss‑making companies and profit‑making companies for the purpose of political contributions and for good reason. The underlying principle of this distinction was that it is more plausible that loss‑making companies will contribute to political parties with a quid pro quo and not for the purpose of income tax benefits. The provision, as amended by the Finance Act 2017, does not recognise that the harm of contributions by loss‑making companies in the form of quid pro quo is much higher. Thus, the amendment to Section 182 is also manifestly arbitrary for not making a distinction between profit‑making and loss‑making companies for the purposes of political contributions. The amendment is manifestly arbitrary for (a) treating political contributions by companies and individuals alike; (b) permitting the unregulated influence of companies in the governance and political process, violating the principle of free and fair elections; and (c) treating contributions made by profit‑making and loss‑making companies to political parties alike. The observations made above must not be construed to mean that the Legislature cannot place a cap on the contributions made by individuals. The exposition is that the law must not treat companies and individual contributors alike because of the variance in the degree of harm on free and fair elections., In view of the discussion above, the following are our conclusions: (a) The Electoral Bond Scheme, the proviso to Section 29C(1) of the Representation of the People Act 1951 as amended by Section 137 of the Finance Act 2017, Section 182(3) of the Companies Act as amended by Section 154 of the Finance Act 2017, and Section 13A(b) as amended by Section 11 of the Finance Act 2017 are violative of Article 19(1)(a) of the Constitution and unconstitutional; and (b) The deletion of the proviso to Section 182(1) of the Companies Act permitting unlimited corporate contributions to political parties is arbitrary and violative of Article 14 of the Constitution., We direct the disclosure of information on contributions received by political parties under the Electoral Bond Scheme to give logical and complete effect to our ruling. On 12 April 2019, the Supreme Court of India issued an interim order directing that the information of donations received and donations which will be received must be submitted by political parties to the Election Commission of India in a sealed cover. The Supreme Court of India directed that political parties submit detailed particulars of the donors as against each bond, the amount of each bond and the full particulars of the credit received against each bond, namely, the particulars of the bank account to which the amount has been credited and the date on which each such credit was made. During the course of the hearing, Mr Amit Sharma, counsel for the Election Commission of India, stated that the Election Commission of India had only collected information on contributions made in 2019 because a reading of Paragraph 14 of the interim order indicates that the direction was only limited to contributions made in that year. Paragraphs 13 and 14 of the interim order are extracted below: \In the above perspective, according to us, the just and proper interim direction would be to require all the political parties who have received donations through Electoral Bonds to submit to the Election Commission of India in sealed cover detailed particulars of the donors as against each bond; the amount of each such bond and the full particulars of the credit received against each bond, namely, the particulars of the bank account to which the amount has been credited and the date of each such credit. The above details will be furnished forthwith in respect of Electoral Bonds received by a political party till date. The details of such other bonds that may be received by such a political party up to the date fixed for issuing such bonds as per the Note of the Ministry of Finance dated 28 February 2019, i.e. 15 May 2019 will be submitted on or before 30 May 2019. The sealed covers will remain in the custody of the Election Commission of India and will abide by such orders as may be passed by the Court.\ Paragraph 14 of the interim order does not limit the operation of Paragraph 13. Paragraph 13 contains a direction in unequivocal terms to political parties to submit particulars of contributions received through Electoral Bonds to the Election Commission of India. Paragraph 14 only prescribes a timeline for the submission of particulars on contributions when the window for Electoral Bond contributions was open in 2019. In view of the interim direction of the Supreme Court of India, the Election Commission of India must have collected particulars of contributions made to political parties through Electoral Bonds., In view of our discussion above, the following directions are issued: (a) The issuing bank shall herewith stop the issuance of Electoral Bonds; (b) State Bank of India shall submit details of the Electoral Bonds purchased since the interim order of the Supreme Court of India dated 12 April 2019 till date to the Election Commission of India. The details shall include the date of purchase of each Electoral Bond, the name of the purchaser of the bond and the denomination of the Electoral Bond purchased; (c) State Bank of India shall submit the details of political parties which have received contributions through Electoral Bonds since the interim order of the Supreme Court of India dated 12 April 2019 till date to the Election Commission of India. State Bank of India must disclose details of each Electoral Bond encashed by political parties which shall include the date of encashment and the denomination of the Electoral Bond; (d) State Bank of India shall submit the above information to the Election Commission of India within three weeks from the date of this judgment, that is, by 6 March 2024; (e) The Election Commission of India shall publish the information shared by the State Bank of India on its official website within one week of the receipt of the information, that is, by 13 March 2024; and (f) Electoral Bonds which are within the validity period of fifteen days but that have not been encashed by the political party yet shall be returned by the political party or the purchaser depending on who is in possession of the bond to the issuing bank. The issuing bank, upon the return of the valid bond, shall refund the amount to the purchaser's account., Writ petitions are disposed of in terms of the above judgment. Pending applications, if any, stand disposed of. [Dr Dhananjaya Y. Chandrachud] [J. B. Pardiwala] [Manoj Misra] New Delhi; 15 February 2024., Section 29C of the Representation of the People Act 1951 (as amended by Section 137 of the Finance Act 2017) requires the treasurer of a political party or any other person authorised by the political party to prepare, in each financial year, a report of contributions in excess of twenty thousand rupees received from any person and from companies other than Government companies. The report shall be in the form prescribed and shall be submitted before the due date for furnishing a return of income under Section 139 of the Income Tax Act, 1961 to the Election Commission of India. Where the treasurer fails to submit the report, the political party shall not be entitled to any tax relief under the Income Tax Act., Section 182 of the Companies Act 2013 (as amended by Section 154 of the Finance Act 2017) provides that a company, other than a Government company and a company which has been in existence for less than three financial years, may contribute any amount directly or indirectly to any political party, subject to a resolution of the Board of Directors authorising the contribution. The amendment removed the cap of seven and a half per cent of average net profits and permitted unlimited contributions. Every company shall disclose in its profit and loss account the total amount contributed to any political party during the financial year, giving particulars of the total amount and the name of the party. Contributions must be made by account‑payee cheque, bank draft or electronic clearing system, although contributions may also be made through instruments issued under any scheme notified by law for contributions to political parties., Section 13A of the Income Tax Act 1995 (as amended by Section 11 of the Finance Act 2017) provides that any income of a political party chargeable under the head \Income from house property\ or \Income from other sources\ or any voluntary contribution received from any person shall not be included in the total income of the previous year of such political party, provided that the party keeps proper books of account, maintains records of each voluntary contribution in excess of ten thousand rupees including the name and address of the contributor, and has its accounts audited by an accountant as defined in the Explanation to Section 288. No donation exceeding two thousand rupees shall be received by the political party otherwise than by account‑payee cheque, bank draft, electronic clearing system or electoral bond. For the purposes of this provision, \electoral bond\ means a bond referred to in the Explanation to subsection (3) of Section 31 of the Reserve Bank of India Act., Section 31 of the Reserve Bank of India Act 1934 (as amended by Section 11 of the Finance Act 2017) states that no person in India other than the Bank or the Central Government shall draw, accept, make or issue any bill of exchange, hundi, promissory note or engagement for payment to bearer on demand, except that cheques or drafts payable to bearer on demand may be drawn on a person's account with a banker, shroff or agent. Notwithstanding anything contained in the Negotiable Instruments Act 1881, no person other than the Bank or the Central Government shall make or issue any promissory note payable to the bearer. The Central Government may authorise any scheduled bank to issue electoral bonds, where an electoral bond means a bond issued by any scheduled bank under the scheme as may be notified by the Central Government., Conduct of Elections Rules, 1961 (Statutory Rules and Order) require that a form be filed with the Election Commission of India before the due date for furnishing a return of the political party's income under Section 139 of the Income Tax Act, 1961, together with a certificate to claim exemption. The form includes details such as the name and status of the political party, address of headquarters, date of registration with the Election Commission, PAN, Income‑Tax Ward/Circle, and details of contributions received in excess of twenty thousand rupees during the financial year, including name and address of the contributor, amount, mode of contribution and, where applicable, bank details., Corporate funding of political parties has been a contentious issue with the legislature's approach varying over time. The Companies Act, 1956 introduced regulations and restrictions in 1960, a complete ban on contributions to political parties in 1969, and a partial lift with a 5 per cent cap on contributions in 1985. The Companies Act, 2013 replaced the 1956 Act and Section 182(1) permitted contributions of any amount by companies existing for more than three financial years and not being Government companies, retaining the requirement of Board resolution and enhancing the cap to 7.5 per cent of average net profits. The Finance Act, 2017 amended the Companies Act, the Income Tax Act, the Reserve Bank of India Act, the Representation of the People Act and the Foreign Contribution Regulation Act to allow contributions through Electoral Bonds. The specific changes are summarised in the table reproduced in the judgment.
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Notwithstanding anything contained in sub‑section (1), the contribution under this section shall not be made except by an account‑payee cheque drawn on a bank or an account‑payee bank draft or use of electronic clearing system through a bank account: Provided that a company may make contribution through any instrument, issued pursuant to any scheme notified under any law for the time being in force, for contribution to the political parties., Section 13‑A of the Income Tax Act, 1961 – Special provision relating to incomes of political parties. Any income of a political party which is chargeable under the head Income from house property or Income from other sources or capital gains or any income by way of voluntary contributions received by a political party from any person shall not be included in the total income of the previous year of such political party, provided that (a) such political party keeps and maintains books of account and other documents enabling the Assessing Officer to properly deduce its income; (b) for each voluntary contribution in excess of twenty thousand rupees, the party keeps a record of the contribution and the name and address of the contributor; and (c) the accounts of the party are audited by an accountant as defined in the Explanation to sub‑section (2) of Section 288. Provided further that if the Treasurer or any authorised person fails to submit a report under sub‑section (3) of Section 29‑C of the Representation of the People Act, 1951 for a financial year, no exemption under this section shall be available for that political party for that financial year., The same provision, as amended, adds that (d) no donation exceeding two thousand rupees is received by the political party otherwise than by an account‑payee cheque, an account‑payee bank draft, electronic clearing system, or electoral bond. Explanation: “political party” means a party registered under Section 29‑A of the Representation of the People Act, 1951. “electoral bond” means a bond referred to in the Explanation to sub‑section (3) of Section 31 of the Reserve Bank of India Act, 1934. Provided also that the party furnishes a return of income for the previous year in accordance with sub‑section (4B) of Section 139 on or before the due date., Section 31 of the Reserve Bank of India Act, 1934 – Issue of demand bills and notes. No person in India other than the Bank, or as expressly authorized by this Act the Central Government, shall draw, accept, make or issue any bill of exchange, hundi, promissory note or engagement for payment of money payable to bearer on demand, or borrow, owe or take up any sum of money on such instruments, provided that cheques or drafts, including hundis, payable to bearer on demand may be drawn on a person’s account with a banker, shroff or agent. Notwithstanding anything contained in the Negotiable Instruments Act, 1881, the Central Government may authorise any scheduled bank to issue electoral bonds. Explanation: “electoral bond” means a bond issued by any scheduled bank under a scheme notified by the Central Government., Section 29‑C of the Representation of the People Act, 1951 – Declaration of donation received by political parties. The treasurer or any authorised person shall, in each financial year, prepare a report of (a) contributions in excess of twenty thousand rupees received from any person, and (b) contributions in excess of twenty thousand rupees received from companies other than Government companies. The report shall be in the form prescribed and must be submitted before the due date for filing the party’s income‑tax return under Section 139 of the Income Tax Act, 1961 to the Election Commission of India. Failure to submit the report disqualifies the party from any tax relief under the Income Tax Act., Section 2 of the Foreign Contribution Regulation Act, 2010 – Definition of foreign source. Foreign source includes (i) the Government of any foreign country or territory and any agency thereof; (ii) any international agency other than the United Nations, its specialised agencies, the World Bank or the International Monetary Fund, or any other agency specified by the Central Government; (iii) a foreign company; (iv) a corporation, not being a foreign company, incorporated in a foreign country or territory; (v) a multinational corporation referred to in sub‑clause (iv) of clause (g); (vi) a company within the meaning of the Companies Act, 1956, where more than one‑half of the nominal share capital is held by foreign governments, foreign citizens, foreign corporations, or foreign trusts, societies or associations. However, where the share capital falls within the limits specified for foreign investment under the Foreign Exchange Management Act, 1999, the company shall not be treated as a foreign source., The Companies Act, 2013, as amended by the Finance Act, 2017, removes the cap on corporate funding for political parties. A company may contribute only by cheque, Electronic Clearing System, or demand draft, and must pass a board resolution. The amount contributed in a financial year must be disclosed in the profit and loss account, but the specific amounts and names of parties need not be disclosed. Section 182(3A) permits contribution through any instrument issued under a scheme notified by law., Section 13‑A of the Income Tax Act, 1961 exempts income of political parties, including financial contributions and investments, from income tax, provided the party maintains books of account, records of contributors exceeding Rs 20,000, and audited accounts. Section 80GGB and 80GGC, inserted in 2003, allow tax‑deductible contributions to political parties through banking channels. The Finance Act, 2017 amended Section 13‑A to require that contributions over Rs 2,000 be made only by cheque, bank draft, Electronic Clearing System or electoral bond., Section 29‑C of the Representation of the People Act, 1951, introduced in 2003, requires each political party to file a report of all contributions over Rs 20,000 to the Election Commission of India before the due date for filing income‑tax returns. Failure to submit the report disqualifies the party from any tax relief. The Finance Act, 2017 amendment exempts disclosures of contributions received by electoral bonds., Section 31(3) of the Reserve Bank of India Act, 1934, added by the Finance Act, 2017, enables issuance of electoral bonds, which are bearer promissory notes that do not disclose the name of the buyer or the payee. The Electoral Bonds Scheme, notified on 02 January 2018 by the Department of Economic Affairs, Ministry of Finance, specifies that bonds are issued in denominations of Rs 1,000, Rs 10,000, Rs 1,00,000, Rs 10,00,000 and Rs 1,00,00,000, are valid for fifteen days, and any un‑encashed amount is transferred to the Prime Minister’s Relief Fund. Bonds are non‑refundable., A person wishing to purchase a bond must apply in the prescribed format; non‑compliant applications are rejected. The authorised bank (State Bank of India and its specified branches) applies Know Your Customer requirements and may request additional documents. Payments for bond issuance must be made in Indian rupees through demand draft, cheque, Electronic Clearing System or direct debit. The buyer’s identity is confidential and may be disclosed only on order of a competent court or by a criminal investigation agency., Only eligible political parties – those registered under Section 29‑A of the Representation of the People Act, 1951 and having secured at least one percent of the votes polled in the last general election to the Lok Sabha or a State Legislative Assembly – may receive electoral bonds. Eligible parties can encash bonds through their bank account in the authorised bank. Bonds are made available for purchase for ten days each quarter (January, April, July, October) and for an additional thirty days in a year when general elections are held. Bonds are not tradable and no commission, brokerage or other charges are payable on issuance. The value of the bond is treated as income by way of voluntary contribution for tax exemption under Section 13‑A of the Income Tax Act, 1961., Several writ petitions under Article 32 of the Constitution of India seek a declaration that the Electoral Bonds Scheme and the amendments made by the Finance Act, 2017 are unconstitutional. Supreme Court of India is examining the constitutional validity of the Scheme and the amendments, but not the propriety of introducing them through a money bill under Article 110, which is sub‑judice before a seven‑judge Bench. Other petitions challenging amendments to the Foreign Contribution Regulation Act, 2010 by the Finance Acts of 2016 and 2018 are also pending., The Honorable Chief Justice observed that the Scheme cannot be tested on parameters applicable to economic policy; contributions to political parties relate to democratic polity, the citizens’ right to know and accountability. The primary objective of the Scheme and the amendments is electoral reform, not economic reform. Therefore, precedents on judicial review of economic policy matters are not applicable. Diluting the principle of free and fair elections by treating the Scheme as economic policy would be inappropriate., Supreme Court of India held that judicial review is not barred over matters of economic policy. While the legislature is given latitude in complex financial issues, the courts must still exercise review without a straitjacket. On the burden of proof, once petitioners establish a prima facie breach of a fundamental right, the onus shifts to the State to show that the measure pursues a proper purpose, has a rational nexus, is necessary, and maintains a proper balance., Supreme Court of India noted that the doctrine of presumption of constitutionality has limits when the test of proportionality is applied. Proportionality requires a polycentric examination, both empirical and normative. The standard of proof is the civil standard of balance of probabilities; scientific or social‑science evidence is considered where available, otherwise reason and logic may suffice., The right to vote is a constitutional and statutory right under Article 19(1)(a) and Article 326 of the Constitution. The citizens’ right to know stems from the right to vote, as informed choice requires access to information about political parties and their funding. Free and fair elections depend on the right to know., Decisions in Association for Democratic Reforms and People’s Union of Civil Liberties should not be read as restricting the right to know the antecedents of a candidate. Political parties, which are registered under Section 29‑A of the Representation of the People Act, 1951 and have secured at least one percent of votes, may receive electoral bonds. The funding of political parties cannot be treated differently from that of candidates., The Honorable Chief Justice referred to the Tenth Schedule of the Constitution, which provides for disqualification of legislators on grounds of defection, underscoring the importance of political parties. Section 77 of the Representation of the People Act, 1951, prescribes monetary limits for election expenditures. Denying voters the right to know the funding of political parties would create a dichotomy inconsistent with democratic principles., Democratic legitimacy requires both representative and participatory democracy. Effective public participation fulfills epistemic, ethical and democratic functions. Deliberative quality criteria include access to accurate and reliable information.
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The State has contested the writ petitions primarily on three grounds. First, donors of a political party often apprehend retribution from other political parties or actors and therefore their identities should remain anonymous. The electoral bonds uphold the right to privacy of donors by providing confidentiality. Donating money to a preferred political party is a matter of self‑expression by the donor, and revealing the identity invades the informational privacy of donors protected by the Constitution. The identity of the donor can be revealed only in exceptional cases, for instance on directions of a competent court or registration of a criminal case by any law enforcement agency. Second, the Scheme, by incentivising banking channels and providing confidentiality, checks the use of black or unaccounted money in political contributions. Third, the Scheme is an improvement to the prior legal framework. It has inbuilt safeguards such as compliance of donors with Know Your Customer norms, bearer bonds having a limited validity of fifteen days and recipients belonging to a recognised political party that has secured more than one percent of votes in the last general elections., Hon'ble Chief Justice has rejected the Union of India's submissions by applying the doctrine of proportionality. This principle is applied by courts when they exercise their power of judicial review in cases involving a restriction on fundamental rights. It is applied to strike an appropriate balance between the fundamental right and the pursued purpose and objective of the restriction., The test of proportionality comprises four steps. The first step is to examine whether the act or measure restricting the fundamental right has a legitimate aim. The second step is to examine whether the restriction has a rational connection with the aim. The third step is to examine whether there should have been a less restrictive alternate measure that is equally effective (minimal impairment or necessity test). The fourth step is to strike an appropriate balance between the fundamental right and the pursued public purpose (balancing act)., In Modern Dental College & Research Centre and Others v. State of Madhya Pradesh and Others, the Supreme Court of India had applied proportionality in its four‑part doctrinal form as a standard for reviewing right limitations in India. This test was later modified in K.S. Puttaswamy (Retired) and Anr. (Aadhaar) v. Union of India, where the Court adopted a more tempered approach. In Gujarat Mazdoor Sabha and Another v. State of Gujarat, the Court added a fifth prong to the proportionality test, stipulating that the state should provide sufficient safeguards against the abuse of such restriction. This fifth prong was relied upon in Ramesh Chandra Sharma and Others v. State of Uttar Pradesh and Others., The Court, inter alia, imposed a stricter test for the third and fourth prongs, namely necessity and balancing stages of the test of proportionality. Bilchitz proposes the following inquiry: first, identify a range of possible alternatives to the measure employed by the Government; second, determine the effectiveness of each alternative individually, assessing whether it realises the governmental objective in a real and substantial manner; third, determine the impact of the respective measures on the right at stake; and fourth, make an overall judgment as to whether an alternative which is preferable exists, requiring a form of balancing at the necessity stage., The test was also referred to in Anuradha Bhasin v. Union of India and Others, with the observation that the principle of proportionality is inherently embedded in the Constitution under the doctrine of reasonable restriction. This means that limitations imposed on a right should not be arbitrary or excessive beyond what is required in the interest of the public. The Court accepted a moderate interpretation of the necessity test, outlining four steps: (MN1) identify all feasible alternatives with explicit criteria of feasibility; (MN2) determine the relationship between the government measure, the identified alternatives, and the objective, retaining only those alternatives that realise the objective in a real and substantial manner; (MN3) assess the differing impact of the measure and the alternatives upon fundamental rights, recognising approximate impact; and (MN4) undertake an overall comparison and balancing exercise to decide whether the government measure is the best of all feasible alternatives, considering both the degree to which it realises the objective and the degree of impact upon fundamental rights., Dr. Justice D.Y. Chandrachud, as his Lordship then was, in K.S. Puttaswamy (Aadhaar) observed that the objective of the second prong of the rational connection test is essential to the test of proportionality. Justice Sanjay Kishan Kaul, in his concurring opinion in K.S. Puttaswamy (Privacy), held that actions must be sanctioned by law and the proposed actions must be necessary in a democratic society for a legitimate aim. The extent of interference must be proportionate to the need for such interference and there must be procedural guarantees against abuse of such interference., The test of proportionality is now widely recognised and employed by courts in various jurisdictions such as Germany, Canada, South Africa, Australia and the United Kingdom. However, there is not uniformity in how the test is applied or the method of using the last two prongs in these jurisdictions., The first two prongs of proportionality resemble a means‑ends review of the traditional reasonableness analysis and are applied relatively consistently across jurisdictions. Courts first determine if the ends of the restriction serve a legitimate purpose, and then assess whether the proposed restriction is a suitable means for furthering the same ends, meaning it has a rational connection with the purpose., In the third prong, courts examine whether the restriction is necessary to achieve the desired end. When assessing necessity, courts consider whether a less intrusive alternative is available to achieve the same ends, aiming for minimal impairment. The Supreme Court of India, relying on suggestions given by some jurists, emphasized the need to employ a moderate interpretation of the necessity prong., We will now delve into the fourth prong, the balancing stage, in some detail. This stage has been a matter of debate amongst jurists and courts. Some jurists believe that balancing is ambiguous and value‑based, stemming from the premise of rule‑based legal adjudication where courts determine entitlements rather than balancing interests. However, proportionality is a standard‑based review rather than a rule‑based one. Given the diversity of factual scenarios, the balancing stage enables judges to consider various factors by analysing them against the standards proposed by the four prongs of proportionality, ensuring that all aspects of a case are carefully weighed in decision‑making., While balancing is integral to the standard of proportionality, such an exercise should be rooted in empirical data and evidence. In most countries that adopt the proportionality test, the State places on record empirical data as evidence supporting the enactment and justification for the encroachment of rights. This is essential because the proportionality enquiry necessitates objective evaluation of conflicting values rather than relying on perceptions and biases. Empirical deference is given to the legislature owing to its institutional competence and expertise to determine complex factual legislation and policies. However, factors such as lack of parliamentary deliberation and failure to make relevant enquiries weigh in on the court's decision. In the absence of data and figures, there is a lack of standards by which proportionality stricto sensu can be determined., In Germany, the courts enjoy a high degree of judicial discretion. The parliament and the judiciary in Germany have the same goal, namely to realise the values of the German Constitution. Canadian courts, in practice, give wider discretion to the legislature when a restriction is backed by sufficient data and evidence. The constitutional court in South Africa, according to some jurists, collectively applies the four prongs of proportionality instead of a structured application. While proportionality is the predominant doctrine in Australia, an alternate calibrated scrutiny test is applied by a few judges, based on the premise that a contextual rather than a broad standard of review is required for constitutional adjudication., Findings of empirical legal studies provide a more solid foundation for normative reasoning and enhance understanding of the relationship between means and ends. In our view, proportionality analyses would be more accurate when empirical inquiries on causal relations between a legislative measure under review and the ends of such a measure are considered. This also leads to better and more democratic governance. While one cannot jump from 'is' to 'ought', to reach an 'ought' conclusion one must rely on accurate knowledge of 'is', for 'is' and 'ought' to be united. We emphasise the need to address the quantitative and empirical deficit for a contextual and holistic balancing analysis, while being mindful of the pitfalls of selective data sharing., To avoid this judgment from becoming complex, a chart is enclosed as Annexure A giving different viewpoints on the doctrine of proportionality as a test for judicial review exercised by the Supreme Court of India., When we turn to the reply or the defence of the Union of India in the present case, the matter of concern is the first submission made regarding the purpose and rationale of the Scheme and amendments to the Finance Act of 2017. The transcript of the hearing dated 01 November 2023 records the Union of India's submission that a donor may choose cash as a mode of payment to avoid identification and retaliation. The speaker explained that a contractor contributing to political parties may fear victimisation if the contribution is made by accounted money, and therefore prefers cash to ensure confidentiality, even though this practice converts clean money into unclean money and is disastrous for the economy., I am of the opinion that retribution, victimisation or retaliation cannot by any stretch be treated as a legitimate aim. This will not satisfy the legitimate purpose prong of the proportionality test. Neither is the Scheme nor the amendments to the Finance Act, 2017, rationally connected to the fulfilment of that purpose, namely to counter retribution, victimisation or retaliation in political donations. In our opinion, it will also not satisfy the necessity stage of the proportionality test even if the balancing stage is ignored., Retribution, victimisation or retaliation against any donor exercising their choice to donate to a political party is an abuse of law and power. The wrong itself cannot be a justification or a purpose. The argument therefore suffers on the grounds of inconsistency and coherence as it seeks to perpetuate and accept the wrong rather than correct it. The inconsistency is also apparent as the change in law, by giving a cloak of secrecy, leads to severe restriction and curtailment of the collective right to information and the right to know, which is a check against cases of retribution, victimisation and retaliation. Transparency, not secrecy, is the cure and antidote., Similarly, the second argument that the donor may like to keep his identity anonymous is a mere ipse dixit assumption. The plea of infringement of the right to privacy has no application if the donor makes the contribution, that too through a banking channel, to a political party. It is the transaction between the donor and the third person. The fact that a donation has been made to a political party has to be specified and is not left hidden. What is not revealed is the quantum of the contribution and the political party to which the contribution is made. When a donor purchases a bond, he must provide full particulars and fulfil the Know Your Customer norms of the bank. His identity is then known to the bank officers. Similarly, the officers in the branch of the authorised bank where the political party has an account and encashes the bond are known to the officers of that bank., The argument raised by the Union of India that details can be revealed when an order is passed by a court or when it is required for investigation pursuant to registration of a criminal case overlooks the fact that the identity of contributors should be concealed because of fear of retaliation, victimisation and reprisal. That fear would still exist as the identity of the purchaser of the bond can always be revealed upon registration of a criminal case or by an order or direction of the court. Thus, the so‑called protection exists only on paper and is not a good safeguard even if the purpose is legitimate. It fails the rational nexus prong., The fear of the identities of donors being revealed also exists because, under the Scheme, political parties in power may have asymmetric access to information with the authorised bank and may use their power to compel the revelation of bond‑related information. Thus, the entire objective of the Scheme is contradictory and inconsistent., Further, it is the case of the Union of India that parties in power at the Centre and State are the recipients of the highest amounts of donations through bonds. If that is the case, the argument of retribution, victimisation and retaliation is tempered and loses much of its force., The rational connection test fails since the purpose of curtailing black or unaccounted‑for money in the electoral process has no connection or relationship with the concealment of the identity of the donor. Payment through banking channels is easy and an existing antidote. On the other hand, obfuscation of the details may lead to unaccounted and laundered money being legitimised., The Reserve Bank of India had objected to the Scheme because the bonds could change hands after they have been issued. There is no check for the same, as the purchaser who has completed the Know Your Customer process, whose identity is then completely concealed, may not be the actual contributor or donor. In fact, the Scheme may enable the actual contributor or donor to leave no traceability or money trail., Money laundering can be undertaken in diverse ways. Political contributions for a quid pro quo may amount to money laundering, as defined under the Prevention of Money Laundering Act, 2002. The Financial Action Task Force has observed that the signatory states are required to check money laundering on account of contributions made to political parties. Article seven paragraph three of the United Nations Convention against Corruption, 2003 mandates the state parties to enhance transparency in political funding of candidates and parties. The convention is signed and ratified by India. By ensuring anonymity, the policy allows money laundered on account of quid pro quo or illegal connection to escape public scrutiny., The economic policies of the government have an impact on business and commerce. Political pressure groups promote different agendas, including perspectives on economic policies. As long as such pressure groups put forward their perspective with evidence and data, there should be no objection even if they interact with elected representatives. The position would be different if monetary contributions to political parties were made as a quid pro quo to secure a favourable economic policy. This would be an offence under the Prevention of Corruption Act, 1988 and also under the Prevention of Money Laundering Act. Such offences when committed by political parties in power can never see the light of day if secrecy and anonymity of the donor is maintained., In view of the aforesaid observations, the argument raised by the petitioners that there is no rational connection between the measure and the purpose, which is also illegitimate, has merit and should be accepted., On the question of alternative measures, that is the necessity prong of the proportionality test, it is accepted that post the amendments brought about by the Finance Act, 2017, political parties cannot receive donations in cash for amounts above rupees two thousand. However, political parties do not have to record the details and particulars of donations received for amounts less than rupees twenty thousand. Therefore, the reduction of the upper limit of cash donations from rupees twenty thousand to rupees two thousand serves no purpose. It is open to political parties to bifurcate the law and camouflage larger donations in smaller stacks. There is no way to verify the donor if the amount shown in the books of the political party is less than rupees two thousand., It is an accepted position that the Electoral Trust Scheme was introduced in 2013 to ensure the secrecy of contributors. As per the Trust Scheme, contributions could be made by a person or body corporate to the trust. The trust would thereafter transfer the amount to the political party. The trust is therefore treated as the contributor to the political party.
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The Election Commission of India issued guidelines dated 06.06.2014 whereby the trusts were required to specify and give full particulars to the Election Commission of India of the depositors with the trust and the amounts subsequently transferred as a contribution to the political party. The guidelines were issued by the Election Commission of India to ensure transparency and openness in the electoral process. The trust can have multiple donors and similarly contributions are made by the trust to multiple political parties. The disclosure requirements provided in the Election Commission of India's guidelines dated 06.06.2014 only impose disclosure requirements at the inflow and outflow points of the trust's donations, that is, the trust is required to provide particulars of its depositors and the amounts donated to political parties, including the names of the political parties., Thus, the Trust Scheme protects the anonymity of the donors vis-à-vis their contributions to the political party. When we apply the necessity test propounded in Anuradha Bhasin (supra), the Trust Scheme is examined for whether it achieves the objective of the Union of India in a real and substantial manner and is also a less restrictive alternate measure in view of the disclosure requirements, viz. the right to know of voters. The Trust Scheme is in force and is a result of the legislative process. In a comparison of limited alternatives, it is a measure that best realises the objective of the Union of India without significantly impacting the fundamental right of the voter to know. The Election Commission of India, if required, can suitably modify the guidelines dated 06.06.2014., Similarly, early campaign finance laws in the United Kingdom permitted trusts to donate to political parties. This practice was later disallowed as it was contrary to openness and accountability. See Suchindran Bhaskar Narayan and Lalit Panda, Money and Elections: Necessary Reforms in Electoral Finance, Vidhi 2018 at p. 19, and Lord Neill of Bladen, QC, Fifth Report of the Committee on Standards in Public Life: The Funding of Political Parties in the United Kingdom, 1998, pp. 61‑62., As elaborated in paragraph 27 of the judgment, Anuradha Bhasin (supra) proposes a four‑sub‑pronged inquiry at the necessity stage of proportionality, that is, (MN1) to (MN4). To arrive at the conclusion of the necessity inquiry, the Supreme Court of India has proposed at (MN4) that an overall comparison and balancing exercise must be undertaken between the measure and the alternatives. A judgment must be made whether the government measure is the best of all feasible alternatives, considering both the degree to which it realises the government objective and the degree of impact upon fundamental rights (the comparative component)., I would now come to the fourth prong. I would begin by first referring to the judgment cited by Honorable the Chief Justice in the case of Campbell v. MGM Limited (supra). This judgment adopts a double proportionality standard to adequately balance two conflicting fundamental rights., In Campbell (supra), Baroness Hale suggested a three‑step approach to balance conflicting fundamental rights when two rights are in play. The first step is to analyse the comparative importance of the fundamental rights being claimed in the particular case. In the second step, the court should consider the justification for interfering with or restricting each of the said rights. The third step requires the application of a proportionality standard to both these rights., In a subsequent decision, the House of Lords (Lord Steyn) in In re S (supra) distilled four principles to resolve the question of conflict of rights: First, neither article has precedence over the other. Second, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Third, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test., The fourth principle, that is, the ultimate balancing test, was elaborated upon by Sir Mark Potter in In Re W (supra) in the following terms: each Article propounds a fundamental right which there is a pressing social need to protect. Equally, each Article qualifies the right it propounds so far as it may be lawful, necessary and proportionate to do so in order to accommodate the other. The exercise to be performed is one of parallel analysis in which the starting point is presumptive parity, in that neither Article has precedence over or trumps the other. The exercise of parallel analysis requires the court to examine the justification for interfering with each right and the issue of proportionality is to be considered in respect of each., Fundamental rights are not absolute; legislations or policies restricting the rights may be enacted in accordance with the scheme of the Constitution. However, it is now well settled that the provisions of fundamental rights in Part III of the Constitution are not independent silos and have to be read together as complementary rights. Therefore, the thread of reasonableness applies to all such restrictions. Article 14, as observed by the Honorable Chief Justice, includes the facet of formal equality and substantive equality. Thus, the principle of equal protection of law requires the legislature and the executive to achieve factual equality. This principle can be extended to any restriction on fundamental rights which must be reasonable to the identified degree of harm. If the restriction is unreasonable, unjust or arbitrary, then the law should be struck down., When we apply the fourth prong, that is the balancing prong of proportionality, I have no hesitation that the Scheme falls foul and overwhelmingly negates the voters' right in an electoral process. Neither the right of privacy nor the purpose of incentivising donations to political parties through banking channels justifies the infringement of the right of voters. The voters' right to know and access to information is far too important in a democratic set‑up to be curtailed on the pretext of privacy and the desire to check the flow of unaccounted money to political parties. While secret ballots are integral to free and fair elections, transparency—not secrecy—in funding of political parties is a prerequisite for free and fair elections. The confidentiality of the voting booth does not extend to anonymity in contributions to political parties., In K.S. Puttasamy (9‑J) (Privacy) (supra), all opinions accept that the right to privacy has to be tested and is not absolute. The right to privacy must yield in given circumstances when dissemination of information is legitimate and required in state or public interest. Therefore, the right to privacy is to be applied by balancing the said right with social or public interest. The reasonableness of the restriction should not outweigh the particular aspect of privacy claimed. Justice Sanjay Kishan Kaul, in his opinion in K.S. Puttasamy (9‑J) (Privacy) (supra), has said that restriction on the right to privacy may be justifiable and is subject to the principle of proportionality when considering the right to privacy in relation to its function in society., As observed above, the right to privacy operates in the personal realm, but as the person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks contextually. In this context, the High Court of South Africa in My Vote Counts NPC v. President of the Republic of South Africa and Ors (2017) observes that, given the public nature of political parties and the fact that the private funds they receive have a distinctly public purpose, their rights to privacy can justifiably be attenuated. The same principles must, as a necessary corollary, apply to their donors., The great underlying principle of the Constitution is that rights of individuals in a democratic set‑up are sufficiently secured by ensuring each a share in political power. This right gets affected when a few make large political donations to secure selective access to those in power. Pressure groups that exert such persuasion within the boundaries of law are noted, but when money is exchanged as quid pro quo the line between persuasion and corruption becomes blurred., It is in this context that the High Court of Australia in Jeffery Raymond McCloy and Others v. State of New South Wales and Another (supra) observes that corruption can be of different kinds. When a wealthy donor makes a contribution to a political party in return for a benefit, it is described as quid pro quo corruption. More subtle corruption arises when those in power decide issues not on merits or the desires of their constituencies, but according to the wishes of large contributors. This kind of corruption is described as clientelism. It can arise from dependence on the financial support of a wealthy patron to a degree that it compromises the expectation, fundamental to representative democracy, that public power will be exercised in public interest. This affects the vitality and integrity of the political branches of government. While quid pro quo and clientelistic corruption erode the quality and integrity of government decision‑making, the power of money may also pose a threat to the electoral process itself. This phenomenon is referred to as war‑chest corruption., In Jefferey Raymond (supra), the High Court of Australia referred to the decision of the Supreme Court of Canada in Harper v. Canada (Attorney General) (supra), which upheld the legislative restriction on electoral advertising. The Supreme Court of Canada held that the State can provide a voice to those who otherwise might not be heard and can also restrict voices that dominate political discourse so that others can be heard as well., The Supreme Court of the United States in Buckley v. R. Valeo (1976) commented on the concern of quid pro quo arrangements and their dangers to a fair and effective government. Improper influence erodes confidence in the system of representative government. Conversely, disclosure provides the electorate with information as to where political campaign money comes from and how it is spent. This helps the voter evaluate candidates, identify interests to which candidates are likely to be responsive, and check actual corruption by exposing large contributions and expenditures to public scrutiny. Relying upon Grosjean v. American Press Co., it holds that informed public opinion is the most potent restraint upon misgovernment. Record keeping, reporting and disclosure are essential means of gathering data necessary to detect violations of contribution limitations., In NixON, Attorney General of Missouri et al v. Shrink Missouri Government PAC et al (2021), the Supreme Court of the United States observes that large contributions given to secure a political quid pro quo undermine the system of representative democracy. It stems public awareness of the opportunities for abuse inherent in a regime of large contributions. This affects the integrity of the electoral process not only through corruption or quid pro quo arrangements but also by making the beneficiary too compliant with the wishes of large contributors., Recently, a five‑judge Constitution Bench of the Supreme Court of India in Anoop Baranwal v. Union of India (2023) highlighted the importance of purity of the electoral process. The Court observed that without attaining power, political parties cannot achieve their goals; power becomes a means to an end. The goal can only be to govern so that the lofty aims enshrined in the directive principles are achieved while observing fundamental rights and the mandate of all laws. The pollution of the electoral process that precedes the gaining of power cannot be justified by the ends. The strength and credibility of a democracy depend upon the means employed to gain power being as fair as the conduct of government after the assumption of power., The Law Commission of India, in its 255th Report (March 2015), noted the concern that financial superiority can translate into electoral advantage. It observed that lobbying and capture give undue importance to big donors and certain interest groups at the expense of the ordinary citizen, violating the right of equal participation of each citizen in the polity. While noting the candidate‑party dichotomy in the regulations under Section 77 of the Representation of the People Act, 1951, the Law Commission recommends requiring candidates to maintain an account of contributions received from their political party (not in cash) or any other permissible donor., At this stage, we refer to the data available on the website of the Election Commission of India and the data submitted by the petitioners for a limited purpose to support our reasoning while applying balancing. We have not stricto sensu applied proportionality as the data is not sufficient for us. I also clarify that we have not opened the sealed envelope given by the Election Commission of India pursuant to the directions of this Court dated 02.11.2023., An analysis of the annual audit reports of political parties from 2017‑18 to 2022‑23 showcases party‑wise donations received through the Electoral Bonds. The table indicates that the majority of contributions through Bonds have gone to political parties which are ruling parties in the Centre and the States, and there has been a substantial increase in contribution/donation through Bonds., The petitioner Association for Democratic Reforms submitted a table which showcases party‑wise donation by corporate houses to national parties from 2016‑17 to 2021‑22. The data shows that the party‑wise donation by corporate houses has been more or less stagnant over these years. We do not have official comments from the Union of India or the Election Commission of India. The figures support our conclusion, but I would not, without certainty, base my analysis solely on these figures., We have data of denomination/sale of Electoral Bonds, as submitted by the petitioners, during the 27 phases from March 2018 to July 2023: 1 Crore – 12,999 bonds (54.13%) amounting to Rs 12,999 crore; 10 Lakhs – 7,618 bonds (31.72%) amounting to Rs 761.80 crore; 1 Lakh – 3,088 bonds (12.86%) amounting to Rs 30.88 crore; 10 Thousand – 208 bonds (0.86%) amounting to Rs 20.80 lakh; 1 Thousand – 99 bonds. Total bonds sold: 24,012 amounting to Rs 13,791.8979 crore. Analysis shows that more than 50 % of the bonds in number, and 94 % of the bonds in value terms were for Rs 1 crore. This indicates the quantum of corporate funding through the anonymous bonds., The share of income from unknown sources for national parties rose from 66 % during 2014‑15 to 2016‑17 to 72 % during 2018‑19 to 2021‑22. Between 2019‑20 and 2021‑22, bond income constituted 81 % of the total unknown income of national parties. The total unknown income, i.e., donations made under Rs 20,000, sale of coupons etc., increased from Rs 2,550 crore during 2014‑15 to 2016‑17 to Rs 8,489 crore during 2018‑19 to 2021‑22. Total income of national political parties without other known sources increased from Rs 3,864 crore to Rs 11,829 crore over the same periods. Bond income between 2018‑19 and 2021‑22 constitutes 58 % of the total income of national political parties., Based on the analysis of the data currently available, together with the observation that voters' right to know supersedes anonymity in political party funding, I conclude that the Scheme fails to meet the balancing prong of the proportionality test. I have not applied proportionality stricto sensu due to the limited availability of data and evidence., I respectfully agree with the reasoning and the finding recorded by Honorable the Chief Justice, holding that the amendment to Section 182 of the Companies Act, deleting the first proviso thereunder, should be struck down. While doing so, I apply the principle of proportionality, which subsumes the test of manifest arbitrariness. The claim of privacy by a corporate or a public limited company would be on very limited grounds, possibly to protect the privacy of individuals responsible for conducting the business. It would be difficult for a public or private limited company to claim a violation of privacy as its affairs have to be open to shareholders and the public., In consonance with the above reasoning and on application of the doctrine of proportionality, the proviso to Section 29C(1) of the Representation of the People Act, 1951, Section 182(3) of the Companies Act, 2013 (as amended by the Finance Act 2017), Section 13A(b) of the Income Tax Act, 1961 (as amended by the Finance Act 2017), and Section 31(3) of the Reserve Bank of India Act, 1934 (as amended by the Finance Act 2017) are held to be unconstitutional., The petitioners have not argued that corporate donations should be prohibited. However, some petitioners submitted that coercive threats are used to extract money from businesses as contributions virtually as protection money, that major opposition parties may be given smaller amounts to keep them happy, and that there should be a cap on the quantum of donations with funds stipulated for political purposes. Suggestions were also made that corporate funds should be accumulated and the corpus equitably distributed amongst national and regional parties. I have not examined these aspects in depth, but the issues raised require examination and study., By an interim order dated 26.03.2021, the Supreme Court of India, in the context of contributions made by companies through bonds, observed that the voter would be able to secure information about the funding by matching the aggregate sum contributed by the company, as required to be disclosed under Section 182(3) of the Companies Act (as amended by the Finance Act 2017), with the information disclosed by the political party. Justice D.Y. Chandrachud, Honorable the Chief Justice, rightly observes that this exercise would not reveal the particulars of donations, including the name of the donor., By the order dated 02.11.2023, this Court asked for the Election Commission of India's compliance with the interim order of this Court dated 12.04.2019. The order directed that all political parties who have received donations through Electoral Bonds submit to the Election Commission of India in sealed cover detailed particulars of the donors for each bond, the amount of each bond, and the full particulars of the credit received against each bond, namely, the bank account details and the date of each credit. The intent is that the Election Commission of India will continue to maintain full particulars of the donors against each bond., In view of the findings recorded above, I direct the Election Commission of India to disclose the full particular details of the donor and the amount donated to the particular political party through bonds. This direction is restricted to donations made on or after the interim order dated 12.04.2019. The donors/purchasers are unknown and not parties; the principle of lis pendens applies, and they cannot claim surprise., I therefore respectfully agree and conclude that: (i) the Scheme is unconstitutional and is struck down; (ii) the proviso to Section 29C(1) of the Representation of the People Act, Section 182(3) of the Companies Act, 2013, and Section 13A(b) of the Income Tax Act, 1961, as amended by the Finance Act, 2017, are unconstitutional and are struck down; (iii) deletion of the proviso to Section 182(1) of the Companies Act, 2013, permitting unlimited contributions to political parties, is unconstitutional and is struck down; (iv) sub‑section (3) of Section 31 of the Reserve Bank of India Act, 1934 and the Explanation thereto introduced by the Finance Act, 2017 are unconstitutional and are struck down; (v) the Election Commission of India will ascertain the details from the political parties and the State Bank of India, which has issued the bonds, and the bankers of the political parties and thereafter disclose the names of the donor/purchaser of the bonds and the amounts donated to the political party, to be completed as per the timelines fixed by the Honorable the Chief Justice; (vi) henceforth, as the Scheme has been declared unconstitutional, the issuance of fresh bonds is prohibited; (vii) if bonds issued within the validity period are with the donor/purchaser, they may return them to the authorised bank for refund; if bonds are with the donee/political party, the party will return the bonds to the issuing bank, which will then refund the amount to the donor/purchaser. On failure, the amount will be credited to the Prime Minister's Relief Fund. The writ petitions are allowed and disposed of in the above terms., Annexure‑A – Standards of Review – Proportionality & Alternatives. Proportionality is a standard‑based model. It allows factual and contextual flexibility to judges who encounter diverse factual scenarios to analyse and decide the outcome of factual clashes against the standards. Proportionality, particularly its balancing prong, has been criticized by jurists who contend that legal adjudication should be rule‑based rather than principle‑based. They argue that this provides legal certainty by virtue of rules being definitive in nature. In response, jurists in favour of balancing contend that neither rules nor principles are definitive but rather prima facie. Therefore, both rights and legislations or policies are required to be balanced and realised to the optimum possible extent.
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This jurisprudential clash is visible in the various forms and structures of adoptions of proportionality. Generally, two models can be differentiated from works of jurists. Model I: Firstly, the traditional two stages of the means‑end comparison are applied. After ascertaining the legitimate purpose of the law, the judge asks whether the imposed restriction is a suitable means of furthering this purpose (rational connection). Additionally, the judge ascertains whether the restriction was necessary to achieve the desired end. The reasoning focuses on whether a less intrusive means existed to achieve the same ends (minimal impairment/necessity). Francisco J. Urbina, A Critique of Proportionality, American Journal of Jurisprudence, Volume 57, 2012. Also see Ronald Dworkin, Taking Rights Seriously (Bloomsbury 2013), pages 41‑42. Robert Alexy, A Theory of Constitutional Rights (translated by Julian Rivers, first published 2002, Oxford University Press 2010), pages 47‑48., Model II: This model adds a fourth step to the first model, namely the balancing stage, which weighs the seriousness of the infringement against the importance and urgency of the factors that justify it. We have summarised the different models of proportionality and its alternatives, as propounded by jurists and adopted by courts internationally. We have also summarised other traditional standards of review such as the means‑ends test and Wednesbury unreasonableness for contextual clarity. In the last column we have captured the relevant criticisms, as propounded by jurists, to each such model., Four‑stage Proportionality: In this model, all four prongs of the proportionality test are employed, including the final balancing stage. According to Robert Alexy, values and interests (rights of citizens and objects of legislation or policy) are both principles and principles are optimisation requirements. Balancing was adopted by the German Constitutional Court in the 1950s as a new methodology for intensive judicial review of rights‑restricting legislation. The main premise of the criticisms of balancing is the wide discretion available to judges. Three contemporary criticisms are: it leads to a comparison of incommensurable values; it fails to create predictability in the legal system and is potentially dangerous for human rights; and it is equally intrusive from the perspective of separation of powers., Alexy proposes the weight formula, which quantifies competing values (rights of individuals) and interests (objectives of legislation or policy) by reducing them to numbers. W1·2 represents the concrete weight of principle P1 relative to the colliding principle P2. I1 stands for intensity of interference with P1; I2 stands for importance of satisfying the colliding principle P2. W1 and W2 stand for abstract weights of colliding principles (P1 and P2). When abstract weights are equal, as in the collision of constitutional rights (W1 and W2) they cancel each other out. R1 and R2 stand for reliability of empirical and normative assumptions regarding the intensity of the interpretation. The weight formula is reduced to numbers on an exponential scale of 2. The scale assigns the following values to intensity of interference (I) and abstract weights (W): light (l) = 1, moderate (m) = 2, serious (s) = 4. To reliability (R), the values assigned are reliable (r) = 1, plausible (p) = 0.5, and not evidently false (e) = 0.25., Three‑stage Proportionality: This model limits the proportionality enquiry to its first three prongs, omitting the balancing stage. Von Bernstorff argues against ad hoc balancing on two principal grounds: ad hoc balancing fails to erect stable and predictable standards of human rights protection, allowing intensive infringements of civil liberties to be balanced out of existence when the stakes are high; and the lack of predictability leads to a situation where every act of parliament is threatened. Canada prefers to resolve cases in the first three prongs. Only in limited instances does the Supreme Court of Canada decide that a measure survives the first three prongs but nevertheless fails at the final balancing stage. In the absence of the balancing stage, courts must be mindful of certain analytical weaknesses of the necessity stage that can be dealt with at the balancing stage. The core of the necessity test is whether an alternate measure is as effective in achieving the purpose as the measure under challenge, while being less restrictive. Considerations of balancing may become disguised in the necessity prong, as the court must confront uncertainty in weighing the efficacy of the alternatives., Some jurists and courts have suggested a strict interpretation of necessity, where an alternate measure is accepted as less restrictive only when it proves to be as effective as the measure under challenge. David Bilchitz has proposed that alternatives must have both characteristics: equal realisation of the purpose and lesser invasion of the right in question. He defends the use of judicially established bright‑line rules for specific cases where intensive interferences are at stake. Bright‑line rules bring clarity to a law or regulation that could be interpreted in multiple ways and constitute the core substance of a particular right, making human rights categorical instead of open‑ended., In Canada, the onus of proof is on the person seeking to justify the limit, generally the government. The standard of proof is the civil standard or balance of probabilities. Where scientific or social‑science evidence is available, it will be required; however, where such evidence is inconclusive or does not exist, reason and logic may suffice. The test was referenced in Anuradha Bhasin, which applied a moderate interpretation of the necessity test. To conclude the findings of the necessity stage, the Supreme Court of India suggests that an overall comparison be undertaken between the measure and its feasible alternatives., The means‑ends test is similar to a reasonableness inquiry, albeit with some variation. In Australia, courts enquire whether a law is reasonably appropriate and adapted to achieving a legitimate end in a manner compatible with the constitutionally prescribed system of representative and responsible government. The test was followed in Australia before the development of proportionality and is not frequently used in contemporary times. It is simplistic and gives limited judicial flexibility, not accounting for diverse factual scenarios., Calibrated Scrutiny (evolved means‑ends test): First, a judge determines the nature and intensity of the burden on the right by the challenged law. Second, the judge calibrates the appropriate level of scrutiny to the risk posed to the maintenance of the constitutionally prescribed system of representative and responsible government. Third, the judge isolates and assesses the importance of the constitutionally permissible purpose of the prohibition. Finally, the judge applies the appropriate level of scrutiny to determine whether the challenged law is justified as reasonably appropriate and adapted to achieve that purpose in a manner compatible with the maintenance of the constitutionally prescribed system of government. Critics have emphasized that this approach reduces flexibility required for factually diverse legal challenges., Strict Scrutiny Test: This is considered one of the heightened forms of judicial review used to evaluate the constitutionality of laws, regulations, or governmental policies under legal challenge. Strict scrutiny is employed in cases of violation of the most fundamental liberties guaranteed to citizens in the United States of America, such as infringements on free speech. The test places the burden on the government to show a compelling interest and that the law is either very narrowly tailored or is the least speech‑restrictive means available to the government. The usual presumption of constitutionality is removed, and the law must also pass the thresholds of both necessity and means., Unreasonableness / Wednesbury Principles: A standard of unreasonableness is used for judicial review of a public authority's decision. A decision is unreasonable (or irrational) when no reasonable person could have arrived at it. The test has two limbs: the court investigates whether the authority has considered matters it ought not to have considered or has failed to consider matters it ought to have considered; and if the authority has considered inappropriate matters, the conclusion may still be so unreasonable that no reasonable authority could have reached it., Please note that the above table briefly summarises the different standards of constitutional review and does not elaborate on the tests in detail; the theories propounded by jurists are not followed in toto across jurisdictions; and the table does not provide an exhaustive account of the full range of standards of review employed internationally.
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Criminal Appeal No. 282/2023 Dated this the 3rd day of August 2023. This is an appeal filed under Section 14A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Scheduled Castes and Scheduled Tribes Act for short), challenging the order dismissing CRMC No. 7/2023 by the Special Judge, Scheduled Castes and Scheduled Tribes Special Court, Ernakulam Sessions Court as per order dated 16 February 2023. The appellant is the sole accused in Crime No. 660/2022 of Ramamangalam Police Station, Palakkad, where the accused is alleged to have committed offences punishable under Sections 354A(1)(i), 506, 376(2)(n) of the Indian Penal Code and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes Act., Heard the learned counsel for the appellant as well as the learned Public Prosecutor. Though notice mandated under Section 15A(3) of the Scheduled Castes and Scheduled Tribes Act was issued to the de facto complainant with direction to appear before this Special Judge to submit her version, as mandated under Section 15A(5) of the Scheduled Castes and Scheduled Tribes Act, the de facto complainant did not appear., The case of the prosecution is that the accused, who does not belong to Scheduled Caste or Scheduled Tribe community, committed rape against the de facto complainant, who is a member of a Scheduled Caste community, at 1.30 p.m. on 18 November 2022 after giving some liquid to the de facto complainant at MGM Polytechnic Engineering College, Pambakkuda. The further allegation is that between 18 November 2022 and 7 December 2022, the accused threatened and committed rape against her on many occasions. This is the basis on which the prosecution alleges commission of offences punishable under Sections 354A(1)(i), 506, 376(2)(n) of the Indian Penal Code and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes Act., The learned counsel for the appellant submitted that the de facto complainant as well as the appellant while studying at MGM College generated a love affair and later the relationship was strained. At this juncture, the de facto complainant lodged a false complaint alleging commission of rape and therefore the entire allegations are false. In view of the matter, there is no reason to hold that there is a prima facie case in this matter and as such the appellant is entitled to get anticipatory bail and the bar under Sections 18 and 18A has no application in the present case., As I have already pointed out, the de facto complainant did not appear to submit her version., While opposing grant of anticipatory bail to the petitioner, the learned Public Prosecutor vehemently argued that even if there is a love affair between the de facto complainant and the appellant, the appellant gave a noxious liquid to the de facto complainant and made her semi‑conscious to avoid her resistance and thereafter she was subjected to sexual intercourse against her will and therefore, prima facie the allegations are well made out. In such a case, anticipatory bail cannot be granted, in view of the specific bar under Section 18A., The learned counsel for the appellant placed a decision of this Court reported in 2022 Kerala High Court 1001 : 2023 (2) Kerala High Court Supreme Court Notes 13 : 2022 Kerala High Court Online 1001 : 2022 LiveLaw (Ker) 650 : 2022 Kerala 71645 : 2023 (1) Kerala Law Tribunal Supreme Notes 27 : 2022 (6) Kerala Law Tribunal Online 1063, XXXX v. State of Kerala, wherein this Court considered the law regarding grant of anticipatory bail in cases involving offences under the Scheduled Castes and Scheduled Tribes Act in view of the bar under Sections 18 and 18A of the Scheduled Castes and Scheduled Tribes Act. This Court held, relying on the decision of the Apex Court reported in 2020 (2) Kerala High Court 423 : AIR 2020 Supreme Court 1036 : 2020 (4) Supreme Court 727, Prathvi Raj Chauhan v. Union of India & Ors., that in cases where there is no prima facie case, grant of anticipatory bail is not specifically barred and when there is a prima facie case, grant of anticipatory bail is specifically barred., The learned counsel for the appellant also pointed out that voluntary consent or consent under misconception of fact and false promise is not a fact within the meaning of the Indian Penal Code, replacing the same as misconception of fact. The decision of the Apex Court reported in 2003 Kerala High Court 943 : Supreme Court Criminal 775 : 2003 Criminal Law Journal 1539, Uday v. State of Karnataka, has been also pointed out in this regard. It is also pointed out by the learned counsel for the appellant that bail is the rule presuming innocence of the accused. In this connection, the learned counsel for the appellant placed a decision of the Apex Court reported in 2022 ICO 1029, Satender Kumar Antil v. Central Bureau of Investigation & Ors. Similarly it is argued by the learned counsel for the appellant that where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to engage in sexual relation is a misconception of fact that vitiates the woman's consent. On the other hand, a breach of promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The consent of a woman under Section 375 is vitiated on the ground of misconception of fact where such misconception was the basis for her choosing to engage in the said act. In this decision the Apex Court considered the decision in 2013 7 Supreme Court Cases 675, Deepak Gulati v. State of Haryana and observed as under:, There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage, a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused, on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently., In this decision the Apex Court held that in order to establish whether the consent was vitiated by a misconception of fact arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act., In so far as the law governing grant of anticipatory bail in cases involving offences under the Scheduled Castes and Scheduled Tribes Act, there is no doubt that Sections 18 and 18A are riders. But as rightly held by the Apex Court in Prathvi Raj Chauhan v. Union of India & Ors., when the prosecution materials would establish prima facie the offences alleged under the Act, anticipatory bail cannot be granted and in cases where the materials are prima facie insufficient to constitute an offence under the Scheduled Castes and Scheduled Tribes Act, anticipatory bail is liable to be granted., Going by the prosecution records, the case of the de facto complainant is that she was in a love affair with the accused, a senior student of MGM College. While so, at 1.30 p.m. on 18 November 2022, the accused called her on telephone and directed her to reach the library. When she reached the library, it was found that all friends were engaged in consumption of alcohol and use of tobacco substances. The de facto complainant was also asked to smoke and she refused to do so. Later, the accused forcefully gave a cake to the de facto complainant and gave a bottle of water. Then the de facto complainant felt that her eyesight was diminishing and she reached a semi‑conscious stage. Thereafter, the accused brought her to the second or third floor of the college and subjected her to rape. Later, the accused continued telephone calls as usual. The de facto complainant demanded the accused to reach the room of the accused on 30 December 2022 and the accused did not obey the same; the accused refrained from continuing their love relationship. In this matter, a First Information Report was recorded on 30 December 2022 and crime was registered alleging commission of the offences., In this case, the learned counsel for the appellant placed a compact disc containing the telephonic conversation between the de facto complainant and the accused during the relevant period and also produced the extract of the same to appraise that a cordial relationship between them had been ruined by the de facto complainant raising false allegations against the accused and foisting this case., Going by the telephonic conversations also, though a cordial relationship could be seen, the occurrence as narrated by the de facto complainant in the matter of sexual abuse could be foreseen., In this case the specific case of the de facto complainant is that she was subjected to rape after giving her a cake and a bottle of water by the accused and later she felt that her eyesight was diminishing and when she was at a semi‑conscious stage. In such a case, it cannot be held that the overt act alleged by the de facto complainant arose out of consent. Therefore, the prosecution allegations are well made out prima facie and as such anticipatory bail cannot be granted in view of the specific bar under Sections 18 and 18A of the Scheduled Castes and Scheduled Tribes Act. The learned Special Judge rightly appreciated the materials and found that the appellant did not deserve anticipatory bail and the impugned order does not require interference in view of the above discussions., Therefore, the appeal must fail and is accordingly dismissed.
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The petitioner is the first accused in Crime No. 6 of 2022 of the Crime Branch Police Station (hereinafter referred to as Crime No. 6 of 2022). This Criminal Miscellaneous Case No. 1106 of 2022 is filed for quashing all further proceedings pursuant to the FIR registered in the said case, which is produced as Annexure‑9. The crime is registered against him and four others, alleging offences punishable under Sections 506, 116, 118, 120B read with Section 34 of the Indian Penal Code., The allegation against the petitioner and the other accused is that on 15 November 2017 they threatened and hatched a criminal conspiracy to do away with Smt. B. Sandhya, the then Director General of Police (Fire & Rescue), Sri A. V. George, the then Inspector General of Police, Sri K. S. Sudharsan and Sri M. J. Sojan, both presently serving as Superintendents of Police, and the third respondent in this Criminal Miscellaneous Case, who is a Deputy Superintendent of Police (Crime Branch). The alleged motive is that in an earlier criminal prosecution the investigation was conducted by a Special Investigation Team consisting of the above persons, and the petitioner was implicated as one of the accused., Before addressing the facts of Crime No. 6 of 2022, it is necessary to recount the facts that led to the registration of the previous crime, numbered as 297 of 2017 of Nedumbassery Police Station. The trial of that case is pending as Special Court No. 118 of 2018 before the Additional Special Judge (SPE/CBI Court‑III), Ernakulam. On 17 February 2017 a well‑known Malayalam film actress was subjected to sexual assault and verbal threats in a moving vehicle; the assaults were captured on camera by the assailants with the intention to blackmail her. In connection with the incident FIR No. 297 of 2017 was registered by Nedumbassery Police Station for offences punishable under Sections 120B, 342, 366, 376D, 506(1), 201, 212 and 34 of the Indian Penal Code. After investigation, Annexure‑I final report was submitted by the police on 18 May 2017 against seven accused persons. The report was based on an investigation conducted by the Special Team under the direct supervision of Smt B. Sandhya, then Additional Director General of Police (South Zone), and included six officers of the rank of Deputy Superintendent of Police and many junior officers, including the third respondent. Subsequently, based on additional evidence gathered by the Special Investigation Team, the petitioner was implicated as the eighth accused, and a supplementary final report was submitted on 22 November 2017., The allegation against the petitioner was that the act of sexual assault was committed by the other accused on the petitioner’s instructions, motivated by a personal grudge because the petitioner believed the victim was instrumental in the termination of his marriage with his first wife. The petitioner was allegedly under the impression that the victim had disclosed to his first wife the petitioner’s relationship with another person. In connection with the investigation, the petitioner was arrested and detained in custody for a period of 84 days. The case is pending trial; all witnesses cited by the prosecution except the investigation officer, who is the third respondent, have been examined. The examination of the third respondent is yet to take place., On 25 December 2021, Balachandra Kumar, a director in the Malayalam film industry, made certain revelations through a Malayalam news channel regarding acts of the petitioner in connection with Crime No. 297 of 2017 and disclosed discussions indicating a criminal conspiracy against the investigation team. The revelations were based on audio clips containing conversations of the petitioner and the other accused. Balachandra Kumar also forwarded a complaint to Nedumbassery Police Station, the contents of which were the same as a complaint he had originally submitted to the Honourable Chief Minister of the State about a month earlier, seeking protection because he apprehended a threat from the petitioner who was aware of the materials that could be used as evidence of the petitioner’s complicity in Crime No. 297 of 2017. The complaint was forwarded to the third respondent, who was the Investigation Officer of Crime No. 297 of 2017, as ordered by the District Police Chief., Based on those revelations, a report for further investigation in Crime No. 297 of 2017, which remains pending as Special Court No. 118 of 2018, was submitted before the trial court by the third respondent (Annexure‑6). As part of the further investigation, statements of Balachandra Kumar were recorded on 1 January 2022 and 3 January 2022 (Annexures 11 and 12). The third respondent submitted a complaint to the Additional Director General of Police, Crime Branch Headquarters, Thiruvananthapuram, highlighting the aspects. The complaint stated that the statements and audio clips indicated criminal conspiracy and criminal intimidation by the petitioner and four others to do away with Smt B. Sandhya, DGP; Sri A. V. George, Inspector General of Police; Sri K. S. Sudharsan, Superintendent of Police; Sri M. J. Sojan, Superintendent of Police; and the third respondent. The complaint was forwarded by the ADGP Crime Branch to the Superintendent of Police (Crime Branch‑Ernakulam) for registration of the crime and investigation. Annexure‑10 is the complaint submitted by the third respondent with the endorsement of the ADGP., Consequently, Annexure‑9 FIR was registered as Crime No. 6 of 2022 on 9 January 2022 for offences punishable under Sections 116, 118, 120B and 506 read with Section 34 of the Indian Penal Code. On 14 January 2022 a further report was submitted by the police incorporating Section 120B of Section 302. The investigation by the second respondent (the police) is now in progress. The other accused in the crime are Sri Anoop (the petitioner’s brother), Sri T. N. Suraj, Appu, Baiju B. R. (Baiju Chengamanad) and one unidentified person., All the named accused persons had earlier moved applications for anticipatory bail before the Kerala High Court, and as per Annexure‑18 order, all of them were granted pre‑arrest bail., The petitioner files this Criminal Miscellaneous Case praying for quashing all further proceedings pursuant to Annexure‑9 FIR. The petitioner contends that the registration of the FIR violated Section 154 of the Code of Criminal Procedure because it does not disclose any cognizable offence. Even assuming the allegations in the FIR are taken at face value, no offences are made out. The petitioner further alleges that the registration of the case is part of a larger conspiracy at the instance of the third and fifth respondents to create false evidence against the petitioner in Crime No. 297 of 2017. With the assistance of Balachandra Kumar, a false story was created, and the registration of this crime is part of that design. An alternate prayer seeks that, if the court is not inclined to quash the FIR, the investigation be handed over to a specialized agency, namely the Central Bureau of Investigation, which is the eighth respondent. The petitioner argues that the investigation is proceeding in a biased manner because the allegation involves a threat against senior police officers who head the Home Department, and therefore the investigation is likely to be influenced by those superior officers., The petitioner further averred that prior to the registration of Annexure‑9 FIR, the third respondent personally met Balachandra Kumar on three occasions (2 October 2021, 6 November 2021 and 27 December 2021). Immediately after a report for further investigation in Crime No. 297 of 2017 was submitted, the Special Investigation Team was re‑constituted by including the fifth respondent, who is the Additional Director General of Police (Crime Branch). The petitioner claims that Balachandra Kumar and the fifth respondent have a close acquaintance, as evidenced by WhatsApp communications produced as Annexure‑17, which show that Balachandra Kumar recommended to Nadhirshah, a director of Malayalam movies, to give a chance to a young singer closely related to the fifth respondent. Annexure‑17 also refers to the name of the fifth respondent and reveals his relationship with the family of the person recommended. Documents in the Annexure‑15 series were also relied upon to indicate disciplinary proceedings and adverse remarks against the fifth respondent in other cases. On the strength of these materials, the petitioner contends that the investigation being conducted by the second respondent, who is directly subordinate to the fifth respondent and some of the victims, is likely to be influenced, and therefore no proper investigation can be expected. The alternate prayer for changing the investigating agency was sought on these grounds., The second respondent submitted a statement denying the petitioner’s averments and alleging that the Criminal Miscellaneous Case was filed with false allegations to interfere with the ongoing investigation. The second respondent explained the circumstances under which Annexure‑9 FIR was registered by the Crime Branch. Balachandra Kumar had submitted a complaint on 25 November 2021 to the Honourable Chief Minister of Kerala seeking protection from the petitioner. The complaint revealed incriminating material against the petitioner in connection with Crime No. 297 of 2017. When no response was received, Balachandra Kumar made the revelations through visual media on 25 December 2021, stating that he possessed evidence of the petitioner’s role in Crime No. 297 of 2017 and his relationship with the first accused in that crime. The link of the program was forwarded to him by the survivor of Crime No. 297 of 2017. A complaint was later submitted to the Station House Officer, Nedumbassery Police Station, on 28 December 2021, which was forwarded to the third respondent. Based on the revelation, a report for further investigation in Crime No. 297 of 2017 was submitted by the third respondent and investigation commenced. Statements of Balachandra Kumar were recorded on 1 January 2022 and 3 January 2022, and he handed over the audio clips to the police. From the complaint and statements, a criminal conspiracy by the petitioner and the other accused to cause harm to members of the Special Investigation Team was uncovered. Consequently, Annexure‑10 report/complaint was submitted by the third respondent to the ADGP (Crimes), the fifth respondent, seeking necessary action. Since Annexure‑10 revealed cognizable offences, the ADGP (Crimes) directed the registration of the crime by the Crime Branch Police Station. The second respondent asserted that no circumstances exist warranting interference with Annexure‑9 FIR because cognizable offences are made out from the allegations, the investigation is in progress and is being conducted in an unbiased manner without external influence. The second respondent also alleged that the petitioner approached the court with unclean hands, citing attempts by the petitioner and the other accused to delete data from mobile phones used during the relevant period. On 29 January 2022, this Court, in B.A. Nos. 248, 288 and 300 of 2022, directed the accused to produce seven mobile phones in a sealed box before the Registrar General by 10.15 a.m. on 31 January 2022. Six phones were produced and subjected to forensic examination (Annexure R2(e)), which found that certain data had been deleted, apparently after the court order and before surrender. The second respondent highlighted this as a conscious attempt by the accused to tamper with evidence, indicating that the petitioner did not come with clean hands. Regarding the allegations against the fifth respondent based on Annexure‑15 series, the second respondent pointed out that those proceedings are unrelated to the present dispute and were closed without serious consequences. The second respondent also opposed the prayer for transfer of investigation to the eighth respondent, stating that no circumstances warrant such transfer., The petitioner replied, denying the averments contained in the second respondent’s statement, specifically denying the allegations of tampering with mobile phone data and explaining the circumstances under which the phones were entrusted to M/s Lab Systems India Pvt. Ltd. for data restoration., The hearing was conducted before Sri Siddharth Aggarwal, the learned Senior Counsel for the petitioner, assisted by Sri Philip T. Varghese, the learned counsel for the petitioner, and Sri T. A. Shaji, the learned Senior Counsel and Director General of Prosecution, assisted by Sri P. Narayanan, the Additional Public Prosecutor for the State, and Sri Manu S., the Assistant Solicitor General of India for the Central Bureau of Investigation., The learned Senior Counsel for the petitioner reiterated the contentions raised in the Criminal Miscellaneous Case with support of several judicial precedents. The learned Director General of Prosecution replied in detail and cited many decisions in support. The first contention raised by the petitioner is that the registration of Annexure‑9 FIR violates Section 154 of the Code of Criminal Procedure because Annexure‑9 does not make out any cognizable offence, rendering the FIR illegal. The petitioner points out that Annexure‑9 FIR was registered on 9 January 2022 for offences punishable under Sections 116, 118, 120B and 506 read with Section 34 of the Indian Penal Code, and on 14 January 2022 a report incorporated the offence of Section 120B of Section 302 IPC. The petitioner argues that none of these offences are attracted from the averments contained in Annexure‑9., The requirements specified in Section 154 of the Code of Criminal Procedure for registering an FIR were examined. Section 154(1) provides that every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing, read over to the informant, signed by the informant, and entered in a book kept by the officer., The learned Senior Counsel relied upon State of West Bengal and Others v. Sanchaita Investments and Others (1982) 1 SCC 561, wherein it was observed that the condition precedent to the commencement of investigation under Section 157 is that the FIR must disclose, prima facie, that a cognizable offence has been committed. The police do not have unfettered discretion to commence investigation; their right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence. If the FIR does not disclose such commission, the court would be justified in quashing the investigation., It is noted that Section 154 requires that the information provided to the police reveal the commission of a cognizable offence; the essential requirement for registration of an FIR and initiation of investigation is the disclosure of ‘information’ which indicates the commission of a cognizable offence. What is relevant is the information furnished by the informant, not the materials available at the time of registration. The FIR is not required to contain all details of the crime; supporting materials may be revealed during investigation. Therefore, to determine whether an FIR discloses a cognizable offence, only the information furnished by the first informant is relevant., The contents of Annexure‑9 FIR were considered from that perspective. The relevant portion of Annexure‑9 is extracted for reference. The information recorded in the FIR is based on the complaint submitted by the third respondent and the statements recorded by the third respondent as part of further investigation of Crime No. 297 of 2017 (Annexures 11 and 12). Although most of the contents relate to Crime No. 297 of 2017, the statements also reveal certain aspects relating to the present case., The petitioner contended that the statements are merely utterances made by the petitioner while at his residence, and there are no materials indicating any further steps taken. In the absence of such steps, no offences are attracted. Even if the petitioner harboured a grudge against the police officers, that alone is insufficient to prosecute for the offences alleged; there must be materials indicating a specific design to do away with or cause harm to the police officers., While considering these contentions, it is noted that some of the crucial offences incorporated in Annexure‑9 are under Sections 116 and 118 of the Indian Penal Code, which relate to abetment of offences, including offences punishable with death or imprisonment for life. The offence of abetment is defined under Section 107 of the Indian Penal Code, which states that a person abets the doing of a thing who (i) first instigates any person to do that thing; (ii) engages with one or more other persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy; or (iii) intentionally aids, by any act or illegal omission, the doing of that thing. In this case, the second clause is relevant; an act or illegal omission must take place in pursuance of the conspiracy for the offence of abetment by conspiracy to be attracted., The distinction between abetment and criminal conspiracy was explained in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar [AIR 1962 SC 876]. The judgment clarifies that for abetment by conspiracy, there must be a combination of two or more persons in the conspiracy and an act or illegal omission in pursuance of that conspiracy. Mere agreement or conspiracy without an act or omission does not amount to abetment. Section 120A defines criminal conspiracy as an agreement between two or more persons to do or cause to be done an illegal act, and the agreement itself constitutes the offence. Thus, for abetment, a positive act or illegal omission in furtherance of the conspiracy is essential, whereas for criminal conspiracy the agreement alone is sufficient., Applying this principle to the present case, the contents of Annexure‑9 do not show any positive act or illegal omission in pursuance of a conspiracy; they merely mention a design or agreement without any consequent action or omission. Consequently, the offences under Sections 116 and 118, which are forms of abetment, are not made out.
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