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id_1360	0	In this appeal, the challenge is to the judgment and decree dated 07 December 2020 passed by the Family Court at Akola whereby the learned Judge of the Family Court, Akola rejected the decree for divorce as prayed by the appellant and granted a decree for judicial separation for a period of one year., The respondent and the appellant were married on 04 July 2014 at Akola. After marriage they stayed at Panjim because the appellant was then working in the Panjim Goa Bench of the Bombay High Court. They started their married life blissfully, but later discord developed. According to the appellant, the respondent was aggressive, spoke utter lies, had extreme affinity towards her parents and their residence at Akola, and quarrelled with the appellant on petty matters. She expressed discomfort at Panjim due to the distance from Akola and insisted that the appellant leave his job and shift to Akola with her for a new assignment. The respondent was under the total influence of her dominating mother and followed her mother’s instructions. The appellant’s job was a permanent position in the High Court, and he did not agree to quit, which the appellant states was the trigger point for escalating the conflict., After marriage the appellant and the respondent stayed at Panjim until 28 August 2014. They celebrated their honeymoon between 15 August 2014 and 18 August 2014. From 28 August 2014 to 08 September 2014 the respondent resided at Aurangabad for the Ganpati and Mahalaxmi festivals. From 10 September 2014 to 18 October 2014 the respondent resided at Akola. She came to Aurangabad on 19 October 2014 for Diwali, and the appellant joined her there. After Diwali, the respondent went to Akola with her brother from 02 November 2014 to 09 December 2014. Between 13 December 2014 and 22 December 2014 the entire family of the appellant went on a trip to South India. After returning, from 22 December 2014 to 09 April 2015 the respondent resided with the appellant at Panjim. During this four‑month period the respondent forcefully insisted that the appellant leave his job at Panjim and shift to Akola, causing him mental pain and agony. She opposed the idea of motherhood and her cantankerous behaviour fed up the appellant, who made it clear that he would not resign or settle at Akola., On 09 April 2015, the respondent, under the pretext of appearing for a competitive examination, left the appellant’s house, taking all gold ornaments given by the appellant at the marriage. The appellant tried his best to convince her to return, but she did not heed his request. On the night of 31 October 2015 the respondent arrived in Panjim with her father. After a sudden quarrel, the appellant realised that the respondent had come not to stay but to pack her clothes, goods and articles and leave his house permanently. She left in the middle of the night despite the appellant’s folded‑hand request that she desist., The appellant called two colleagues to assist the respondent and her father who were walking on the street at night, and tried to pacify them. The respondent abused him in filthy language and left the house. On 02 December 2015 the appellant learned that she had lodged a report at Panjim Police Station. He went to the police station, and with police intervention the matter was settled and the complaint was withdrawn. The appellant alleges that the respondent has filed a number of complaints and cases against him, causing unbearable harassment and mental cruelty. She has made a complaint before the Member of the Women Commission; an application under Section 125 of the Code of Criminal Procedure, 1973 before the Family Court at Akola; an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 before the Judicial Magistrate First Class; and lodged reports at Khadan Police Station, Akola under Sections 498‑A, 506 and 323 of the Indian Penal Code. She also made reports to various authorities of the Bombay High Court and to the Superintendent of Police, Akola., The appellant initially prayed for a decree of judicial separation on the ground of mental cruelty and harassment, but during the pendency of the petition he amended the petition and prayed for a decree of divorce on the ground of harassment and mental cruelty as provided under Section 13(1)(i‑a) of the Hindu Marriage Act. The respondent filed a written statement denying the material facts pleaded in the petition, categorically denying that she insisted the appellant leave his job and settle at Akola, and alleging that the appellant and his parents made dowry demands and ill‑treated her. She claimed that she was forced to do all household work, was sometimes beaten and tortured, and was not given meals, leading to weakness. She asserted that the complaints she made were genuine and that she had suffered severe mental cruelty at the hands of the appellant., In the Family Court at Akola both parties adduced evidence. The appellant examined himself and one independent witness; the respondent examined herself as the sole witness. Both parties produced documentary evidence. The learned Judge of the Family Court, after appreciating the evidence, concluded that the case was not made out for a decree of divorce and that a decree for judicial separation was the appropriate relief. Dissatisfied with this judgment, the appellant appealed before the Supreme Court of India, contending that the learned Judge recorded a finding of cruelty but refused to grant divorce for unacceptable reasons., The learned Advocate for the appellant submitted that the appellant had proved, on the basis of cogent oral and documentary evidence, that the respondent had made his life miserable without any fault on his part. He argued that the learned Judge recorded a finding of mental cruelty in paragraph 32 of the judgment but denied divorce without a justifiable reason. The Advocate highlighted that the respondent had made unfounded and unsupported allegations against the appellant and his family, and that she had uploaded her matrimonial profile on BharatMatrimony.com and Shaadi.com, indicating her intention to obtain a second marriage. The Advocate submitted that these documents, produced as Exhibit 69 on 22 October 2020, fall within Section 14 of the Family Courts Act, 1984, which allows the Family Court to admit any report, statement or document necessary for effective resolution of the dispute., The appellate court noted that, under Section 14 of the Family Courts Act, 1984, the Family Court may receive as evidence any document even if it would otherwise be inadmissible under the Indian Evidence Act, 1872. Accordingly, the documents uploaded by the respondent on the matrimonial websites were admissible and could be considered in deciding the appeal., The matrimonial profile showed that, even before the decision in the divorce petition, the respondent had made up her mind to perform a second marriage, stating that she was awaiting divorce in the pending case. This conduct was inconsistent with her written statement, in which she claimed to be an obedient wife and daughter‑in‑law who performed her duties sincerely. The appellate court considered this inconsistency indicative of the respondent’s lack of desire to preserve the marriage., The appellant’s evidence reiterated the facts pleaded in the petition, describing the mental pain, stress, depression and agony he suffered due to the respondent’s false and frivolous complaints. He stated that the respondent was never happy to stay with him at Panjim, insisted that he quit his secured job and shift to Akola, and that there was no dowry demand as the parties were financially well‑off. He disclosed that his father had retired from United News of India, his mother served as an Assistant Registrar in the Bombay High Court, Aurangabad, and that the family owned a three‑storeyed building in Aurangabad. He also mentioned his transfer from Panjim to Aurangabad., The appellant examined an independent witness, Shri Ashwin Sharma, who corroborated the incident of 31 October 2015, confirming that despite the appellant’s repeated humble requests, the respondent and her father left the house in the night after packing their luggage. The father of the respondent was not examined, and the respondent’s version that the appellant drove her out of the house was not substantiated., The learned Judge of the Family Court listed all the complaints and reports made by the respondent, including a complaint to the Member of the Women Commission (later withdrawn), a report at Panjim Police Station on 01 December 2015 (withdrawn on 02 December 2015), an application under Section 125 of the Code of Criminal Procedure before the Family Court at Akola, an application under Section 12 of the Protection of Women from Domestic Violence Act before the Judicial Magistrate First Class, Akola, and FIRs lodged at Khadan Police Station on 24 November 2015 and 14 June 2016 under Sections 498‑A, 506 and 323 of the Indian Penal Code. The Magistrate, in Miscellaneous Criminal Application No. 1935 of 2015 dated 12 April 2019, held that the allegations were without substance and dismissed the case., The appellate court held that the learned Judge of the Family Court should have taken into consideration the documentary evidence, including the matrimonial profile, and that the finding of cruelty was not of a nature that would make it impossible for the husband to live with the wife. However, the evidence indicated that the respondent had no wish to remain with the appellant and had consciously decided to seek a second marriage before the final outcome of the divorce petition. Consequently, the appellate court concluded that the respondent’s conduct amounted to mental cruelty sufficient to grant a decree of divorce., The court, having considered the legal position laid down by the Honorable Supreme Court of India in cases such as Dr. (Mrs.) Malathi Ravi v. Dr. B. V. Ravi (2014) SCC 640, Vishwanath v. Sarla Vishwanath Agrawal (Civil Appeal No. 4905 of 2020), and V. Bhagat v. Mrs. D. Bhagat (AIR 1994 SC 710), held that false allegations and conduct that inflict mental pain and suffering making cohabitation impossible constitute mental cruelty under Section 13(1)(i‑a) of the Hindu Marriage Act. The evidence on record proved that the respondent inflicted mental pain and suffering that would likely injure the health of the appellant., In view of the foregoing findings, the appeal is allowed. The decree of judicial separation dated 07 December 2020 is set aside and a decree of divorce is granted to the appellant on the ground of mental cruelty and harassment under Section 13(1)(i‑a) of the Hindu Marriage Act.
id_1360	1	In our view, therefore, the proposition of law laid down in the judgments (supra) squarely applies to the facts of the case of the appellant. It is further pertinent to note that the conduct of the respondent to perform the second marriage and not to lead the life with the appellant is writ large from the fact that she did not apply for restitution of conjugal rights. In the facts and circumstances we are of the opinion that the view taken by the learned Judge of the Family Court denying the decree of divorce for the reasons recorded in the judgment cannot be sustained. In our opinion, the appellant on the basis of cogent and concrete evidence has made out the case that he was made to suffer mental cruelty of a high degree and therefore, he took a conscious decision to get separated from the respondent. Accordingly, we conclude that he has proved that he is entitled to divorce on the ground of the mental cruelty meted out to him by the respondent. As such we record our findings on point number one in the affirmative. As far as point number two is concerned, we conclude that the judgment of the Family Court cannot be sustained. Hence, the following order: The family court appeal is allowed. The judgment and decree, passed by the Family Court at Akola, dated 07.12.2020, rejecting the prayer for granting divorce, is set aside. The Hindu Marriage Petition filed by the appellant is allowed. It is declared that the marriage between the appellant and the respondent is dissolved by decree of divorce on the ground of cruelty. In view of the decree for divorce the order granting decree for judicial separation does not survive. The decree be drawn up accordingly. Parties to bear their own costs.
id_1362	0	(CNR No. MHCC02-008469-2020) Rhea Chakraborty, daughter of Indrajit Chakraborty, age 28 years, actress, resident of 101 Primrose Apartments, Near Ajivasan Hall, Next to SNDT College, Juhu Road, Santacruz (West), Mumbai-400049. Applicant/Accused: The Union of India (through the Intelligence Officer, Narcotics Control Bureau, Mumbai, Zonal Unit, Mumbai) Respondent. Appearance: Learned Advocate Mr. Satish Maneshinde for applicant/accused. Learned Senior Public Prosecutor Mr. Sarpande for Narcotics Control Bureau., This is an application for bail by accused Rhea Chakraborty in File No. NCB/MZU/CR-16/2020 under section 439 of the Code of Criminal Procedure, 1973. Facts in brief are as follows., On 28 August 2020, a team of the Narcotics Control Bureau, Mumbai and Narcotics Control Bureau Headquarters, New Delhi apprehended Abbas Ramzan Ali Lakhani along with 46 grams of marijuana/ganja. Abbas stated that he had purchased the drug from Karn Arora. Accordingly, the Narcotics Control Bureau team apprehended Karn Arora and seized 13 grams of ganja from him. A panchanama was prepared. Thus a total of 59 grams of ganja was recovered and both the accused were arrested., Based on disclosures by accused Abbas and Karn, the Narcotics Control Bureau team searched the premises of accused Zaid Vilatra and seized Rs 9,55,750 and foreign currency comprising 2,081 US dollars, 180 UK pounds and 15 UAE dirhams under panchanama. Accused Zaid Vilatra was brought to the Narcotics Control Bureau office. His statement was recorded and he stated that the seized amount is the sale proceeds of contraband. He had supplied marijuana/ganja/bud psychotropic substances to many persons and disclosed a few names with their details., Accused Zaid Vilatra disclosed the name of accused Abdel Basit Parihar, receiver of ganja/marijuana. During the statement Abdel Basit Parihar revealed that he purchases and sells marijuana/ganja through accused Zaid and Kaizan. He obtained drugs from accused Zaid and accused Kaizan Ebrahim as per instructions of accused Showik Chakraborty. Abdel Basit Parihar also disclosed that he facilitated the arrangement of drugs and was in contact with accused Samuel Miranda and accused Showik Chakraborty. He used to pay and receive money of contraband via credit cards, cash and payment gateways., Accordingly, accused Mohd. Kaizan Ebrahim was interrogated by the Narcotics Control Bureau team and he disclosed the name of accused Anuj Keshwani as supplier of ganja/marijuana. His statement was recorded. Accused Keshwani dealt in the purchase and sale of ganja, charas and LSD. He procured drugs from Rigel Mahakala with intent to sell to accused Kaizan Ebrahim and was in contact with accused Kaizan Ebrahim., On the basis of the statement of accused Keshwani, the Narcotics Control Bureau team seized the following from his possession: (i) Charas – 585 grams; (ii) Ganja – 270.12 grams (in the form of buds, pre‑rolled joints, Indian weed); (iii) THC – 3.6 grams; (iv) LSD – 0.62 grams (commercial quantity is 0.01 gram, and 0.64 gram was recovered, which is much more than commercial quantity); (v) Cash – Rs 1,85,200 (Rupees One lakh eighty‑five thousand two hundred)., The prosecution case further reveals that, during the statement, accused Showik Chakraborty disclosed that he used to facilitate the delivery of drugs through accused Abdel Basit Parihar, accused Kaizan Ebrahim and accused Zaid. These deliveries were received with the aid of the late Sushant Singh Rajput and every delivery and payment was known to accused Rhea Chakraborty, and sometimes the choice of drug and payment was confirmed by accused Rhea Chakraborty., Accused Samuel Miranda and accused Dipesh Sawant were staff members of the late Sushant Singh Rajput. During the statement, accused Samuel Miranda disclosed that he procured drugs on the direction of Sushant Singh Rajput and accused Rhea Chakraborty and that the financial matters in this regard were being dealt with by accused Rhea Chakraborty and the late Sushant Singh Rajput. Accused Dipesh Sawant disclosed that he received drugs for Sushant Singh Rajput on his directions and on several occasions accused Rhea Chakraborty also instructed him. Furthermore, the financial issues for purchase of drugs were also being dealt with by the late Sushant Singh Rajput and accused Rhea Chakraborty. Thus, accused Dipesh Sawant and accused Samuel Miranda received drugs for the consumption of Sushant Singh Rajput., Based on the disclosures of accused Showik Chakraborty, accused Samuel Miranda and accused Dipesh Sawant, accused Rhea Chakraborty was summoned and her statement was recorded on 6 September 2020, 7 September 2020 and 8 September 2020. During her statements on all three days she was confronted with all accused persons and the facts in their statements were verified. Accused Rhea Chakraborty acknowledged their statements and explained her role. She revealed her involvement in procuring drugs, financial transactions and her instructions to accused Samuel Miranda, accused Dipesh Sawant and accused Showik Chakraborty. Thus, all accused were active in a drug syndicate connected with drug supplies and procured drugs for Sushant Singh Rajput for consumption., Accordingly, the crime under section 8(c) read with sections 20(b)(ii)(A), 22, 27(A), 28, 29 and 30 of the Narcotic Drugs and Psychotropic Substances Act is registered and now the crime is under investigation., Learned Advocate Mr. Satish Maneshinde, representing the applicant/accused, submitted that the accused is an actor and model by profession. The accused has been a video‑jockey on MTV India and thereafter appeared in Bollywood films such as Mere Dad Ki Maruti, Sonali Cable, Half Girlfriend and Jalebi. The accused is a well‑respected member of society. The accused is innocent and has not committed any crime. She is falsely implicated in the case. No narcotic drug or psychotropic substance has been seized from the accused. In this case only 59 grams of ganja was recovered and the quantity is a smaller quantity. The prosecution agency has incorrectly applied section 27‑A of the Narcotic Drugs and Psychotropic Substances Act; in view of the bar, the accused should be released on bail under section 37 of the Narcotic Drugs and Psychotropic Substances Act. Thus section 27‑A is mechanically and without application of mind applied. The entire record does not show that the accused is in any way involved with financing of illicit traffic of drug. There are no allegations against the accused of harbouring offenders as mentioned under section 27(A). The only allegation is that she procured drug for her late boyfriend Sushant Singh Rajput in the remand application dated 8/9/2020. The accused had never managed finance for drug procurement along with the late Sushant Singh Rajput. Thus, it cannot be said that the accused is an active member of a drug syndicate connected with drug supplies., The learned advocate further submitted that the Narcotics Control Bureau is silent as to the amount of finance, quantum of drug and type of drug allegedly procured and financed by the accused. If the allegations are taken as they are, it would reveal that the accused would coordinate the delivery of drug for herself and then her boyfriend. Her alleged role, if any, is purchase of a smaller quantity of drug for her boyfriend and therefore the accused is entitled to bail., He further submitted that similar allegations were made against co‑accused Kaizan Ebrahim. However, the Narcotics Control Bureau has not applied section 27(A) of the Narcotic Drugs and Psychotropic Substances Act to accused Kaizan Ebrahim and he was released on bail. The accused was interrogated by the Narcotics Control Bureau on 6, 7 and 8 September 2020. No lady officer was present at that time. The statement of the accused was recorded in the presence of a police officer. Thus, the statement is hit by the provisions of section 25 of the Evidence Act. According to him, if the entire evidence is examined, the prosecution shows that only Rs 12,000 has passed from her through credit cards, alleging that the amount was used for financing of drug. Merely sale and purchase of drug does not amount to illicit traffic. There are no allegations of harbouring offenders against the accused. The statement of the accused cannot be considered as it stands. The accused had filed a retraction before the Learned Metropolitan Magistrate, Mumbai. Therefore, it cannot be said that the accused is involved in the present crime. According to him, the Honourable Supreme Court in a number of cases has ruled that if custodial interrogation is not necessary then bail should be granted and refusal of bail would amount to pre‑conviction of the accused., The learned advocate further submitted that the accused is a permanent resident of the given address and she is ready to abide by the conditions imposed by the Court. Her antecedents are clear. Hence, he prayed to release the accused on bail. In support of his contention he relied on: (a) Stefan Mueller v. State of Maharashtra 2010 (112(7)) BomLR 2990; (b) S. Sohil v. S. Samir v. State of Maharashtra, Criminal Bail Application No. 811 of 2018; (c) Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694; (d) Pawan Kumar @ Monu Mittal v. State of Uttar Pradesh (Supreme Court) 2015 (3) SCC (Cr) 27; (e) K. K. Ashraf v. State of Kerala, Bail Application No. 5251/2009; MANU/KE/1166/2009; (f) Raju Premji v. Customs NER Shillong Unit (Supreme Court) 2009 (16) SCC 496., As against this, Learned Senior Public Prosecutor Mr. Sarpande for the Narcotics Control Bureau/Union of India submitted that all the contentions raised by the accused are frivolous and false. The accused is charged under section 37‑A read with section 29 of the Narcotic Drugs and Psychotropic Substances Act. The punishment prescribed for the offence punishable under section 27‑A is not less than ten years and may extend to twenty years. Thus, the offence is non‑bailable. He acknowledged that an initial smaller quantity of ganja was seized from accused Abbas Lakhani and Karn Arora. However, the investigation trail went up to accused Anuj Keshwani and the Narcotics Control Bureau officers seized charas, ganja and LSD from his possession. The quantity of LSD is commercial. To substantiate the charge under section 27‑A, no particular quantity of drug is required; the prosecution has to show that the accused has illegally financed drug trafficking. He stated that there is ample evidence on record to show that the accused is involved in illicit trafficking of drug. He invited attention to the remand paper as well as the statement of the accused. According to him, the accused has specifically admitted her role in the present crime. Narcotics Control Bureau officers have seized mobile phones and a laptop of the accused persons and there is prima facie evidence that the accused has committed the offence as charged. He admitted that no contraband was seized from the accused, however, the role of the accused is that she illegally financed drug trafficking., The learned Senior Public Prosecutor further submitted that if the entire record is examined carefully, there is prima facie evidence that the accused is guilty of the offence as charged. Thus, there is a bar to release the accused on bail under section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985. He further submitted that the investigation is at a preliminary stage; if the accused is released on bail she will alert other persons involved in the crime. He prayed to reject the application., As per section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 every offence under this Act is cognizable and non‑bailable. Sub‑section (i)(a) reads that notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence punishable under this Act shall be cognizable. The scheme of the Act shows that for some offences punishment up to one year is prescribed, for some offences punishment up to three years is prescribed. In Stefan Mueller v. State of Maharashtra 2010 (112(7)), the Honourable Bombay High Court ruled that under section 37(1)(b) of the Narcotic Drugs and Psychotropic Substances Act, additional conditions or limitations are applicable only to specified offences in that section. The offences under section 20(b)(ii)(a) and section 27 are not such offences and therefore the conditions or limitations in section 37(1)(b) are not applicable to them and they are bailable offences under the Code of Criminal Procedure. No conditions can be imposed except appearance before a Court at a particular place or on a particular date. Consequently, a condition not to travel abroad without permission of the Court is also not permissible for these offences., The accused has submitted that no contraband was seized from her possession and the allegation is that she procured drug for the late Sushant Singh Rajput. The quantity of the said drug (ganja) is small and at most the accused can be convicted for one year and thus the offence is bailable., However, according to the prosecution the accused is involved in illicit trafficking of drug. She has financed drug for the late Sushant Singh Rajput and therefore she has committed an offence punishable under section 27‑A of the Narcotic Drugs and Psychotropic Substances Act., According to section 27‑A of the Narcotic Drugs and Psychotropic Substances Act, whoever indulges in financing, directly or indirectly, any of the activities specified in sub‑clauses (i) to (v) or clause (viiia) of section 2 or harbours any person engaged in any of the aforementioned activities, shall be punishable with rigorous imprisonment for a term not less than ten years but which may extend to twenty years and shall also be liable to fine not less than one lakh rupees but which may extend to two lakh rupees. Section 2 (viiib) defines illicit traffic in relation to narcotic drugs and psychotropic substances as: (i) cultivating any coca plant or gathering any portion of coca plant; (ii) cultivating the opium poppy or any cannabis plant; (iii) engaging in the production, manufacture, possession, sale, purchase, transportation, warehousing, concealment, use or consumption, import inter‑State, export inter‑State, import into India, export from India or transhipment of narcotic drugs or psychotropic substances; (iv) dealing in any activities in narcotic drugs or psychotropic substances other than those referred to in sub‑clauses (i) to (iii); or (v) handling or letting out any premises for carrying on any of the activities referred to in sub‑clauses (i) to (iv), other than those permitted under this Act, or any rule or order made, or any condition of any licence, term or authorisation issued thereunder, and includes: (1) financing, directly or indirectly, any of the aforementioned activities; (2) abetting or conspiring in the furtherance of or in support of doing any of the aforementioned activities; and (3) harbouring persons engaged in any of the aforementioned activities. Thus there are specific allegations against the accused that she is involved in an offence punishable under section 27‑A of the Narcotic Drugs and Psychotropic Substances Act, 1985. Therefore, the offence is non‑bailable., It is pertinent to note that under section 27‑A no particular quantity of drug is required to prove the offence., The statement of the accused was recorded by Narcotics Control Bureau officers on 6, 7 and 8 September 2020. According to the prosecution, she revealed her role in the crime. The statement is recorded under section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The learned advocate for the accused contends that during the recording of the statement no lady officer was present; only an Assistant Police Inspector was present and thus the statement is inadmissible and hit by the provisions of section 25 of the Evidence Act., In Raju Premji v. Customs NER Shillong Unit (Supreme Court) 2009 (16) SCC 496, the Honourable Supreme Court held in paragraph 24 that if a person is in custody of police officers as well as customs officers, although they are not accused in the strict sense of the term, any confession made by them would not be admissible under section 26 of the Evidence Act, 1872., Reverting to the factual score of the present case, the prosecution has explained that the accused demanded police protection to come from home to the Narcotics Control Bureau office and that is why one lady Assistant Police Inspector was accompanied to the accused. The statement of the accused was recorded on 6, 7 and 8 September 2020. The prosecution revealed the role of the accused on the basis of that statement and thereafter she was arrested. Therefore, at this stage, when the investigation is at a preliminary stage, it cannot be said that the statement of the accused was forcibly recorded and is inadmissible in evidence., Therefore, now in the given circumstances, whether the accused is entitled to bail. Section 27‑A of the Narcotic Drugs and Psychotropic Substances Act, as discussed above, deals with illicit trafficking of drug; considering the punishment prescribed for the offence, the offence is non‑bailable., In K. K. Ashraf v. State of Kerala, Bail Application No. 5251/2009; MANU/KE/1166/2009, the Honourable High Court of Kerala held in paragraphs 17 and 18 that apart from mentioning section 27‑A as an offence alleged to have been committed by the accused, there is no factual foundation for an allegation that they have committed an offence under section 27‑A of the Act. There is no allegation that the petitioner indulged in financing, directly or indirectly, any of the alleged activities, nor that the petitioner harboured any person engaged in such activities., The analysis in that case considered a scenario where a person sold narcotic drug on credit and whether that amounted to financing within the meaning of section 27‑A. The court observed that financing involves an activity other than the sale or purchase of the narcotic drug, wherein a person invests or provides funds or resources for facilitating the activities mentioned in sub‑clauses (i) to (v) of clause (viiia) of section 2 of the Narcotic Drugs and Psychotropic Substances Act. Since there is no allegation of financing or harbouring against the petitioner, prima facie section 27‑A is not attracted and the bar under section 37(1)(b) would not be available to the prosecution., However, the facts of the present case are different. It is a specific allegation against the accused that she procured drug for the late Sushant Singh Rajput by financing the same. Therefore, the ratio laid down in the above ruling is not applicable to the case at hand., There are stringent provisions of bail under section 37 of the Narcotic Drugs and Psychotropic Substances Act. As per sub‑section (2) of section 37, no person accused of an offence punishable under section 19, section 24, section 27‑A or offences involving commercial quantity shall be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity to oppose the application and, where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. Sub‑section (2) reads that the limitation on granting bail specified in clause (b) of sub‑section (1) is in addition to the limitation under the Code of Criminal Procedure, 1973, or any other law for the time being in force for granting bail., It is to be noted that there is an embargo to grant bail to a person accused of an offence under section 19, section 24 or section 27‑A of the Narcotic Drugs and Psychotropic Substances Act or offences involving commercial quantity. Section 19 deals with punishment for embezzlement of opium by cultivator. Section 24 deals with punishment for external dealing in narcotic drugs and psychotropic substances in contravention of section 12. Section 27‑A is for punishment for offence of illicit traffic and harbouring offenders. In all these sections the legislature has not described any specific quantity of drug. In view of the rigour of section 37, the Court has to record a finding that there are reasonable grounds to believe that the accused is not guilty of the offence. The Court should not consider the material as if it were a judgment of acquittal or a finding of not guilty., From the record it is seen that the accused and the late Sushant Singh Rajput were in a live‑in relationship. It is alleged that the accused procured drug for Sushant Singh Rajput by financing, and that she asked her brother Showik to arrange for the drug which was obtained from accused Zaid Vilatra and Abdel Basit. The Narcotics Control Bureau recovered WhatsApp chats and other electronic evidence. Some amount was also transferred via the accused’s credit card. Further, in the present crime there is recovery of commercial quantity of LSD from accused Anuj Keshwani. The investigation is at a preliminary stage; therefore, from the available record it cannot be said that there are no reasonable grounds to connect the accused., Thus, in the present case there is a bar under section 37 of the Narcotic Drugs and Psychotropic Substances Act to release the accused on bail., In addition, according to the prosecution the accused has taken the names of other persons. The investigation in respect of those persons is in process. If the accused is released on bail she will alert those persons and they will destroy the evidence. There is a possibility of tampering of evidence. Considering the allegations against the accused there is a bar to release the accused on bail under section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The investigation is at a preliminary stage and if the accused is released on bail she will tamper with the prosecution evidence. Hence, in such circumstances the applicant/accused is not entitled to bail. Accordingly, I pass the following order: Criminal Bail Application No. 1871/2020 stands rejected and disposed of accordingly., Additional Sessions Judge, Greater Bombay. Typed on: 11/09/2020. C.R. 43 Checked on: 14/09/2020. Signed on: 14/09/2020. Mrs. S.S. Sawant, Judge (Court Room No.) Honourable High Judge Shri G. B. Gurao.
id_1363	0	Neutral Citation Number: 2023:DHC:3707-DB Through: Mr. Arvind Datar, Senior Advocate with Ms. Kavita Jha, Mr. Vaibhav Kulkarni and Mr. Anant Mann, Advocates, versus Respondents. Through: Mr. Tushar Mehta, Solicitor General with Mr. Balbir Singh, Additional Solicitor General and Mr. Zoheb Hossain, Senior Standing Counsel, Mr. Vipul Agrawal, Mr. Sanjeev Menon, Mr. Prasanjeet Mohapatra, Mr. Shyam Gopal, Mr. Vivek Gurnani and Ms. Monica Benjimin, Advocates., Applications: W.P.(C) 4076/2021 & CM Applications 12395/2021 and 25584/2021; W.P.(C) 4083/2021 & CM Applications 12430/2021 and 16524/2021; W.P.(C) 6921/2021 & CM Applications 21839-21841/2021, 22853., Reserved on: 15 March 2023. Date of Decision: 26 May 2023., Paragraph Nos. The Constitution Bench in Kashiram Aggarwal (supra) has authoritatively interpreted and outlined the scope of Central Circle jurisdiction, which is not confined to search cases., Power under Section 127 of the Income Tax Act is in no manner trammelled or negated by the two notifications each reliance placed by petitioners upon. No assessee has any fundamental or vested legal right to be assessed by a faceless assessing officer by virtue of amendment. Undoubtedly, there can be no guilt by association or due to relationship, yet in the present matters the assessments have been transferred for the purposes of coordinated investigation. The argument that the power of transfer under the notifications is a two‑step process is untenable in law., The primary issue that arises for consideration in the present batch of writ petitions is whether the assessments of the petitioners could be transferred to the Central Circle by way of the impugned orders passed under Section 127 of the Income Tax Act, 1961 without sanction of the Central Board of Direct Taxes., The present batch of writ petitions has been preferred by five charitable trusts – Sanjay Gandhi Memorial Trust, Jawahar Bhawan Trust, Rajiv Gandhi Foundation, Rajiv Gandhi Charitable Trust, Young India – as well as three individuals – Mrs. Sonia Gandhi, Mr. Rahul Gandhi, Mrs. Priyanka Gandhi Vadra – and a political party, Aam Aadmi Party., In the present batch of writ petitions, the petitioners have challenged the transfer orders passed under Section 127 of the Act, whereby the jurisdiction of the petitioners has been transferred from Exemption Circle (in cases of trusts) and ACIT Circle 52(1) (in cases of individuals) to DCIT Central Circle‑27, and in the case of Aam Aadmi Party from Exemption Circle to DCIT Central Circle‑03. All the Income Tax Officers, both transferor and transferee, are located within the same city, namely Delhi., The facts of Writ Petition (C) 3535 of 2021, which was treated as the lead writ petition with the consent of parties, are as follows. The petitioner, Sanjay Gandhi Trust, was established with the intent of providing health services, education and employment to the people of rural Uttar Pradesh. The Trust manages a rural medical centre, the Sanjay Gandhi Hospital, educational institutes such as Indira Gandhi School and College of Nursing, Indira Gandhi Institute of Paramedical Sciences, Indira Gandhi Technical Institute and Rajiv Gandhi Computer Shiksha Kendra. The petitioner is registered as a charitable institution under Section 12A of the Act and assessments have been completed under Section 143(3)/143(1) of the Act up to Assessment Year 2017‑18. The charitable purpose of the petitioner has never been doubted by the revenue till the said assessment year., By way of Finance Act, 2018, the concept of E‑assessment was introduced in the Act by insertion of sub‑sections (3A), (3B) and (3C) to Section 143. Sub‑sections (3A), (3B) and (3C) to Section 143 are reproduced below: (3A) The Central Government may make a scheme, by notification in the Official Gazette, for the purpose of making assessment of total income or loss of the assessee under sub‑section (3) so as to impart greater efficiency, transparency and accountability by (a) eliminating the interface between the Assessing Officer and the assessee to the extent technologically feasible; (b) optimising utilisation of resources through economies of scale and functional specialisation; (c) introducing a team‑based assessment with dynamic jurisdiction. (3B) The Central Government may, for the purpose of giving effect to the scheme made under sub‑section (3A), by notification in the Official Gazette, direct that any of the provisions of this Act relating to assessment of total income or loss shall not apply or shall apply with such exceptions, modifications and adaptations as may be specified in the notification, provided that no direction shall be issued after the 31st day of March. (3C) Every notification issued under sub‑section (3A) and sub‑section (3B) shall, as soon as may be after the notification is issued, be laid before each House of Parliament., On 12 September 2019, the E‑assessment Scheme, 2019 was notified and implemented by the Central Government vide Notifications No. 61 and 62 of 2019. Notification No. 61/2019 (S.O. 3264(E)) provides, inter alia, the short title and commencement, definitions (including ‘assessment’, ‘automated allocation system’, ‘automated examination tool’, ‘e‑assessment’), and the establishment of e‑assessment centres – a National e‑assessment Centre, Regional e‑assessment Centres, assessment units, verification units, technical units and review units – together with their respective functions., The procedure for assessment under the Scheme includes: (i) the National e‑assessment Centre finalising the assessment where no prejudicial modification is proposed, or providing an opportunity to the assessee where such modification is proposed; (ii) the response of the assessee being dealt with as per prescribed paragraphs; (iii) after completion of assessment, the National e‑assessment Centre transferring all electronic records of the case to the Assessing Officer having jurisdiction for purposes such as imposition of penalty, collection, rectification, appellate orders, or sanction for prosecution; and (iv) the National e‑assessment Centre may at any stage, if considered necessary, transfer the case to the Assessing Officer having jurisdiction., Notification No. 62/2019 (S.O. 3265(E)) directs that the provisions of various sections of the Act, including sections 2(7A), 92CA, 120, 124, 127, 129, 131, 133, 133A, 133C, 134, 142, 142A, 143, 144A, 144BA, 144C and Chapter XXI, shall apply to assessments made in accordance with the Scheme subject to specified exceptions, modifications and adaptations., In the Budget Speech 2019, the Finance Minister introduced the concept of Faceless Assessment with the intention of eliminating personal interaction between the taxpayer and the Department, which was deemed to lead to undesirable practices., On 23 September 2019, a notice under Section 143(2) of the Act was issued to the petitioner, as per the E‑assessment Scheme, for scrutiny assessment for Assessment Year 2018‑19. On 13 August 2020, the Hon'ble Prime Minister launched the Faceless Assessment Scheme, emphasizing that there would be no communication between the Assessing Officer and the assessee and that the allotment of the Assessing Officer would be done by an automated system. The notifications of 2019 were amended by Notifications No. 60 and 61 of 2020 dated 13 August 2020., Notification No. 60/2020 (S.O. 2745(E)) substitutes the term ‘E‑assessment’ with ‘Faceless Assessment’ in the Scheme and amends paragraph 5 to provide that after completion of assessment the National e‑assessment Centre shall transfer all electronic records to the Assessing Officer having jurisdiction, and that the Principal Chief Commissioner or the Principal Director General, in charge of the National e‑assessment Centre, may at any stage transfer the case to the Assessing Officer with prior approval of the Board., Notification No. 61/2020 (S.O. 2746(E)) similarly substitutes ‘E‑assessment’ with ‘Faceless Assessment’ and reiterates that the provisions of the specified sections of the Act shall apply to assessments made under the Scheme, subject to the same exceptions, modifications and adaptations, and that the National e‑assessment Centre may transfer the case to the Assessing Officer with prior Board approval., On 14 October 2020, the petitioner received a letter from the National e‑Assessment Centre stating that the pending E‑assessment for Assessment Year 2018‑19 would now be completed under the Faceless Assessment Scheme. On 23 November and 30 December 2020, the petitioner received notices under Section 142(1) of the Act calling upon it to submit certain documents and details for the ongoing assessment proceedings, which were duly complied with., On 8 January 2021, Respondent No. 1, Commissioner of Income Tax (Exemption), New Delhi, passed an order under Section 127 of the Act transferring jurisdiction of the petitioner from Respondent No. 3, Deputy Commissioner of Income Tax (Exemption), New Delhi, to Respondent No. 4, Deputy Commissioner of Income Tax, Central Circle‑27, New Delhi, on the ground of better coordination, effective investigation and meaningful assessment, with prior approval of the Central Circle (CCIT(C))., On 13 and 25 January 2021, the National e‑Assessment Centre issued notices under Section 142(1) seeking additional information for the pending assessment. On 3 February 2021, Respondent No. 4 issued an impugned notice under Section 142(1) to the petitioner for Assessment Year 2018‑19., By way of the present petition, the petitioner challenges the impugned order dated 8 January 2021 passed under Section 127 of the Act and the impugned notice dated 3 February 2021 issued by Respondent No. 4 under Section 142(1) of the Act., Mr. Arvind Datar, Senior Counsel for Mrs. Sonia Gandhi, Mr. Rahul Gandhi, Mrs. Priyanka Gandhi Vadra and the five charitable trusts, submitted that the Budget Speech 2019 set out the concept of the Faceless e‑assessment Scheme, stating that the existing system of scrutiny assessments involved a high level of personal interaction leading to undesirable practices, and that the new scheme would eliminate human interface, allocate cases randomly, and issue notices electronically through a Central Cell, representing a paradigm shift in the functioning of the Income Tax Department., He further summarised the Faceless Assessment procedure as follows: (a) a National e‑Assessment Centre vested with jurisdiction to make assessment; (b) notices under Section 143(2) issued by the National e‑Assessment Centre; (c) after receipt of the assessee’s reply, the case is assigned to a specific assessment unit in a Regional e‑Assessment Centre through an automated allocation system; (d) the Regional e‑Assessment Centre may request information from the National e‑Assessment Centre; (e) the National e‑Assessment Centre issues appropriate notice to the assessee; (f) the information is submitted to the National e‑Assessment Centre and forwarded to the Assessment Unit; (g) technical assistance requests are routed similarly; (h) the Regional e‑Assessment Centre prepares a draft assessment order, which is examined using an automated examination tool; (i) the review unit may suggest modifications; (j) the National e‑Assessment Centre may re‑assign the case to another Regional e‑Assessment Centre; (k) after completion, the National e‑Assessment Centre transfers all electronic records to the Assessing Officer having jurisdiction., He emphasized that assessments will now be processed only on the basis of written submissions and in electronic mode, so that the location of the assessment and the identity of the Assessing Officer will remain unknown to the assessee., The Central Board of Direct Taxes issued an instruction dated 17 September 2020 setting out guidelines for compulsory selection of returns for complete scrutiny for Financial Year 2020‑21 under the Faceless Assessment Scheme. The instruction prescribed parameters for selection of cases pertaining to survey under Section 133A, search and seizure assessments, notices under Section 142(1), notices under Section 148, and cases related to registration/approval under various sections such as 12A, 35, 10(23C). The selection of cases for compulsory scrutiny shall be completed by 30 September 2020., He concluded that, in view of the foregoing, all assessments will now be subject to the Faceless Assessment procedure except those relating to international taxation and assessments that are required to be dealt with by the Central Circle. He emphasized that the CBDT has issued circulars to decide the types of cases that ought to be dealt with by the Central Circle.
id_1363	1	He stated that usually cases where income‑tax raids or searches have been carried out are dealt with by the Central Circle. He contended that the Central Board of Direct Taxes circulars indicate that the transfer to the Central Circle is not to be at the whim of any Income Tax Officer or Commissioner, but the stipulated guidelines of the Central Board of Direct Taxes have to be strictly followed., He stated that none of the assessee herein has been subjected to any raid or search but their cases are being sought to be transferred to the Central Circle. He submitted that transfers are completely contrary to statutory provisions and vitiated by legal malice., He submitted that the notifications issued on 12 September 2019, paragraph 5(xxi) permitted transfer from the National e‑Assessment Centre only to the Assessing Officer having jurisdiction over the case., He stated that this notification was amended by another notification dated 13 August 2020 and the procedure for transfer was further subjected to prior approval of the Central Board of Direct Taxes., He submitted that in all these writ petitions, this requirement has been completely violated, as there is no prior approval of the Central Board of Direct Taxes and, in any event, the transfer has to be made only to the Assessing Officer and not the Central Circle. He submitted that these notifications have a statutory character and cannot be altered or changed by any circular issued by the Central Board of Direct Taxes under Section 119 of the Income Tax Act., He further submitted that even assuming that there is a power of transfer, the transfer to the Central Circle can only be on the basis of the circulars. He contended that in none of these petitions are these conditions satisfied. Therefore, according to him, even if the cases are transferred to the jurisdictional Assessing Officer, they cannot be further transferred to the Central Circle., He submitted that the respondents’ reliance on the decision of the Supreme Court in Kashiram Agrawalla v. Union of India and Others (1965) 1 SCR 671 in the counter‑affidavits is misconceived as the present writ petitions were concerned with the new notification issued under Sections 143(3A) and 143(3B) of the Income Tax Act., He pointed out that though in the writ petitions filed by trusts and the Gandhis, the orders of transfer were sought to be justified on the basis that they were concerned with the Sanjay Bhandari group of cases, no material was forthcoming as to what is the connection with these appeals and the Sanjay Bhandari group of cases. He contended that even in the latest counter‑affidavit, no factual details of such a connection had been placed on record., He lastly contended that just because transfer of Shri Robert Vadra’s case had not been objected to, the cases of the Gandhis and the trusts could not be transferred. He submitted that there can be no guilt by association or guilt due to relationship. In support of his submission, he relied upon the judgment of the Supreme Court in Chintalapati Srinivasa Raju v. Securities and Exchange Board of India (2018) 7 SCC 443., Learned counsel Mr Amar Dave, who appeared for the Aam Aadmi Party in W.P.(C) 6921/2021, submitted that the cogent rights have been embedded in the statutory framework under which the Faceless Assessment Mechanism has been incorporated in the scheme of the Income Tax Act itself, which undeniably leads to a conclusion that any deviation from giving the benefit to an assessee of this mechanism must be construed strictly., He also submitted that the very nature of the Faceless Assessment Mechanism incorporated in the provisions of the Act provides for a wide‑ranging statutory rights such as, inter‑alia: (i) the assessment being carried out in a dynamic and team‑based manner, i.e., the exercise being undertaken simultaneously with the assistance of various specialised units; (ii) multiple layers of scrutiny before finalisation of the assessment; (iii) the automated assignment of the case eliminating any prejudice; (iv) draft assessment order whereby opportunity is given to the assessee before finalising the assessment order in case of an order prejudicial to the assessee; (v) no physical meeting with any officer; (vi) minimal interface with maximum governance., He stated that any deprivation of such rights as an assessee will obviously affect the assessee prejudicially. He contended that perusal of Section 143(3A) and Section 143(3B) of the Income Tax Act leaves no room for doubt that under this special mechanism, the assessee is provided with the comfort of a transparent mechanism under which the assessment is undertaken., He pointed out that the scheme clearly shows that not only a dynamic mechanism is contemplated for undertaking the assessment but the same also provides for various specialised units such as the assessment unit, verification unit, technical unit, and the review unit to simultaneously be a part of the assessment process in a dynamic manner., He contended that the scheme clearly incorporates various checks and balances including a multi‑layered review mechanism before reaching a conclusion on the assessment process. This bundle of statutory rights flowing from the scheme and cognate provisions of the Act provides the assessee the assurance of greater efficiency, transparency and accountability, which are the core objectives statutorily recognised by the Legislature itself in the provisions of the Act., He argued that such additional rights vested in the statute itself cannot be taken away unless specifically provided for, even if the basis of the exercise has to demonstrate no other alternative as well as overwhelming justifiable reasons for doing so., He submitted that the earlier judgment in the case of Kashiram Agarwalla (supra) has no bearing post such amendments. He further submitted that alternatively, assuming the power under Section 127 of the Act can continue to be exercised even post amendment, the same requires a different interpretation bearing in mind the nature and scope of the assessment mechanism now prevailing., He emphasised that the very nature of the Faceless Assessment Mechanism shows that the contemplation of transfer under Section 127 of the Income Tax Act cannot have the same meaning as it was prior to such insertion of the Faceless Assessment Mechanism, and therefore, by the very special nature of the Faceless Assessment Mechanism, the earlier interpretation of transfer within the city or between different cities will clearly have a separate connotation. He argued that when the matter is examined from these angles, bearing in mind the purport and scope of the special scheme, there is no question of contending that the ratio of the judgment in Kashiram Agarwalla applies even after the introduction of such a special scheme., Learned Solicitor General submitted that the impugned orders transferred the cases from Exemption Circle in case of trusts or Additional Chief Income Tax Circle 52(1) in cases of individuals in New Delhi to Deputy Chief Income Tax, Central Circle‑27 and both the officers are indisputably within the same city, namely New Delhi, at about three kilometres distance only, under different Principal Chief Income Tax officers. He stated that the reason mentioned in the impugned orders is better coordination, effective investigation and meaningful assessment which reflects administrative convenience and exigency, viz. the need of the assessment taking place under the same Assessing Officer and any future possibility of conflicting views or treatment in similar transactions is averted., He submitted that the present case is squarely covered by the Constitution Bench judgment of the Supreme Court in Kashiram Agarwala (supra), wherein the Supreme Court has held that there is no requirement for recording of reasons under Section 127 of the Act nor any requirement that a reasonable opportunity be given to the assessee when the transfer is within the same city, locality or place., Without prejudice to the above, he relied on the judgments in Kamlesh Rajnikant Shah v. Principal Commissioner of Income Tax, [2022] 138 Taxmann 59 (Gujarat) paras 17‑25; Advantage Strategic Consulting Pvt. Ltd. v. Principal Chief Income Tax Chennai (2021) 124 Taxmann 511 (Madras) paras 9‑11 and submitted that it is well settled that the exercise of power under Section 127 of the Act is a mere administrative power based upon administrative exigencies of tax assessment and tax collection and does not adversely affect the assessee as its right to a fair assessment under the law remains intact., He further relied on the judgment in Chaudhary Skin Trading Company v. Principal Commissioner of Income Tax‑21 (2016) SCC OnLine Del 5943 : (2016) 290 CTR 533 paras 11 and submitted that the power of transfer under Section 127 of the Act cannot be likened to a quasi‑judicial power and hence even the briefest of reasons and discernible public interest would be sufficient for exercise of such power and courts would not interfere with such exercise of power., He submitted that this Hon'ble Delhi High Court in ATS Infrastructure Ltd. v. Commissioner of Income Tax, (2009) 318 ITR 299 (Delhi) whilst distilling the principles of transfer under Section 127 of the Act has held that firstly, there is no fundamental right of an assessee to be assessed at a particular place. Under Section 124 of the Act, the assessment must be carried out at the principal place of business but when powers under Section 127 of the Act are invoked, territorial nexus becomes irrelevant. Secondly, the determination of the venue of the assessment would be governed by the greatest effectiveness for collection of taxes. Thirdly, whilst the convenience of the assessee should be kept in mind, it would always be subservient to the interests of adjudication and collection of taxes., He relied on the judgment in K.P. Mohammed Salim v. Commissioner of Income Tax, [2008] 300 ITR 302 wherein the Supreme Court held that the power of transfer is a machinery provision. It must be given full effect and construed in a manner so as to make it workable. Even Section 127 of the Act is a machinery provision and should be construed to effectuate a charging section so as to allow the authorities concerned to do so in a manner for which the statute was enacted., Without prejudice to the above, he submitted that nevertheless the transfer order categorically records that the transfer is effected for the purpose of better coordination and meaningful assessment., He argued that the requirement of a coordinated investigation or coordinated assessment has been held to meet the requirement of law for the purpose of transfer. To substantiate his submission, he placed reliance on the judgment of the Division Bench of the Chhattisgarh High Court in Commissioner of Income Tax v. Union of India & Others (2013) 358 ITR 341 wherein it was observed that the expression “coordinated investigation” is not vague and that transfer orders using similar expressions have been upheld by almost all the High Courts in the country. Similar views have been taken by the Madras High Court in General Exporters v. Commissioner of Income Tax & Others (2008) 307 ITR 132 and the Gujarat High Court in Kamlesh Rajnikant Shah v. Principal Commissioner of Income Tax (2022) 138 Taxmann 59 (Gujarat)., He also placed reliance on the judgment in Virendra Kumar Jain v. Commissioner of Income Tax, 2006 156 Taxmann 332 (All India) and stated that the courts have held consistently that the paramount consideration for transfer of a case under Section 127 of the Act is public interest and reason to have coordinated investigation in the matter of family members or group of companies is a good ground for transfer which cannot be faulted, and that at the stage of transfer, sufficiency of reasons cannot be gone into., He submitted that the petitioners’ submission is that after the coming into force of the Faceless Assessment Scheme notified under sub‑sections (3A), (3B) and (3C) of Section 143 of the Act, the power to transfer cases under Section 127 of the Act no longer exists and it can only be exercised in terms of the notifications permitting transfer from the National Faceless Assessment Centre only to the Assessing Officer having jurisdiction. He argued that this is untenable in law as it fails to consider that the notification dated 13 August 2020 does not interfere with the power of transfer under Section 127 of the Act., The petitioners claim to have a vested right of faceless assessment is fallacious as there is no challenge laid to the statutory notifications which empower the Board to apply the Faceless Assessment Scheme in respect of certain classes of cases and exclude certain other classes of cases. In exercise of such power contained in clause (3) of the notification dated 12 September 2019, the Board decided to exclude Central Charges and International Taxation charges from the Faceless Assessment Scheme. There is neither a challenge to clause (3) nor to the Central Board of Direct Taxes order dated 13 August 2020 passed under clause (3) of the Faceless Assessment Scheme, 2019, which excludes Central Charges and International Taxation charges from the Faceless Assessment Scheme. Therefore, the argument that faceless assessment is a vested right fails to consider that the statute itself provides for certain exceptions. Hence, when by way of a legal exercise of power under Section 127 of the Act for the purpose of coordinated investigation certain parties are centralized, they are no longer assessed under the faceless regime. He emphasized that there is no vested right to choose either manner of assessment or the Assessing Officer so long as the statutory provisions are followed., He contended that even when the function of assessment is outsourced to the Faceless Assessment Officer, the jurisdictional Assessing Officer continues to exercise concurrent jurisdiction and perform several functions after completion of assessment such as imposition of penalty; collection and recovery of demand; rectification of mistake; giving effect to appeal orders; proposal seeking sanction for launch of prosecution and filing of complaint before the court etc., He also contended that Section 127 of the Act falls under Chapter XIII which relates to jurisdiction of Income Tax authorities and, in contrast, Chapter XIV is only a procedural chapter limited to the assessment function. He submitted that Section 144B under Chapter XIV provides for the faceless scheme of assessment and the jurisdiction continues to be governed under Chapter XIII., He argued that allegation of malice demands proof of a high order of credibility and, apart from the bald averments of legal malice, the petitioner has not been able to demonstrate any malice in law or fact on the part of the revenue; therefore, the present writ petitions deserve to be dismissed being devoid of any merit., He submitted that the reliance placed by the petitioner’s counsel on the judgment in Chintalapati Srinivasa Raju v. Securities and Exchange Board of India is misplaced for the reason that the said judgment related to the petitioner being labelled as an insider for the purposes of the SEBI Prohibition of Insider Trading Regulations, 1992 on the ground that he was co‑brother of Ramalinga Raju, which led to serious adverse consequences including being barred from accessing the securities market for a period of seven years and being ordered to disgorge an amount of Rs 136.64 crore., Having heard learned counsel for the parties, the Hon'ble Delhi High Court is of the view that the present cases involve the interpretation of the notifications dated 12 September 2019 and 13 August 2020 and not Section 144B, as at the time of passing of the impugned orders dated 8 January 2021 (in the cases of Mrs Sonia Gandhi, Mr Rahul Gandhi and Mrs Priyanka Gandhi Vadra and five charitable trusts) and 22 February 2021 (in Aam Aadmi Party), the Faceless Assessment Scheme was governed by the notifications issued under Sections 143(3A) and 143(3B) of the Act. It is pertinent to mention that the Faceless Assessment Scheme was incorporated in the Act by the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 with effect from 1 April 2021. Consequently, this Court is of the view that it is necessary to examine the scope, ambit as well as interpretation of Section 127 of the Act and whether, in view of the two notifications each dated 12 September 2019 and 13 August 2020, the power of transfer under Section 127 of the Act has been denuded., The Constitution Bench of the Supreme Court in Kashiram Aggarwalla v. Union of India and Others (1965) 1 SCR 671 has authoritatively interpreted and outlined the scope and ambit of Section 127 of the Act. The Supreme Court held that a transfer order under Section 127 of the Act is a mere administrative order invariably made on the ground of administrative convenience. Neither is there any requirement of recording of reasons under Section 127 nor any requirement that a reasonable opportunity be given to the assessee when the transfer is within the same city as in the present batch of writ petitions. The relevant portion of the judgment is reproduced below:, Section 124 of the Act deals with the jurisdiction of Income Tax Officers. Section 124(3) provides that within the limits of the area assigned to him the Income Tax Officer shall have jurisdiction (a) in respect of any person carrying on a business or profession, if the place at which he carries on his business or profession is situated within the area, or where his business or profession is carried on in more places than one, if the principal place of his business or profession is situated within the area, and (b) in respect of any other person residing within the area. This provision clearly indicates that where a transfer is made under the proviso to Section 127(1) from one Income Tax Officer to another in the same locality, it merely means that instead of one Income Tax Officer who is competent to deal with the case, another Income Tax Officer has been asked to deal with it. Such an order is purely administrative for considerations of convenience of the department and no possible prejudice can be involved in such a transfer., The Hon'ble Delhi High Court therefore holds that the impugned orders cannot be challenged on the ground that the Board has not recorded reasons in directing the transfer of the cases pending against the assessee from one Income Tax Officer to another in the same locality., Almost all the High Courts have held that transfer under Section 127 of the Act for the purpose of coordinated investigation is a sufficient reason for passing such an administrative order. Consequently, it is settled law that a transfer order under Section 127 of the Act does not affect any fundamental or legal right of an assessee and the courts ordinarily refrain from interfering with the exercise of such power., Further, Central Circle jurisdiction is not confined to search cases only. Central Charge is also conferred with jurisdiction over non‑search cases where coordinated investigation is required. The circular dated 25 April 2014 makes it clear that there is no restriction upon transferring non‑search cases to Central Circle. The relevant portion of the circular is reproduced: “The matter has been considered by the Board and it is clarified that the transfer/centralisation of cases is done as per provisions of Section 127 of the Act which is not limited to transfer/centralisation of only search cases… Cases falling in the categories (illustrative) could be considered… i. Non‑search cases connected with the search cases where findings of the search have material bearing… ii. Survey cases or enquiry cases… iii. Cases arising out of a scam as a result of investigation/enquiry conducted by some other Law Enforcement Agency… iv. Complex cases of substantial revenue implication… v. Any other case which is required to be centralised for administrative requirement…”., The question that arises is whether the power under Section 127 of the Act is in any manner trammelled upon or negated by the introduction of the e‑assessment and Faceless Assessment Scheme via the two notifications dated 12 September 2019 and 13 August 2020., This Court is of the view that though in 2019 the concept of e‑assessment and in 2020 the concept of Faceless Assessment were introduced, the jurisdictional Assessing Officer continues to exercise concurrent jurisdiction with the Faceless Assessing Officer. Pursuant to the power under Section 120(5) of the Act which empowers the Central Board of Direct Taxes to confer concurrent jurisdiction on two or more Assessing Officers for proper management of the work, the Board vide Notification No. 64/2020 dated 13 August 2020 conferred power upon the Income‑tax Authorities of the National e‑Assessment Centre to exercise the powers and functions of Assessing Officer concurrently while the original jurisdiction continues with the jurisdictional Assessing Officer. The relevant portion of the notification is reproduced: “S.O. 2756(E). In pursuance of the powers conferred by sub‑sections (1), (2) and (5) of Section 120 of the Income‑tax Act, 1961, the Central Board of Direct Taxes hereby directs that the Income‑tax Authorities of the National e‑Assessment Centre (NeAC) specified in Column 2 of the Schedule, having its headquarters at the place mentioned in Column 3 of the Schedule, shall exercise the powers and functions of Assessing Officer concurrently, to facilitate the conduct of Faceless Assessment proceedings.”, It is clarified in the e‑assessment and Faceless Assessment Scheme that once a case is selected for scrutiny, for the limited purpose of passing an assessment order for a particular assessment year, the case is assigned to the National e‑Assessment Centre and after assessment the electronic records of the case are to be transferred back to the jurisdictional Assessing Officer., Further, the e‑assessment Scheme 2019 and Faceless Assessment Scheme issued vide the two notifications dated 12 September 2019 and 13 August 2020 under Sections 143(3A) and 143(3B) of the Act clearly stipulate that the provision of Section 127 of the Act shall apply subject to exceptions, modifications and adaptations as stipulated therein. In other words, if the Faceless Assessment Scheme has not modified Section 127 of the Act, the powers under the said section would continue to apply to all cases in an unmodified manner., Clause (xxi) of the notifications No. 61/2019 and 62/2019 dated 12 September 2019, issued in exercise of powers under Sections 143(3A) and 143(3B) of the Act to give effect to the e‑assessment Scheme, authorises the National e‑Assessment Centre to transfer the case of the assessee at any stage of the assessment (i.e., only when the assessment proceeding is pending before the National e‑Assessment Centre) to the Assessing Officer having jurisdiction over such case, as the scope of power and functions of the National e‑Assessment Centre is limited to facilitating the conduct of e‑assessment. Consequently, this Court is of the view that the two notifications dated 12 September 2019 enlarge and supplement the power of transfer by authorising the National e‑Assessment Centre to transfer at any stage of assessment the case of the assessee to the Assessing Officer having jurisdiction, i.e., from Faceless Assessing Officer to the jurisdictional Assessing Officer (an Assessing Officer always having concurrent jurisdiction)., The notifications dated 13 August 2020 clarify that the provisions of Section 127 of the Act shall apply to the assessment made in accordance with the Scheme subject to the following exceptions, modifications and adaptations. Clause (2) of the notifications No. 60 and 61 of 2020 enables the Principal Chief Commissioner or Principal Director General in charge of the National e‑Assessment Centre, at any stage of the assessment, to send back the case to the Assessing Officer having jurisdiction over such case, with prior approval of the Board. Clause (2) only authorises a transfer back to the jurisdictional Assessing Officer holding original jurisdiction, which he never loses as it is only the function of assessment that is to be carried out by the Faceless Assessing Officer having concurrent jurisdiction. Consequently, Clause (2) re‑transfers the function of assessment to the jurisdictional Assessing Officer holding concurrent jurisdiction. Further, the clause confers power of transfer upon the Principal Chief Commissioner or Principal Director General of the National e‑Assessment Centre and not upon any other Principal Director General or Director General or Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner., This power under Clause (2) is nowhere akin to the power to transfer under Section 127(2) of the Act wherein the jurisdiction over a case of an assessee is transferred by a Principal Director General or Director General or Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner from one Assessing Officer under one Commissioner to another Assessing Officer under another Commissioner, i.e., to another Assessing Officer not holding concurrent jurisdiction over the assessee., Consequently, even where the assessment proceeding is pending before the National e‑Assessment Centre, there is no power either under e‑assessment or the Faceless Assessment Scheme to transfer the case from the jurisdictional Assessing Officer to Central Circle, as the power and functions are limited to facilitation of e‑assessment/Faceless Assessment proceedings., The sub‑clauses in the notifications dated 12 September 2019 and 13 August 2020 refer to transfers made from the National e‑Assessment Centre at any stage of the assessment, i.e., during the process of assessment alone, whereas any transfer order under Section 127 of the Act changes the Assessing Officer having jurisdiction over such case from one officer to another at any stage, even when there is no pending proceeding., The contention of the petitioners that the requirement of prior approval of the Central Board of Direct Taxes, as stipulated in the notifications dated 12 September 2019 and 13 August 2020, has been violated is untenable as the transfers in the present writ petitions fall under Section 127 of the Act and not under the said notifications., Consequently, the transfer of a case under Section 127 of the Act is an altogether different power which continues to exist even after the introduction of the e‑assessment/Faceless regime. Accordingly, the Scheme does not in any manner trammel upon or negate the existing powers contained in Section 127 of the Act to transfer the cases as provided for thereunder.
id_1363	2	Consequently, the power of transfer under Section 127 of the Income Tax Act is not in any manner denuded by the Faceless Assessment Scheme when the transfer is sought to be made from a Jurisdictional Assessing Officer under one Principal Commissioner of Income Tax to another Assessing Officer under a different Principal Commissioner of Income Tax who are not exercising concurrent jurisdiction over the case., The submission of the petitioners that Section 127 of the Act requires that a transfer order can be made only if there is seized material qua an assessee is untenable in law. The reliance placed by learned counsel for the petitioners upon the guidelines dated 17th September 2020 is misplaced as the said guidelines are limited for the purpose of compulsory selection of returns for complete scrutiny during the Financial Year 2020-21. The aforesaid guidelines do not in any manner curtail or control the power of transfer under Section 127 of the Act. Paragraph 3 of the aforesaid guidelines clearly provides that without prejudice to the above, cases which are selected for compulsory scrutiny by the international taxation and central charges following the above prescribed guidelines shall as earlier continue to be handled by these charges. This reiterates the position of the statutory scheme that cases which are transferred to the Central Circle are not required to be assessed in a faceless manner., The Delhi High Court is also of the opinion that no assessee has any fundamental or vested legal right to be assessed by a Faceless Assessing Officer by virtue of amendment of Sections 143(3A) and 143(3B) of the Act. Firstly, Section 143(3A) of the Act stipulates that the Central Government may make a Scheme to eliminate the interface between the Assessing Officer and the assessee. This implies that the Central Government has the discretion to frame or not to frame a Faceless Assessment Scheme. Consequently, the argument that Faceless Assessment is a vested right fails to consider the language of the statute itself., Secondly, Notification Number 61/2019 dated 12th September 2019 itself clarifies under the heading 3. Scope of the Scheme that the assessment under this Scheme shall be made in respect of such territorial area, or persons or class of persons, or incomes or class of incomes, or cases or class of cases, as may be specified by the Board. There is neither a challenge to clause (3) as stated above, nor a challenge to the Central Board of Direct Taxes order dated 13th August 2020 passed under clause (3) of the Faceless Assessment Scheme, 2019, which excludes Central Charges and International Taxation charges from the Faceless Assessment Scheme. Consequently, when by way of a legal exercise of power under Section 127 for the purpose of coordinated investigation, certain parties are centralized then as a legal consequence, they are no longer assessed under the Faceless regime., Even under the Central Charges, the assessment proceedings are conducted through the e‑proceeding functionality, and as such, the assessee or its authorised representative would not be bound to physically appear before the Assessing Officer on each date of hearing. In view of the above, no prejudice shall be caused to the assessee on account of the case being transferred to the Central Circle., Undoubtedly, the principle of law laid down by the Supreme Court in Chintalapati Srinivasa Raju versus Securities and Exchange Board of India is that there can be no guilt by association or guilt due to relationship, yet in the present batch of writ petitions, the assessments of the petitioners have been transferred only for the purposes of coordinated investigation and meaningful assessment., Transfer in the present batch of writ petitions would also not be violative of the guidelines issued by the Central Board of Direct Taxes, as the transfers according to the counter affidavit have taken place for the purposes of better coordination and meaningful assessment of the present cases either with those of Shri Robert Vadra (the husband of the petitioner in Writ Petition (Civil) Number 4083 of 2021) and Shri Sanjay Bhandari and Satyendar Kumar Jain, Member of AAP and former Cabinet Minister in the Government of Delhi. No final view has been or can be taken without a fair and adequate opportunity given to the assessee to explain that they are not connected in any manner with the said cases for the purpose of assessment during the assessment proceedings. Consequently, there are absolutely no adverse civil consequences against the petitioners thereby making this judgment inapplicable to the present batch of writ petitions., The Delhi High Court clarifies that in the present batch of writ petitions, it has not relied upon the original files produced by the respondents, as there are sufficient reasons to justify the administrative decision to transfer the cases of the petitioners from the Jurisdictional Assessing Officer to the Central Circle., The argument of the petitioners that the power to transfer cases under Section 127 of the Act, after coming into force of the Faceless Assessment Scheme and notifications is a two‑step process that is, from Faceless Assessing Officer to Jurisdictional Assessing Officer and then from Jurisdictional Assessing Officer to the transferee Assessing Officer, is untenable in law for the reason stated hereinabove that in Clause (2) of Notification Number 62/2019, the Principal Chief Commissioner or Principal Director General in charge of the National e‑Assessment Centre has the power to transfer back the case to the Jurisdictional Assessing Officer at any stage of the assessment to complete assessment, whereas the power under Section 127 of the Act can be exercised at any stage even when no assessment is pending. This is apparent from the definition of the expression ‘case’ in the Explanation to Section 127 of the Act. For the sake of convenience, the expression ‘case’ as defined in Section 127 of the Act is extracted as below: Explanation. In section 120 and this section, the word ‘case’, in relation to any person whose name is specified in any order or direction issued thereunder, means all proceedings under this Act in respect of any year which may be pending on the date of such order or direction or which may have been completed on or before such date, and includes also all proceedings under this Act which may be commenced after the date of such order or direction in respect of any year., Also, as stated hereinabove, neither the e‑assessment nor the Faceless Assessment Scheme in any manner modifies the power to transfer cases from one Assessing Officer under a Principal Commissioner of Income Tax to another Assessing Officer under another Principal Commissioner of Income Tax who are holding non‑concurrent charges. The aforesaid schemes only authorise transfer back of the case to the Jurisdictional Assessing Officer holding original jurisdiction which he never loses as only the function of assessment is carried out by the Faceless Assessing Officer holding concurrent jurisdiction. But, when a case is transferred under Section 127 of the Act, all proceedings under this Act get transferred. The power under Section 127 of the Act to transfer the case or all proceedings under the Act is nowhere provided for under the aforesaid schemes. Moreover, the submission that the notifications dated 12th September 2019 and 13th August 2020 permit transfer in the first instance only from the National e‑Assessment Centre to the Jurisdictional Assessing Officer is untenable in law as there may be cases where no assessment is pending before the Faceless Assessing Officer, yet the case of the assessee is transferred to the Central Circle. Consequently, Section 127 of the Act to the extent it permits transfer from one Assessing Officer under a Principal Commissioner of Income Tax to another Principal Commissioner of Income Tax who are holding non‑concurrent charges remains untouched and continues to apply in its pristine form., Keeping in view the aforesaid conclusions, the Delhi High Court is of the view that the assessments of the petitioners have been transferred to the Central Circle in accordance with law by way of the impugned orders passed under Section 127 of the Act. Accordingly, the present writ petitions along with pending applications are dismissed, without any order as to costs and the interim orders passed by the Delhi High Court stand vacated. However, the Delhi High Court clarifies that it has not examined the controversy between the parties on merits and they shall be at liberty to raise all their contentions and submissions before the concerned statutory authorities.
id_1366	0	The issue arising in the present proceedings is about achieving an equilibrium between the right of meat vendors to do business on one hand, and the concerns for food safety and public health on the other. It may also be described as a conflict between the right to food and the right to have safe food., Learned senior advocate Mister Percy Kavina, together with learned advocate Mister Ejaz Kureshi, learned advocate Mister M.T.M. Hakim and learned advocate Mister Rizvan Shaikh appeared for the applicants in the respective civil applications. Learned government pleader Miss Manisha Lavkumar, assisted by learned assistant government pleader Mister Chintan Dave, appeared for the respondent State and the authorities of the State. Learned senior advocate Mister Asim Pandya, together with learned advocates Mister Jay Shah, Mister Hasim Kureshi and Mister Jay Thakkar, appeared for the respective private respondents in all the civil applications., The submissions on behalf of the respective parties were confined to the prayers in the captioned civil applications. The twenty‑one applicants of Civil Application No. 10 of 2023 have prayed for an order to open the seal of chicken meat shops in the city of Surat. The applicant of Civil Application No. 12 of 2023 (original respondent No. 44) and the applicant of Civil Application No. 13 of 2023 (original respondent No. 43) have sought similar directions for reopening the premises or shops or slaughter houses of the members of the applicant association engaged in the slaughtering of small animals such as goats and sheep and for permission to sell mutton. It is further prayed to direct the respondents to implement the order and directions of the Supreme Court of India issued in Writ Petition (Civil) No. 309 of 2003, applying the statutory provisions pragmatically while permitting the members of the applicant association to continue their business of selling meat. Applicants 1 to 12 of Civil Application No. 11 of 2023 seek to join as party respondents in Public Interest Litigation No. 133 of 2021., In order to comprehend the controversy and consider the grantability of the prayers in the civil applications, a brief visit to the subject‑matter and issues involved in the parent public interest petition is necessary. Public Interest Litigation No. 133 of 2021 pending before the Gujarat High Court was filed for seeking implementation of the guidelines issued by the Supreme Court of India in Writ Petition (Civil) No. 309 of 2003, Writ Petition (Civil) No. 330 of 2001 and other allied petitions. These petitions related to illegal slaughter houses, their impact on animals, public health and environment, and for enforcement of various laws including food safety and standards laws, closure of illegal slaughter houses operating in contravention of statutory provisions, animal transport norms and formation of State Level Committees to oversee implementation of these and related laws., In the public interest petition, the following directions were prayed for: (i) to direct the authorities to implement the guidelines issued by the Supreme Court of India and the Ministry of Environment and Forests in the hearing of Writ Petition (Civil) No. 330 of 2001; (ii) to direct the authorities to implement the Animal Transport Rules, the relevant provisions of the Central Motor Vehicle Rules and the Bombay Animal Preservation (Gujarat) Rules, 1967; (iii) to direct implementation of slaughter house waste disposal management under Environment Laws and the Municipal Solid Waste (Management and Handling) Rules, 2000; (iv) to take steps for closure of illegal slaughter houses in the State of Gujarat not possessing a license under the Food Safety and Standards (Licensing and Registration of Food Business) Regulations, 2011 and other various laws; (v) to direct closure of slaughter houses, meat shops, outlets and hotels operating in violation of the Prevention of Cruelty to Animals (Slaughter House) Rules, 2001 and the Food Safety Standard Act; (vi) to direct the authorities to follow strictly the provisions of the Gujarat Municipality Act and the Gujarat Panchayats Act regarding opening of meat shops, waste disposal and maintenance of hygiene standards; and (vii) to take necessary action against erring slaughter houses, meat shops, hotels and poultry farms under the Environment Protection Laws, Animal Cruelty Laws and the Indian Penal Code., The public interest petitioner also prayed for the appointment of a retired District Judge as convener of the State Committee on Slaughter Houses constituted by the Supreme Court of India in Writ Petition (Civil) No. 330 of 2001, and for the formation of a District Committee under the chairmanship of the concerned District Collector as per the resolution passed by the State Committee on slaughter houses dated 06 January 2014. Two prominent persons were also to be appointed to the State Level Committee for slaughter houses., The petitioner contended that the directions and guidelines of the Supreme Court of India in relation to slaughter of animals and cruelty to them have not been obeyed, and that the requisite no‑objection certifications from the Gujarat Pollution Control Board required under environmental laws, as well as clearances from statutory bodies and local self‑governments, have not been obtained. A large number of meat shops and slaughter houses in the State are operated in violation of the relevant laws and statutory prescriptions, including the Food Safety Standard Laws and Regulations., Before the Supreme Court of India, in the public interest litigation Writ Petition (Civil) No. 330 of 2001 and others, directions were sought against the State Governments, Ministry of Environment and Forests, Union of India, Animal Welfare Board of India and other statutory authorities to effectively implement the provisions of the Prevention of Cruelty to Animals (Establishment and Registration of Societies for Prevention of Cruelty to Animals) Rules, 2000, the Environment Protection Act, 1986, Schedule I, Entry 50, and the Solid Waste (Management) Rules, 2000. The petitioners wanted implementation of other laws relating to animal transportation, animal cruelty and recognition of slaughter houses operating in conformity with applicable statutes, and enforcement of regulatory measures and food safety norms., In orders dated 23 August 2012, 10 October 2012, 17 August 2013 and 1 October 2014, the Supreme Court of India directed the Central Pollution Control Board to initiate action against all slaughter houses not meeting the norms and complying with the abattoir rules. The Supreme Court monitored the issues by directing meetings of the concerned authorities and requested the States to constitute State Committees for slaughter houses, specifying the members and functions. By order dated 30 January 2014, the Chief Justices of the various High Courts were requested to nominate a retired District Judge to serve as convener of the committee for two years and to send quarterly reports., On 22 August 2016, the Supreme Court noted that the Central Pollution Control Board had invited comments from the Slaughter House, Meat and Sea Food Effluent Industry and that the final notification was awaited. Finally, on 17 February 2017, Writ Petition (Civil) No. 330 of 2001 and other connected petitions were disposed of, observing that a compendium of Indian Standards had been prepared in consultation with all stakeholders and that the Union of India was directed to print and circulate the compendium to all State Governments and Union Territories for compliance within six weeks. The Union of India was directed to ensure compliance, and in case of non‑compliance, the petitioners could approach the concerned District Collector or judicial authorities., The present Public Interest Litigation before the Gujarat High Court was filed by a public‑spirited advocate who submitted that letters and representations were addressed to authorities in different districts calling upon them to take steps against illegally run slaughter houses and to take action against meat vendors operating without a license. The petitioner complained of lethargy in implementing the directions and enforcing the provisions pertaining to animal welfare and food safety standards., On 6 September 2022, the Gujarat High Court called upon the State to indicate, by affidavit, whether two prominent persons have been nominated to the State Slaughter House Committee, the number of meetings held by the Committee and the original minutes, the constitution of the District Level Slaughter House Committee and details thereof, and the basis on which persons holding a license under the Food Safety and Standards Rules, 2011 are permitted to slaughter animals in the licensed premises. On 18 October 2022, the Court noted that two prominent persons had been appointed to the State Slaughter House Committee but expressed dissatisfaction with the frequency of the Committee’s meetings, observing that the State authorities were ineffective in implementing the Supreme Court of India’s orders., The Court further observed that the functions of the State Committee for Slaughter Houses, as delineated by the Supreme Court of India, include sending bi‑annual reports to the Central Committee, conducting surprise and random inspections of slaughter houses, issuing directions for compliance, recommending measures for solid waste, water and air pollution, preventing cruelty to animals, modernising slaughter houses, and calling for reports from the District Magistrate or Deputy Commissioner and District Food Safety Inspector on compliance with applicable laws. The affidavit filed by the Deputy Director of Animal Husbandry indicated that steps taken were not in consonance with the observations of the Supreme Court of India. The affidavit filed by the Joint Commissioner, Food and Drugs Control Administration referred to an annexure showing an extensive search and scrutiny of most licensed or registered meat shops across Gujarat, with an inspection report annexed., The Court noted that many meat shops had not been issued a license by the local Panchayat or Municipal Corporations. For example, in the Palanpur circle, shops listed in the annexure at serial numbers 344 to 351 were not licensed, and poultry slaughtering was being carried out in these shops. Notices had been issued but no closure action was taken. The Court also observed that shops at serial numbers 367 to 371 were not registered, yet no steps had been taken to close them on the ground that there was no slaughtering of animals. The larger issue was whether such shops were in a position to sell unstamped meat., The Court observed Sections 207 and 208 of the Gujarat Municipalities Act, 1963, which require that a slaughter house should not be located outside a municipal market. In the city of Palanpur, although the meat shops were not registered, notices were not issued to them; some shops had notices served but closure had not taken place. The Court stated that such non‑compliance would adversely affect private and public health, noting that the unhygienic sale of unstamped meat would adversely affect the health of persons consuming such meat, chicken or fish. The Court directed the filing of a report by the District Legal Service Authority detailing whether any unstamped meat was sold or slaughtering of animals was undertaken without complying with the norms., In paragraph 10 of the order, the affidavit of the Joint Commissioner, Food and Drugs Control Administration was referred to, stating that currently there are eight slaughter houses as per the annexure. Only four slaughter houses are procuring a license; the remaining four, located in the jurisdictions of Vadodara Municipal Corporation, Rajkot Municipal Corporation, Jamnagar Municipal Corporation and Junagadh Municipal Corporation, do not possess any license. The slaughter house at serial number 8 had been sealed by the Gujarat Pollution Control Board in 2010. The slaughter houses at serial numbers 5, 6 and 7 are said to be working and the process for obtaining the license is underway. The Court expressed that orders of the Supreme Court of India were not being fully complied with, but refrained from passing any orders pending reports from the District and Taluka Legal Services Authorities., The Court expressed dissatisfaction that several shops without licenses were still selling meat, chicken etc., and that instead of taking stringent action, the authorities had issued notices and called upon the shops to comply with the Food Safety and Standards Act, 2006 and the Rules made thereunder. The deponent admitted that approximately 344 petty food businesses had indulged in slaughtering of animals in violation of the 2011 regulations and that closure notices had been issued on 20 September 2022. The Court noted that it remained to be seen whether proceedings initiated had been taken to their logical end., The order dated 18 October 2022 concluded with directions that unstamped meat shops and premises selling or slaughtering meat without a license be closed, and that the Commissionerate, Food and Drug, Gujarat State instruct Food Safety Officers or Designated Officers to take steps for closure of such shops or premises and to initiate appropriate criminal or civil prosecution as required under Section 42 of the Food Safety and Standards Act, 2006., In response to the various orders, the competent authorities filed affidavits. In an affidavit dated 28 March 2023 filed by the Deputy Director of Animal Husbandry on behalf of respondents No. 2 and 3, it was stated that, as per the directions of the Supreme Court of India, the State Level Slaughter House Committee had been constituted by a resolution dated 23 October 2012, and that by a resolution dated 20 September 2022, two prominent persons with experience in law, justice and animal welfare had been appointed. The committee had been convening meetings at regular intervals across the State, and sub‑committees at district level had also been constituted., The Gujarat Pollution Control Board, respondent No. 4, in its affidavit mentioned that, based on the pollution index, industrial units are classified as White Category (index up to 20), Green Category (21‑40), Orange Category and Red Category (41‑59 and above 60). Units in the White Category are not required to obtain a consent to operate; an intimation to the Pollution Control Board is sufficient. Slaughter houses are also classified into White, Green and Red Categories, with most retail meat shops and petty slaughter houses falling in the White Category. For White Category units, the requirements are less stringent, and registration is granted upon submission of the prescribed application and undertaking., The State Designated Officer, Food and Drug Control Administration, respondent No. 5, filed a reply placing before the Court a 1,000‑page report prepared by the State Legal Services Authority. The report provides district‑wise details of the number of shops and slaughter houses with and without licenses, those selling stamped meat and unstamped meat, and those found in hygienic and unhygienic conditions. According to the information from the Food and Drugs Control Administration, Gandhinagar, as of 13 February 2023 there were 2,621 slaughter houses, meat processing units and meat shops licensed and registered across the State, of which 940 had been sealed by the Municipal Corporations or Municipalities concerned., The report of the District Level Slaughter House Sub‑Committee showed the following major district details: Ahmedabad Municipal Corporation – 312 shops visited, 283 licensed, 29 without licenses, 15 sealed; 210 shops selling stamped meat, 102 unstamped meat, 58 sealed; 233 shops with hygienic conditions, 79 unhygienic, 14 sealed. Surat Municipal Corporation – 769 shops visited, 192 licensed, 297 without licenses, 297 sealed; 192 shops selling stamped meat, 577 unstamped meat, 416 sealed and 15 demolished; 674 shops with hygienic conditions, 95 unhygienic, all 95 sealed. Vadodara Municipal Corporation – 99 shops visited, 64 licensed, 35 without licenses, 35 sealed; 16 shops selling stamped meat, 18 unstamped meat, all 18 sealed; 13 shops hygienic, 46 unhygienic, 40 sealed and 6 closed. Rajkot Municipal Corporation – 61 shops visited, 1 licensed, 60 without licenses, 15 sealed and 1 closed; 1 shop selling stamped meat, 59 unstamped meat, 15 sealed and 1 closed; 1 shop hygienic, 59 unhygienic, 15 sealed and 1 closed., The Director of Animal Husbandry and Member Secretary of the State Slaughter House Committee, Gandhinagar, filed an affidavit dated 8 February 2023 explaining why all unlicensed shops selling unstamped meat and operating in unhygienic conditions have not been sealed or closed. The affidavit referred to the report of the District Legal Services Authority and detailed the number of shops visited, those with and without licenses, and those selling stamped or unstamped meat. It also provided details of penalties imposed and prosecutions launched., In the above background of facts, controversy and issues, the case and the prayers of the applicants in the civil applications must be addressed. The applicants seek permission to open the seals of their meat shops. They have been in the business of poultry, chicken and meat for more than 35 years, their shops are situated within the limits of the municipal corporation, and they hold licenses issued by the Trade and Health Department, which are renewed periodically by the competent authority of the corporation., The applicants in Civil Applications No. 12 of 2023 and No. 13 of 2023, who are an association of shop owners, submitted details of the inspection carried out by the District Legal Services Authority. They pleaded that if unstamped meat is sold at some shops, it is a failure of the State and its authorities in discharging statutory duties of providing slaughter houses. They argued that no fault could be found with the persons engaged in slaughtering the animals and selling meat, and that there is no proper mechanism to meet the meat needs of citizens and to run the meat‑selling business., In praying to permit the reopening of the meat shops and slaughter houses associated with the slaughtering of small animals such as poultry, goats and sheep, the applicants have invoked their fundamental right to freedom of trade. They submitted that closure of meat shops was illegal and amounted to deprivation and curtailment of their right of free trade under Article 19(1)(g) of the Constitution of India. They also noted that the month of Ramadan is underway, and therefore the State should act liberally to redress the grievance of the applicants by allowing the opening of the shops., The meat shop owners must fulfil the requirements of law and regulations in the following broadly classified areas: (a) registration and licensing of the food business operator as contained in the Food Safety and Standards (Licensing and Registration of Food Businesses) Regulations, 2011; (b) requirement of the sale of stamped meat by the food business operators in retail meat shops as contained in Clause 9.13 of the Hygiene and Sanitary Requirements prescribed under Part 4(b) of Schedule IV of the Food Safety and Standards (Licensing and Registration of Food Businesses) Regulations, 2011; (c) maintenance of hygiene and sanitary conditions of slaughter houses, meat processing units and retail meat shops as stipulated under Part 4 of Schedule IV of the Food Safety and Standards (Licensing and Registration) Regulations, 2011; (d) maintenance of hygiene and sanitary conditions for food business involving fish and fish products as stipulated under Part I and Part II of Schedule IV of the Food Safety and Standards (Licensing and Registration) Regulations, 2011; and (e) pollution and environmental norms and statutory prescriptions for prevention of cruelty to animals in their treatment, transportation etc., For looking into the grievance of the applicants who are meat vendors or owners of meat‑selling shops, the provisions of the Food Safety and Standards Act, 2006, as well as the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011, need to be considered, as all these vendors engaged in the food business must comply with the relevant provisions of the Act and the Regulations. Section 2(j) of the Act defines “food” as any substance, whether processed, partially processed or unprocessed, intended for human consumption, and does not include animal feed or live animals unless they are prepared or processed for placement in the market for human consumption., Section 2(n) defines “food business” as any undertaking, whether for profit or not, carrying out activities relating to manufacture, processing, packaging, storage, transportation or distribution of food. Section 2(o) defines “food business operator” as a person by whom the business is carried on or owned and who is responsible for ensuring compliance with the Act, Rules and Regulations. Section 2(r) defines “food safety audit” as a systematic and functionally independent examination of food safety measures adopted by manufacturing units to determine whether such measures and related results meet the objectives of food safety., Regulation 2.5 of the Food Safety and Standards Regulations, 2011 deals with “Meat and Meat Products”. Regulation 2.5.1(a) defines “animal” as any of the species specified therein, including poultry. Regulation 2.5.1(c) defines “meat” as all edible parts (including edible offal) of any food animal slaughtered in an abattoir that are intended for or have been judged as safe and suitable for human consumption. Regulation 2.5.1(f) defines “meat and food products” as any product prepared from meat and other ingredients through various processing methods. Regulation 2.5.1(g) defines “slaughter” as the killing of food animals for human consumption in an authorised slaughter house. Regulation 2.5.1(h) defines “slaughter house” or “abattoir” as a licensed place or building or premises where food animals are slaughtered humanely in a hygienic manner with proper ante‑mortem and post‑mortem inspection by a veterinarian for human consumption., The Regulations provide for specific hygienic and sanitary practices to be followed by food business operators engaged in manufacturing, processing, storing and selling meat and meat products. A slaughter house is required to obtain a No‑Objection Certificate from the local authority before a license can be granted to operate. The regulations detail general requirements, location of premises, sanitary practices, equipment, personal hygiene, animal welfare, transportation, and precautions to be taken before and after slaughter., The case advanced by the applicants is that they are small meat vendors who sell poultry meat and are not slaughter houses in the strict sense.
id_1366	1	It was submitted that the definition of 'slaughter house', which means killing of food animals for human consumption, brings their small shops within the sweep of the 'slaughter house' as poultry is treated as an animal used for human consumption. It was further submitted that birds – the poultries and chicken – may not be treated as 'animals'. 'Animal' for the definition in section 2(a) includes any living creature. The learned senior advocate for the applicants submitted that an exception may be made for them, as they are small livelihood earners., The submission could not be countenanced since it is not for the Supreme Court of India to rewrite the legislative definition and give effect to it accordingly. The Supreme Court of India stated in Mohammad Hanif Kureshi vs. State of Bihar (All India Reporter 1958 Supreme Court 731) that the legislature is the best judge of what is good for the community, by whose suffrage it comes into existence., It was observed that the courts must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. It must be borne in mind that the legislature is free to recognise the degrees of harm., The shops of the applicants are closed as they have not been complying with the norms of applicable laws. The main Public Interest Litigation is directed against various aspects of compliance with the Food Safety and Standards Act, the Food Safety Regulations, pollution laws as well as food and animal cruelty related laws. By an interim order dated 18 October 2022, the Supreme Court of India asked the competent authorities to ensure compliance with the laws. A larger number of closures were effected by the authority as the owners of the shops and premises were found to be non‑compliant. This order dated 18 October 2022 is not challenged. Yet the present Civil Applications are filed seeking directions for reopening of the meat shops., Permission to reopen the meat shops cannot be granted even though the shop owners remain non‑compliant with the laws. While the indirect prayer before the Supreme Court of India is to relax the norms, such a course is not possible in law. There is no challenge to any of the provisions of the Acts or Regulations. No order could be passed by the Supreme Court of India which may operate contrary to or have the effect of disregarding the statutory prescriptions in respect of food safety and other regulatory norms required to be observed in the larger public good., In seeking prayers in the Civil Application for opening of meat shops and to do the business of selling poultry meat, the fundamental right under Article 19(1)(f) of the Constitution has been pressed into service to freely engage in trade. Any fundamental right is subject to reasonable restrictions provided in Sub‑article (2) to Sub‑article (6). The limitations on the right, when legitimately imposed for public good, public interest or any other valid considerations, are reasonable restrictions. In State of Maharashtra vs. Mumbai Upnagar, Gram Udhyod Sang (1969 (2) Supreme Court Reporter 392), one of the questions was whether the obligation to not sell the carcass but to dispose of it as per the provisions of the Bombay Municipal Corporations Act infringed the fundamental rights of the respondents under Article 19(1)(f) of the Constitution., The Supreme Court of India observed that restriction upon the owner of the carcass involves also a restriction upon the right of the first respondent; having regard to the character of the legislation and its avowed object, the restriction upon the first respondent's right to carry on his occupation or business is a reasonable one within the meaning of Article 19(5) and (6)., The provisions of the Food Safety and Standards Act, 2006 and the Food Safety Regulations applicable to the meat business and meat shops, the regulatory and hygienic measures contemplated for the meat shops and slaughter houses in the said law and the rules, the other laws seeking to fulfill the purpose of insulating the animals from cruelty, pollution and environment laws required to be observed by the meat vendors, are all limiting factors, which will operate as reasonable restrictions on the right of the vendors of the meat and slaughter house owners to run their business. In their degree, they are restrictive measures which do not prohibit running the meat business or slaughter houses but require compliance with the norms., Right to freedom of trade may be a fundamental right, but not a carte blanche. The above laws are enacted and operate in public good and public interest. The freedom to trade or right to do business has to yield to public health norms and the restrictive compulsions needed to be enforced in the larger public good. The right to free trade in food items like meat, or any such food, has to be subservient to public health and food safety requirements., The applicants cannot be permitted to assert unrestricted freedom to do business in meat or to run slaughter houses on the ground of religious occasion when they are otherwise non‑compliant with the norms in law. A bare ground may not be permitted to be advanced to justify laxity in the food safety or pollution norms. The activity of running unlicensed slaughter houses and selling unstamped meat could not be approved or permitted without the stakeholders complying with the applicable laws., Viewed from another angle, for the consumers of any food including meat and meat products, there is a right to have safe food. The right to food with hygiene is also concomitant to Article 21 of the Constitution, as the right to food itself is. This represents the other side of the coin when meat vendors would insist on doing business even if the meat is unstamped or the slaughter house is not licensed or norms compliant. Article 21 also envelopes a right to safe food. Ensuring such safe food is an obligation on the State authorities, which they discharge by implementing and enforcing the food safety norms and other regulatory measures prescribed in the different statutes., The licensing of the meat shop or the slaughter house and ensuring the hygienic operation of such premises go a long way to food safety. In Brihanmumbai Mahanagar Palika vs. Willingdon Sports Club (2013 16 Supreme Court Cases 260), the Supreme Court of India dealt with the issue whether the Sports Club providing catering services to members and guests was obliged to obtain a licence under the provisions of the Bombay Municipal Corporations Act, 1888. It held that it was a catering establishment and an eating house which required to obtain the licence., The Supreme Court noted that the World Health Organization in its publication Safe Food and Better Health (2002 Edition) recognised that availability of safe food is a basic human right and it contributes to health and productivity. The Court explained the importance of licensing for ensuring food safety. Although licensing alone cannot be a foolproof mechanism for ensuring food safety, it is certainly one of the most effective methods of ensuring that quality food is prepared in hygienic conditions and made available to consumers. The licensing system prevents the opening of establishments that pose a threat to the health of the people. The licensing mechanism also provides for penalties in case of non‑compliance with licensing conditions, which could lead to cancellation or suspension of the licence. Such a fear created in the minds of the licensees also ensures that they comply with licensing conditions in order to continue enjoying the benefits of the licence. Thus, a licensing system goes a long way in ensuring food safety thereby guaranteeing the supply of fresh and safe food and preventing the spread of food‑borne diseases., All the meat shops and slaughter houses which are closed by the authorities for the reason that they have failed to comply with the licensing and regulatory norms, food and safety standards, pollution control requirements and any other legal considerations including non‑observance of hygiene imperatives, could hardly be permitted to be reopened on spacious grounds unless they become fully compliant with such norms and regulations. Intervention is not called for by the Supreme Court of India when it comes to abiding by the food safety norms. It would be an overriding principle that the public concerns of hygiene and food safety will have to prevail., The details and figures furnished by the State Authorities in their affidavit in reply, which have been noted above, suggest that the authorities have acted pragmatically. Not all slaughter houses and meat shops are ordered to be closed. Those who are norms compliant are permitted to run their business. Even the shops and premises owners who are given a show‑cause notice or whose shops are ordered to be closed may meet the requirements of law and, after fulfilling the norms, may approach the competent authority or competent committee seeking to reopen their business premises or shops. The State Slaughter Committee and District Level Committees are functional., For all the foregoing reasons, except granting prayer in Civil Application No. 11 of 2023, allowing the applicants thereof to join as parties in the main writ petition (Public Interest Litigation), no relief in the rest of the Civil Applications could be granted., It is observed that any meat shop owner, meat vendor or slaughter house owner may approach the competent authority or competent committee by showing that it has ensured compliance of all the laws and regulations as may be applicable. In all such cases, the competent authority or the State or District Level Committee, as the case may be, shall permit the shop or slaughter house to be reopened, permitting the owner or vendor to run the business by continuing to comply with the business norms., It is also observed that if any such application is made by any shop owner or vendor, it shall be dealt with expeditiously without undue delay., All the Civil Applications are disposed of accordingly.
id_1368	0	CRR 1420 of 2019 Debarati Banerjee The State of West Bengal & Anr. For the petitioner: Mr. Ayan Bhattacharya, Mr. Arindam Dutta, Mr. Kausik De, Mr. Mohini Majumder, Mr. Raghav Munshi. For the Opposite Party No.2: Mr. Prosenjit Mukherjee, Mr. Nirmalya Kumar Das, Ms. Poulami Dutta. Finally heard on 17 July 2023. Judgment on 17 August 2023. Ajoy Kumar Mukherjee, Judge., This application under section 482 of the Code of Criminal Procedure, 1973 has been preferred seeking quashing of the proceeding in respect of the present petitioner, being complaint case no. 632 of 2018, pending before the learned Judicial Magistrate, Third Court, Suri, Birbhum. The petitioner states that he is the Manager of the Human Resources department of IDBI Bank, Shakespeare Sarani Branch. Ms. A. Dutta, a Grade‑A employee, was posted at the Suri Branch. Ms. Dutta made a complaint against opposite party No. 2 and the Branch Head forwarded it to the Regional Head, who in turn forwarded it to the higher authority. The complaint was of sexual harassment at the workplace and an internal complaint committee, as required by law, started an enquiry. The petitioner submits that he was neither a member of the internal complaint committee nor a decision‑making authority regarding its findings. In the meantime opposite party No. 2 was transferred from Suri Branch, West Bengal to a branch in the state of Tripura on an administrative basis. According to the transfer policy of IDBI Bank, officers with more than five years of service at a station are normally liable for transfer outside the station. Since opposite party No. 2 had completed six years of service at Suri Branch and there was an urgent requirement of an experienced officer in the Tripura Branch, the transfer was effected as an administrative measure., The petitioner was surprised to receive a summons in December 2018, wherein he learned that opposite party No. 2 had filed a suit for defamation before the Civil Judge (Senior Division), Durgapur, alleging a false and concocted story that the petitioner had hatched a conspiracy to ensure the transfer of opposite party No. 2 and prayed for a decree of Rs 5,00,000 against each of the defendants, including the petitioner. Subsequently the petitioner received another summons indicating that opposite party No. 2 had filed the present criminal proceeding against the petitioner and other accused persons., In the written complaint, opposite party No. 2 contended that he was posted as Assistant Manager of IDBI Bank, Suri Branch, and accused persons 1 to 4 (the petitioner is accused No. 2) had an unholy nexus to cause his removal from the branch. It was alleged that accused No. 1 (Ms. Dutta), on instruction of the other accused persons, lodged a false complaint of physical molestation. It is further alleged that, following the complaint against opposite party No. 2, the accused persons damaged his character. Accused No. 3 forwarded Ms. Dutta’s complaint to accused No. 2 (the petitioner), and opposite party No. 2 sent the complaint to accused No. 4, after which the impugned transfer was effected. Further allegation is that accused No. 1 and 3 caused physical and mental torture upon opposite party No. 2 and, due to such illegal activities and conspiracy, opposite party No. 2 was transferred to Tripura., The learned Chief Judicial Magistrate, Suri, Birbhum, after considering the allegations in the written complaint, took cognizance and, after taking initial deposition, issued summons under section 204 of the Code of Criminal Procedure. Summons were issued to accused No. 1 and 3 under sections 323, 506 and 120B of the Indian Penal Code, and to the petitioner (accused No. 2) under sections 506 and 120B of the Indian Penal Code. The complaint against accused No. 4 was dismissed by the same order., Mr. Ayan Bhattacharya, learned counsel appearing on behalf of the petitioner, submits that the impugned order is illegal and untenable in law and is based on arbitrary misuse of law. The petitioner is innocent and has been falsely implicated as he has not done anything that may be termed an offence punishable under the penal law of India. He further submits that, on plain reading of the complaint, no charge of criminal intimidation or conspiracy has been brought against the petitioner by opposite party No. 2. In fact, the complaint has been filed as a counter‑blast to the transfer and disciplinary proceeding initiated against opposite party No. 2, and the petitioner has been made a scapegoat. The learned Chief Judicial Magistrate, relying upon a Xerox copy of a transfer order—the only allegation in support of opposite party No. 2’s charges—issued process against the petitioner under section 204 of the Code of Criminal Procedure., Mr. Bhattacharya further submits that the order of cognizance is bereft of any reasoning, thereby showing non‑application of mind. Moreover, in view of the intrinsic hollowness of the impugned complaint, no cognizance could have been taken by the concerned magistrate. Law is well settled that an order of cognizance, which is the basis of initiation of proceedings, must be preceded by proper application of judicial mind and the court is not to act as a post office. He contended that under section 200 of the Code of Criminal Procedure, examination of a public servant is exempted, but for taking cognizance under section 190(1)(a), such examination is not exempted even in the case of a public servant. Thus, taking cognizance under section 190 of the Code of Criminal Procedure is not a mechanical process; before passing such an order the magistrate must determine whether a prima facie case exists., Mr. Bhattacharya argued that it is apparent from the complaint that the petitioner (accused No. 2) is a resident of a place lying outside the territorial jurisdiction of the concerned magistrate. Under section 202 of the amended Code of Criminal Procedure, any magistrate, on receipt of a complaint where the accused resides beyond the area in which the magistrate exercises jurisdiction, shall postpone the issue of process against the accused and either enquire the case himself or direct an investigation to be carried out by a police officer or such other person as he thinks fit, for the purpose of deciding whether there are sufficient grounds for proceeding. This mandatory provision must be scrupulously followed to ward off false complaints against persons residing far off, with a view to save them from unnecessary harassment. In the present case there is no cogent material against the petitioner that can constitute criminal intimidation or criminal conspiracy. The learned Chief Judicial Magistrate issued a summons to the petitioner, who holds a responsible post, without appreciating that summoning an accused in a criminal case is a serious matter and that criminal law cannot be set in motion as a matter of course. The magistrate did not consider that the transfer order was not issued by the petitioner but only communicated by him to opposite party No. 2, and that he never participated in the decision of transfer. Consequently, the basic ingredients of criminal conspiracy or criminal intimidation are totally absent., Learned counsel appearing on behalf of opposite party No. 2 submits that the petitioner, without conducting any enquiry and at the instigation of accused No. 1, passed the transfer order alleging that opposite party No. 2 was involved in the allegations made by accused No. 1. The petitioner, for the purpose of initiating disciplinary proceeding, initially accepted the genuineness of the complaint made by accused No. 1 and took steps to tarnish the character of opposite party No. 2. Knowing that opposite party No. 2 had submitted an application stating that he was physically ill, his wife had given birth to a new baby, and a doctor had advised him not to stay in hilly areas, the petitioner intentionally and purposefully gave a bad imputation against his reputation and transferred him from West Bengal to the remote hilly area of Tripura. No step under the Sexual Harassment at Workplace Act, 2013 has been taken, but at the instigation of other accused persons, the petitioner issued the transfer order as punishment, holding that opposite party No. 2 had committed the offence. The petitioner’s actions are within the meaning of punishable offence under sections 506 and 120B of the Indian Penal Code. As the superior authority, without conducting any enquiry, the petitioner put opposite party No. 2 in fear and forced him to join his new posting. The petitioner threatened opposite party No. 2 for taking penal action on the basis of the allegation made by accused No. 1. Information obtained under the Right to Information Act, 2005, shows that opposite party No. 2 was transferred on receipt of the complaint from accused No. 1, which was forwarded by the petitioner to the member secretary for necessary action, and at the petitioner’s instigation the transfer order was issued, though neither departmental enquiry nor any proceeding under the 2013 Act was initiated. Conversely, the information indicates that the concerned authority decided that, in view of the fact that opposite party No. 2 had already been transferred, no action on the pending enquiry was necessary. Due to such false allegation and conspiracy of the accused persons, opposite party No. 2 suffered irreparable loss and injury to his character and reputation, and thus the petitioner and other accused persons have committed offences within the meaning of sections 506 and 120B of the Indian Penal Code. By way of supplementary affidavit, opposite party No. 2 further contended that, under the Officers Placement and Transfer Policy (OPTP), the transfer does not fall within the policy guidelines and is the outcome of a conspiracy. The opposite party attempted to seek clarification on whether the transfer was administrative, but the concerned authority gave no reply, indicating that the transfer was not administrative but issued at the behest of the petitioner, who is the sole authority for such transfer based on the complaint lodged by accused No. 1. Closed Circuit Television footage dated 23 July 2018 clearly shows that no incident of sexual harassment took place at the workplace. The enquiry under the 2013 Act has not been completed despite more than ninety days, and disciplinary proceeding against opposite party No. 2 has been stayed by the City Civil Court. Hence, it is a conspiracy that requires thorough trial before the magistrate, and dismissal of the present proceeding against the petitioner does not arise., At the outset, reference is made to the written complaint filed by the complainant against the present petitioner, Debarati Banerjee, shown as accused No. 2. Relevant portions are as follows: (a) Paragraph 3 alleges that, owing to the honest and diligent work of the complainant, an obstacle was created for accused persons 1 to 4 in their unholy nexus, and to remove the complainant, an illegal transfer was effected as part of a concerted criminal conspiracy. (b) Paragraph 4 alleges that, as part of the sinister design, accused No. 1, acting on instructions of the other accused persons, lodged an unfounded and false allegation of physical molestation against the complainant to the local banking authority (accused No. 3). (c) Paragraph 5 alleges that, because the complainant obstructed the unholy deeds of accused persons 1 to 4, the complainant became a helpless victim of the criminal conspiracy. (d) Paragraph 6 alleges that accused persons 1 to 4 wove a false story against the complainant, assassinating his character and good image, causing serious mental trauma. (e) Paragraph 7 alleges that accused No. 3 accepted the baseless complaint of accused No. 1 with malafide intention, and thereafter accused No. 2 (the petitioner) consented to send it for further misdeeds, which finally reached accused No. 4, resulting in an impugned transfer order three days after the complaint was lodged. (f) Paragraph 9 alleges that the accused persons imputed false statements against the complainant’s good image and reputation, causing his transfer from Suri Branch, West Bengal to Tripura, so that no one may disturb their illegal activities and unholy nexus., The learned Chief Judicial Magistrate took cognizance of the complaint and recorded the initial deposition of two witnesses, namely the complainant (opposite party No. 2) and his wife. Relevant portion of the complainant’s deposition is as follows: “Accused No. 1 has complained of serious charges of molestation against me to accused No. 2 and 3. These two accused did not cross‑verify, did not give me notice or hear me. Accused No. 3 threatened that I would be transferred to a far‑off place. On 29 July 2018, I received a transfer order without any hearing, at 7 p.m., to Tripura, Killa District in Gomoti, which is 2,000 kilometres from this place. I have medical disabilities known to the office. I allege a conspiracy against me by the accused persons through false allegations that are being circulated in every branch. The accused persons have defamed me and are ruining my name and career. I am praying for justice. The accused persons have also threatened me with dire consequences.”, The wife of the complainant, in her initial deposition, stated: “My husband told me about some incidents recently. On 30 August, he told me that he had been transferred. He works at IDBI Bank, Suri Branch. He told me about a serious false allegation raised against him by his colleague, Smt. A. Dutta (accused No. 1). He showed me the allegation. He said he was being pressurised for giving work relaxation which he could not legitimately give. The false allegation was about physical molestation inside the branch premises and in CCTV surveillance. In a conspiracy against him, the accused persons transferred him to a distant place. The accused persons also threatened and assaulted my husband. This was told to me by my husband and so he has filed this case.”, Accordingly, based on the allegations in the written complaint and the initial deposition of witness No. 1, the learned Chief Judicial Magistrate passed the impugned order dated 19 March 2019, issuing process against the petitioner (accused No. 2) under sections 506 and 120B of the Indian Penal Code. In support of the issuance of process under section 506, the magistrate contended that section 506 may be the more applicable provision for taking cognizance, without providing further observation as to why the allegation and the deposition make out a case under section 506 against the petitioner., Section 506 of the Indian Penal Code deals with punishment for criminal intimidation. The term ‘criminal intimidation’ is defined in section 503 of the Indian Penal Code, and the essential ingredients of the offence are that the accused threatened someone with injury to his person, reputation or property, with intent to cause alarm to the complainant and to compel the complainant to perform any act which he is not legally bound to do., The term ‘injury’ is defined in section 44 of the Indian Penal Code, which states that ‘injury’ denotes any harm whatsoever illegally caused to any person, in body, mind, reputation or property. Accordingly, injury must be caused illegally to the person’s body, mind, reputation or property., In the present case, the legality and validity of the transfer order cannot be the subject matter of consideration before a criminal court. However, opposite party No. 2, in his supplementary affidavit, has filed the relevant Officers Placement and Transfer Policy (OPTP), which defines transfer as a movement or relocation of an officer from one position, location or centre in India, necessarily involving a change of posting. Clause 16 of the policy stipulates that, notwithstanding anything mentioned above, the bank shall reserve the right to retain or transfer any officer to any of its branches or centres at any time to meet exigencies and administrative requirements, and need not be bound by the provisions of this policy., The petitioner submitted that the transfer was effected because the newly opened branch at Tripura required an experienced officer. Accordingly, the order of transfer, even if signed by the petitioner, does not constitute criminal intimidation. There is no evidence that the petitioner participated in the decision of transfer, and thus the allegation of conspiracy against the petitioner does not attract. A bare reading of section 503 of the Indian Penal Code shows that there must be an element of threat to cause injury to a person’s reputation or property for the provision to apply. No such threat by the petitioner is alleged., Section 120B of the Indian Penal Code prescribes punishment for the offence of criminal conspiracy, which is committed when two or more persons agree to do an illegal act or to do a legal act by illegal means. In the present case, the order of transfer is neither an illegal act nor was it passed by adopting any illegal means by the petitioner., The ingredients of the offence of criminal conspiracy require an agreement to commit an offence. There is nothing in the allegation that the petitioner (accused No. 2) made any agreement with the other accused persons to commit any offence. In fact, there is absolutely no evidence that the petitioner agreed to commit any illegal act or a legal act by illegal means. If the bank authority decides to transfer an employee from one posting to another, even in a distant state, which is permissible under the transfer policy, it does not constitute an offence punishable under section 506 of the Indian Penal Code, since it does not amount to a threat to cause injury to the complainant’s reputation or property., Thus, the contents of the allegation in the written complaint do not fall within the ambit of threat with intent to cause injury to the opposite party’s reputation or property. Asking an employee to join his place of posting immediately cannot be construed as criminal intimidation or criminal conspiracy. The complainant may have other remedies, such as representation on health grounds, but the entire complaint, even if presumed correct, cannot be brought within criminality., It is settled law that an order of cognizance, which forms the basis of initiation of proceedings, cannot be made mechanically; it requires the exercise of judicial mind. The court must not act as a post office, merely approving a complaint without applying proper judicial mind and without considering whether the complaint itself constitutes any offence against a particular accused. This principle is well established in Pepsi Foods Limited and another v. Special Judicial Magistrate and another (1998) 5 SCC 749 and subsequent decisions. In paragraph 28 of the Pepsi Foods Limited case, the Apex Court observed: ‘Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set in motion as a matter of course.’ The magistrate must examine the nature of the allegations, the oral and documentary evidence, and determine whether there is sufficient basis to bring a charge against the accused. The magistrate is not a silent spectator at the time of recording preliminary evidence before summoning the accused., Even taking cognizance under section 190 is a judicial act that requires proper application of judicial mind. It is not a mere formal action. As soon as the court applies its mind to the suspicion of commission of an offence, cognizance is said to have been taken to commence criminal proceedings. The order of the magistrate shows no reason for taking cognizance against the petitioner, thereby indicating non‑application of judicial mind., Accordingly, before issuing process, the magistrate must record satisfaction that a prima facie case exists against the petitioner (accused No. 2) and that his role is essential for initiating the criminal proceeding. The magistrate’s role is not that of a silent spectator during the recording of preliminary deposition before issuance of process under section 204 of the Code of Criminal Procedure. The magistrate is duty‑bound to scrutinize the deposition to ascertain the truthfulness of the allegation and to examine whether any offence is prima facie committed by the accused. The order does not indicate that the magistrate recorded satisfaction of a prima facie case against the petitioner. In the absence of specific allegation, merely because the petitioner holds a higher post, she cannot be vicariously liable unless specific averments against her role are made. Hence, issuance of process against the petitioner under sections 506 or 120B is perverse and unsustainable., Another important aspect is jurisdiction. In the written complaint filed by opposite party No. 2 before the Chief Judicial Magistrate, Suri, Birbhum, the address of accused No. 2 is shown as Manager (HRD), Kolkata, Zonal Officer, IDBI Bank, House, 44 Shakespeare Sarani, Kolkata‑17, which is not within the jurisdiction of the Chief Judicial Magistrate, Birbhum. Under the amended provision of section 202 of the Code of Criminal Procedure, where the accused resides beyond the area in which the court exercises jurisdiction, the magistrate shall postpone issuance of process and either enquire the case himself or direct an investigation by a police officer or other person as he thinks fit, to decide whether sufficient grounds exist for proceeding. This amendment, incorporated by the Criminal Procedure (Amendment) Act, 2005, prevents innocent persons residing outside the territorial jurisdiction of the magistrate from harassment by false complaints. The expression ‘shall’ in section 202 makes it mandatory before summons are issued against an accused living beyond the magistrate’s jurisdiction. In the present case, despite the petitioner residing outside the territorial jurisdiction, the magistrate issued a summons without ordering any investigation as mandated under section 202., Accordingly, the petitioner prays that the impugned criminal proceeding be quashed as it relates to the petitioner (accused No. 2).
id_1368	1	In view of the aforesaid discussion I find that the opposite party no. 2 herein failed to make out a prima facie case against the present petitioner and he had filed the present complaint to wreck vengeance by abusing the process of court in a case where the dispute relates to service condition of an employee in a Private Bank, which has its specific transfer policy. In such view of the matter continuation of the present proceeding against the present petitioner being complainant case no. 638 of 2018 under section 506/120B of the Indian Penal Code would be an abuse of process of court and therefore is liable to be quashed., Accordingly Complaint case no. 632 of 2018, pending before the Judicial Magistrate Third Court, Suri, Birbhum is hereby quashed in respect of present petitioner accused no. 2 only., Criminal Revision Report 1420 of 2019 is thus allowed. Connected Application accordingly disposed of. Urgent photostat certified copies of this order may be delivered to the learned advocates for the parties, if applied for, upon compliance of all formalities.
id_137	0	Handbook on Combating Gender Stereotypes 4Our oath as judges mandates that we perform the duties of our office without fear or favour, affection or ill‑will. The oath demands that we discharge our functions with impartiality and objectivity, applying the law to every case before us. A judge’s oath demands rejecting improper attempts to influence their decision‑making. The oath also requires a judge to put aside any preconceived notions about the parties before the court. Relying on predetermined stereotypes in judicial decision‑making contravenes the duty of judges to decide each case on its merits, independently and impartially. In particular, reliance on stereotypes about women is liable to distort the law’s application to women in harmful ways. Even when the use of stereotypes does not alter the outcome of a case, stereotypical language may reinforce ideas contrary to our constitutional ethos., Language is critical to the life of the law. Words are the vehicle through which the values of the law are communicated. Words transmit the ultimate intention of the lawmaker or the judge to the nation. However, the language a judge uses reflects not only their interpretation of the law, but their perception of society as well. Where the language of judicial discourse reflects antiquated or incorrect ideas about women, it inhibits the transformative project of the law and the Constitution of India, which seek to secure equal rights to all persons, irrespective of gender., The Code of Civil Procedure 1908 previously referred to persons without financial means as paupers. In recognition of the fact that language conveys certain ideas about its subject and can either recognise or diminish the dignity of such persons, the statute was amended and the word pauper was replaced with the word indigent. This amendment to the statute did not have a strictly legal purpose but was meant to recognise the humanity of the people it referred to. Similarly, many words or phrases that are used in legal discourse (both by lawyers and by judges) reflect archaic ideas with patriarchal undertones., FOREWORD BY THE HANDBOOK ON COMBATING GENDER STEREOTYPES\n\nThe Handbook on Combating Gender Stereotypes aims to assist judges and the legal community in identifying, understanding and combating stereotypes about women. It contains a glossary of gender‑unjust terms and suggests alternative words or phrases which may be used while drafting pleadings as well as orders and judgments. The Handbook identifies common stereotypes about women, many of which have been utilised by courts in the past and demonstrates why they are inaccurate and how they may distort the application of the law. The intention is not to criticise or cast doubt on past judgments but merely to show how stereotypes may unwittingly be employed. Finally, it encapsulates the current doctrine on key legal issues which may be relevant while adjudicating certain cases, particularly those concerning sexual violence., I sincerely hope that this Handbook is widely read by all members of the legal profession in India to ensure that legal reasoning and writing is free of harmful notions about women. The Handbook will give a fresh impetus to our quest towards a gender‑just legal order, and will be a crucial document to ensure that courts can deliver equal and impartial justice to individuals of all genders., The Handbook was conceptualised during the COVID‑19 pandemic and was originally envisaged as a part of the knowledge component of the e‑Committee of the Supreme Court of India. It would not have been possible to prepare and release the Handbook without the assistance of many individuals. I thank the Social Justice Sub‑Committee of the e‑Committee (Justice Moushumi Bhattacharya, Judge, Calcutta High Court; Justice Prathiba Singh, Judge, Delhi High Court; and Professor Jhuma Sen in particular) for their initial draft. I would like to extend my appreciation to Doctor Sukhda Pritam (Director, Centre for Research and Planning, Supreme Court of India), Mister Anurag Bhaskar (Deputy‑Registrar, Centre for Research and Planning, Supreme Court of India), Mister Vasudev Devadasan (Research Consultant, Centre for Research and Planning, Supreme Court of India) for their valuable inputs and editing, as well as for coordinating the publication of the Handbook. Ms. R Arulmozhiselvi, Member (Human Resources, e‑Committee, Supreme Court of India) has tirelessly coordinated the preparation of the Handbook from the time of its inception. Lastly, I thank my law clerks Ms. K. Nivedhitha, Ms. Spoorthi Cotha, and Mister Pratik Dixit for their invaluable contributions to the Handbook., Doctor Justice Dhananjaya Y. Chandrachud, Chief Justice of India, This Handbook offers guidance on how to avoid utilising harmful gender stereotypes, in particular those about women, in judicial decision making and writing. Each one of us sometimes employs stereotypes in our thoughts, words, and actions. We may rely on stereotypes inadvertently, because stereotypes are often internalised and ingrained in our thinking due to societal, cultural, and environmental conditioning. This can make it difficult to identify and avoid relying on stereotypes. However, challenging and overcoming stereotypes is essential to ensuring an equal, inclusive, and compassionate society. With respect to the judiciary, it is vital that judges not only avoid relying on stereotypes in their decision making and writing, but also actively challenge and dispel harmful stereotypes. If harmful stereotypes are relied on by judges, it can lead to a distortion of the objective and impartial application of the law. This will perpetuate discrimination and exclusion., To raise awareness against the utilisation of harmful stereotypes, particularly those prejudicial to women, this Handbook aims to explain what stereotypes are, and help judges identify and avoid such stereotypes by: identifying language that promotes gender stereotypes and offering alternative words and phrases; identifying common reasoning patterns that are based on gender stereotypes (particularly about women) and discussing why they are incorrect; highlighting binding decisions of the Supreme Court of India that have rejected these stereotypes and can be utilised by judges to dispel gender stereotypes., The handbook provides a table of stereotype‑promoting language with suggested alternative language, for example: ‘adulteress’ replaced by ‘woman who has engaged in sexual relations outside of marriage’; ‘bastard’ replaced by ‘non‑marital child or a child whose parents were not married’; ‘effeminate’ when used pejoratively replaced by gender‑neutral descriptors such as ‘confident’ or ‘responsible’; ‘eve teasing’ replaced by ‘street sexual harassment’; ‘faggot’ replaced by ‘homosexual or bisexual’; ‘hermaphrodite’ replaced by ‘intersex’; ‘harlot’ replaced by ‘woman’; ‘hooker’ replaced by ‘sex worker’; ‘housewife’ replaced by ‘homemaker’; ‘ladylike’ replaced by a gender‑neutral description of behaviour; ‘mistress’ replaced by ‘woman with whom a man has had romantic or sexual relations outside of marriage’; ‘provocative clothing’ replaced by ‘clothing or dress’; ‘ravished’ replaced by ‘sexually harassed, assaulted or raped’; ‘slut’ replaced by ‘woman’; ‘spinster’ replaced by ‘unmarried woman’; ‘transsexual’ replaced by ‘transgender’; ‘whore’ replaced by ‘woman’; and other similar revisions., A. Understanding stereotypes\n\nA stereotype is defined as a set idea that people have about what someone or something is like, especially an idea that is wrong. Stereotypes are typically held against individuals by virtue of their membership of a group. They are assumptions or beliefs that individuals belonging to specific social groups have certain characteristics or traits. For example, people in many countries believe that all Indians are good at science and mathematics. Similarly, even within India, people may believe that individuals from certain regions look a particular way or eat a particular type of food. People are constantly subjected to stereotypes based on their nationality, region, caste, gender, disability, sexuality, skin colour, physical appearance, and race., How do stereotypes function? Reliance on stereotypes is often subconscious. In other words, we may rely on stereotypes when interacting with individuals even without intending to do so. Stereotypes influence our thoughts and actions towards other people. They prevent us from viewing the individual before us as a unique person with their own characteristics and lead us into making inaccurate assumptions about them. Stereotypes can prevent us from understanding the reality of a situation and can cloud our judgment. On a micro‑level, stereotypes lead to exclusion and discrimination in workplaces, educational institutions, and public places. For example, even where male and female employees are of the same designation, a female employee may be tasked with administrative duties such as organising office events or buying stationery, while male employees are exempted from such tasks., Research has shown that most of us hold some subconscious biases which stem from stereotypes. While we all like to believe that we are unbiased and fair, chances are that each one of us relies on stereotypes in some form or the other in our professional and personal life. Take the test at https://implicit.harvard.edu/implicit/takeatest.html to discover whether you have any implicit biases. The results may surprise you!, The mental health or professional performance of members of a stereotyped group can be affected because they are aware that they are being viewed in a particular manner. For example, there is a stereotype that individuals from oppressed castes are not as accomplished in school or university in comparison to individuals from dominant castes. This may cause members of oppressed castes to face additional mental pressure when writing an examination. A student from an oppressed caste who is aware of the stereotype about their community will not only have to worry about doing well in the examination, but also be burdened with the additional worry that if they perform badly, it will reinforce the stereotype concerning their community. This added pressure may have an adverse impact on their performance in the examination., II. Impact of stereotypes on judicial decision making\n\nLike any person, a judge may also unconsciously hold or rely on stereotypes. If a judge relies on preconceived assumptions about people or groups when deciding cases or writing judgments, the harm caused can be enormous. Stereotypes impact the impartiality and the intellectual rigour of judicial decisions where they cause judges to ignore or bypass the requirements of law or distort the application of the law vis‑vis specific persons or groups. Even when judges reach legally correct outcomes, the use of reasoning or language that promotes gender stereotypes undermines the unique characteristics, autonomy, and dignity of the individuals before the Supreme Court of India. Using stereotypes, instead of objectively evaluating the situation, goes against the constitutional principle of equal protection of laws, which posits that the law should apply uniformly and impartially to every individual, irrespective of their membership to a group or category. The use of stereotypes by judges also has the effect of entrenching and perpetuating stereotypes, creating a vicious cycle of injustice. For example, a common stereotype is that individuals from low‑income backgrounds are less trustworthy and more likely to commit crime. This is a harmful stereotype, as it may lead to the social exclusion of individuals from low‑income backgrounds. However, if a judge relies on this stereotype in decision making, the harm may be magnified. Consider a judge who has to decide the bail application of two individuals charged with the same offence, the first individual from a low‑income background and the second from an affluent background. The judge may set a higher bail amount or more stringent bail conditions on the first individual purely because the judge holds the mistaken belief that the individual from a low‑income background is more susceptible to flee or commit further crimes. This is an example of how stereotypes in judicial reasoning can prejudice a person's individual rights and be discriminatory. Further, if the individual cannot afford the bail amount and is jailed, the stereotype is effectively reinforced and perpetuated. This is why judicial reasoning must be based on the individual merits of every case and not on stereotypes., Can stereotypes be overcome? Yes, stereotypes can be overcome. Research has shown that we can avoid much of the negative impact of stereotyping by recognising that we hold certain implicit biases or rely on certain stereotypes, and by making a conscious and deliberate effort to overcome or resist the implicit bias or stereotype., B. Understanding Gender Stereotypes\n\nAs the name suggests, gender stereotypes are assumptions about the characteristics that individuals of a particular gender have, or the roles that they should perform. This is often seen in assumptions about the different characteristics men and women are believed to possess, and the roles they are expected to perform. For example, one of the most common stereotypes about girls or women is that they like the colour pink. While this stereotype may not have an impact on judicial decision‑making, other stereotypes may influence the outcome of a case. For instance, some people believe that women lie about men having sexually assaulted or raped them. If a judge were to utilise such a stereotype when deciding a case, it may cause them to unfairly discard or discount the testimony of a survivor or victim of sexual assault, leading to grave injustice., The most common kinds of gender stereotypes that concern women are: stereotypes based on the so‑called inherent characteristics of women; stereotypes based on the gender roles of women; and stereotypes related to sex, sexuality, and sexual violence. Each of these three types of stereotypes is discussed below., (i) Stereotypes based on the so‑called inherent characteristics of women\n\nAssumptions are held about the characteristics of men and women which are believed to be inherent to each group. These assumptions extend to their emotional, physical, and cognitive capabilities. The table lists a few assumptions about the traits of women and explains why such notions are incorrect., What do we mean when we say gender? While sex refers to the biological attributes of individuals, gender refers to socially constructed roles, behaviours, expressions, and identities of girls, women, boys, men, and gender‑diverse individuals. Gender identity is not limited to a binary (girl/woman and boy/man) but rather exists on a spectrum and can evolve over time. Further, gender is a social construct, and includes the norms, behaviours, and roles associated with a particular gender identity. An individual’s gender identity profoundly influences self‑perception, interpersonal dynamics, and the distribution of power and resources in society. While this glossary primarily deals with stereotypes concerning men and women, it is important to recognise that harmful stereotypes can exist with respect to any gender identity., Stereotype – Reality\n\nWomen are overly emotional, illogical, and cannot take decisions – A person’s gender does not determine or influence their capacity for rational thought.\nAll women are physically weaker than all men – While men and women are physiologically different, it is not true that all women are physically weaker than all men. Strength depends on many factors such as profession, genetics, nutrition, and physical activity.\nWomen are more passive – Both men and women can be passive; it is not a rule that women are more passive than men.\nWomen are warm, kind, and compassionate – Compassion is an acquired characteristic unique to each individual; individuals of all genders can possess compassion.\nUnmarried women (or young women) are incapable of taking important decisions about their life – Marriage has no bearing on an individual’s ability to take decisions. The law defines specific ages for persons to consent to certain activities, and all individuals of or above this age are deemed capable of taking such decisions irrespective of marriage.\nWomen of oppressed or marginalised communities have diminished cognitive capabilities or a limited understanding of the world – Community does not determine cognitive capabilities or understanding of the world.\nAll women want to have children – Not all women want to have children; deciding to become a parent is an individual choice., Citations: Writ Petition (Criminal) 297 of 2016, 24 May 2017, Kerala High Court; Criminal Revision 316 of 1981 (Orissa High Court, 15 February 1985); Civil Miscellaneous Writ Petition 26909 of 1996 (High Court of Allahabad, 9 January 1997)., (ii) Stereotypes based on gender roles\n\nSociety ascribes specific roles to specific genders, most often seen in the context of men and women. These gender roles are products of social construction and social understandings. For example, men are often believed to be more suited to professional jobs whereas women are believed to be more suited to care for their families. Even when women pursue professional careers, the social behaviour and characteristics expected of them in the private sphere (e.g., performing domestic tasks such as cooking or cleaning) continue to be expected of them. Women are also often expected to behave, dress, and speak in a manner that is compliant with the so‑called inherent characteristics of women and the corresponding gender roles. Any deviation from these gendered roles leads to social stigmatisation., Age of majority and autonomy\n\nA 24‑year‑old woman’s parents initiated habeas corpus proceedings seeking the production of their daughter who had married and moved away from them. In allowing the petition, the Kerala High Court observed, ‘A girl aged 24 years is weak and vulnerable, capable of being exploited in many ways.’ The Court, exercising parens patriae jurisdiction, was concerned with the welfare of a girl of her age. The Supreme Court reversed this decision in Shafin Jahan v. Asokan K.M. (2018: INSC: 222), noting that the High Court had lost sight of the fact that she is a major, capable of her own decisions and entitled to the right recognised by the Constitution to lead her life as she pleases. The Supreme Court further ruled that the superior courts, when they exercise their jurisdiction parens patriae, do so in the case of persons who are incapable of asserting a free will such as minors or persons of unsound mind. The exercise of that jurisdiction should not transgress into the area of determining the suitability of partners to a marital tie., The table below outlines some common stereotypes about the gender roles ascribed to men and women, and why they are incorrect. For example, the stereotype that women are more nurturing and better suited to care for others is inaccurate because people of all genders are equally suited to caring. The stereotype that women should do all household chores is incorrect; individuals of all genders are capable of doing house chores. The stereotype that wives should take care of their husband’s parents is inaccurate; the responsibility of caring for elderly family members falls equally on individuals of all genders. The stereotype that women who work outside the home do not care about their children is false; parents of all genders may work outside the home while also caring for their children., Judicial reasoning and language based on gender roles\n\nIn an appeal against a decree for restitution of conjugal rights, it was admitted that the husband regularly beat the wife. The husband’s justification for this conduct was that (i) the husband wanted his breakfast at 6 AM but the wife only woke up at 7 AM; and (ii) the wife did not dress according to the husband’s wishes. While the High Court set aside the decree for restitution of conjugal rights, it observed, ‘As a devoted wife, it was no doubt the wife’s duty to get up before her husband was to leave for his work, but if she did not, the husband was not entitled to beat her. Likewise, as the dutiful wife, she should have respected the wishes of her husband as to the particular clothes to be put on a particular occasion. But if she did not, again, the husband had no right to beat her.’ This example demonstrates how even when arriving at a legally correct outcome, judicial reasoning can reinforce harmful stereotypes about the roles of women. The judicial reasoning reinforces the stereotype that it is a woman’s exclusive responsibility to perform household chores and dress according to her husband’s expectations. Further, the use of language such as ‘dutiful wife’ accentuates these harms., Women who are also mothers are less competent in the office because they are distracted by childcare. Women who have double duty, i.e., work outside the home and raise children, are not less competent in the workplace. Women who do not work outside the home do not contribute to the household or contribute very little in comparison to their husbands. Women who are homemakers perform unpaid domestic labour such as cooking, cleaning, washing, household management, accounts and care work such as caring for the elderly and for children, helping children with their homework and extracurricular activities. The unpaid labour performed by women not only contributes to the household’s quality of life but also results in monetary savings. Women who are homemakers contribute to the household to an equal or greater extent. Their contributions are often overlooked because men are conditioned to believe that such work is of limited value., Women should be submissive or subordinate to men. The Constitution of India guarantees equal rights to individuals of all genders. Women are neither subordinate to men nor do they need to be submissive to anybody. It must be remembered that every individual has a unique set of characteristics. Women and gender‑justice movements across the world have worked hard to fight these stereotypes and secure justice for themselves, in the courtroom as well as outside of it. It is important to dispel these stereotypes and foster an environment that cultivates equal respect for individuals of all genders., These stereotypes are often accurate, why not rely on them? While some women may conform to a particular stereotype or assumption in certain situations, this is not a reason to extend this assumption to all women. Examining the merits of every case on its own is at the heart of impartial decision making. It is also important to recognise that the very existence of a pervasive stereotype in society can itself socially condition women to conform to the stereotype. For example, the stereotype that women ought to perform household tasks such as cooking and cleaning leads to societal expectations that women will perform these tasks, limited career options for women, portrayal of women in media as performing these tasks, and stigmatisation of women who pursue professional careers. Thus, even where the facts in a case may support a stereotype, the case requires careful examination., (iii) Stereotypes concerning sex and sexual violence\n\nAssumptions are often made about a woman’s character based on her expressive choices (for example, the clothes she wears) and sexual history. These assumptions may also impact how her actions and statements are assessed in judicial proceedings. Assumptions based on a woman’s character or the clothes she wears diminish the importance of consent in sexual relationships as well as the agency and personhood of women. The table below provides an illustrative list of stereotypes that are often applied to men and women in the context of sex and sexual violence and explains why such assumptions are wrong., Stereotype – Reality\n\nWomen who dress in clothes that are not considered traditional want to engage in sexual relations with men. If a man touches such a woman without her consent, it is her fault.
id_137	1	The clothing or attire of a woman neither indicates that she wishes to engage in sexual relations nor is it an invitation to touch her. Women are capable of verbally communicating with others and their choice of clothing represents a form of self‑expression that is independent of questions of sexual relations. A man who touches a woman without her consent must not be permitted to take the defence that the woman invited his touch by dressing in a particular way., Criminal Miscellaneous Case 1303 of 2022 (Sessions Court, Kozhikode, 12 August 2022) held that the photographs produced along with the bail application by the accused showed that the de facto complainant was exposing herself in dresses that were sexually provocative. Consequently, Section 354A of the Indian Penal Code will not prima facie stand against the accused., In State of Punjab v. Gurmit Singh, the Supreme Court of India observed that even where there is material on the record to show that the victim was habituated to sexual intercourse, no inference that the victim is a girl of loose moral character is permissible. Even if the prosecutrix had been promiscuous in her sexual behaviour earlier, she has a right to refuse sexual intercourse to anyone. No stigma should be cast against such a witness, for the accused, not the victim of a sex crime, is on trial (1996 (2) Supreme Court Cases 384)., The consumption of alcohol or the use of tobacco by a woman is not an indication of her desire for sexual relations with a man. A man who touches a woman without her consent must not be permitted to take the defence that the woman invited his touch by drinking or smoking., Women who are sexually assaulted or raped may react in varied ways; some may cry incessantly, others may not exhibit any emotion in public. There is no correct or appropriate way in which a survivor behaves. Interaction with the accused after the incident does not render the complaint false, as survivors are often forced to interact with perpetrators who may be family members, employers, or persons in positions of authority., 2016:INSC:946 noted that the nature of the exchanges between the complainant and the accused, as narrated by her, were not consistent with those of an unwilling, terrified and anguished victim of forcible intercourse when judged by normal human conduct., Women who complain about injustice immediately after the incident are not more credible than those who register a complaint after a lapse of time; stigma and lack of familial support may cause delays in reporting. The notion that a dominant‑caste man would not engage in sexual relations with an oppressed‑caste woman is false; sexual violence has historically been used as a tool of social control., Criminal Appeal 944 of 2016 (High Court of Delhi, 25 September 2017) observed that a day after the occurrence the prosecutrix could not be said to be under any fear of reprisal, and her failure to approach the appellant was surprising., Bhanwari Devi, a government social worker from an oppressed caste, filed an FIR in 1992 alleging that dominant‑caste men violently assaulted and raped her. The trial court acquitted the accused in 1995, citing stereotypes about caste and gender. A public interest petition was filed in the Supreme Court of India, leading to the Vishaka v. State of Rajasthan judgment (1997) 6 Supreme Court Cases 241, which laid down guidelines to protect women in the workplace., It is a misconception that a man cannot rape a sex worker; the offence of rape may be made out if the sex worker does not consent for any reason, including the man's refusal to pay. Sex workers are among the groups most vulnerable to sexual violence., The belief that the marriage of a rapist to the survivor restores honour is false; marriage does not undo the crime of rape and may intensify the trauma faced by the survivor., Criminal Appeal 2322 of 2010 (20 May 2013, Supreme Court of India) held that rape is a serious blow to the supreme honour of a woman, offending both her esteem and dignity. Criminal Miscellaneous Bail Application 32824 of 2020 (High Court of Allahabad, 16 February 2023) noted that Indian society has undergone a complete change over the past forty years., Section 53A of the Indian Evidence Act 1872 prohibits lawyers from adducing evidence of the character of the survivor or of her previous sexual experience where the question of consent is in issue, thereby combating stereotypes that a woman's sexual history defines her credibility., In State of Jharkhand v. Shailendra Kumar Rai, the Supreme Court of India categorically banned the two‑finger test, stating that a woman's sexual history is wholly immaterial to determining whether the ingredients of Section 375 of the Indian Penal Code are present. The Court also relied on Lilu v. State of Haryana, emphasizing that such tests violate the dignity of rape survivors., The Supreme Court of India has repeatedly held that the testimony of a survivor or victim of sexual violence is inherently credible and should not be doubted merely because of assumptions that women fabricate cases. In State of Punjab v. Gurmit Singh, the Court rejected the trial court's search for contradictions and affirmed that corroboration is not a legal requirement for conviction., The absence of physical injuries does not automatically discredit a survivor's testimony. In State of Uttar Pradesh v. Chhotey Lal, the Supreme Court observed that a lack of injuries may be due to the passage of time or the circumstances of the assault, and that such absence should be evaluated contextually., Delay in filing an FIR cannot be mechanically used to create doubt. In State of Punjab v. Gurmit Singh, the Supreme Court held that a limited delay explained by the survivor's approach to the village panchayat was reasonable. Similarly, in State of Himachal Pradesh v. Gian Chand, the Court stated that delay in lodging the FIR should not be used as a ritualistic formula for doubting the prosecution case.
id_137	2	Delay has the effect of putting the Supreme Court of India on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. However, if the delay is explained to the satisfaction of the Supreme Court of India, the delay cannot itself be a ground for disbelieving and discarding the entire prosecution case. Thus, courts should be wary of mechanically relying on a delay in reporting an instance of sexual violence to discredit the testimony of the survivor or victim or the case of the prosecution. Rather, a holistic appreciation of the facts following the incident of violence must be conducted and possible explanations for the delay in filing a First Information Report or complaint must be considered seriously by courts., This Handbook aims to serve as a guide for judges, raising awareness on the need to avoid stereotypes against women in all facets of their decision making and writing. As guardians of the legal and constitutional system, it is incumbent that members of the judiciary avoid employing stereotypes and dispense justice impartially. Women have historically faced numerous prejudiced beliefs and stereotypes, impeding their access to fair and equal treatment within society and the justice system. The Indian judiciary must recognise the deep-rooted impact of gender stereotypes and actively work to dismantle them from its thinking, decision-making, and writing. By consciously avoiding the use of stereotypes in decision-making and stereotype-promoting language, the judiciary can foster an environment where gender equality is upheld and respected. Words matter, as they shape narratives and influence societal attitudes. The use of more inclusive language can help break harmful patterns of thinking. While this Handbook has primarily focused on gender stereotypes that concern women, it is important to realise that stereotypes impact individuals from across the gender spectrum. Judges must be vigilant against all forms of gender bias and ensure that every person, regardless of their gender identity, is treated equally and with dignity before the law. It is hoped that this Handbook will be a catalyst for change within the legal profession, inspiring the Indian judiciary to discharge its duties impartially with a recognition of the inherent dignity and unique nature of every individual.
id_1370	0	Writ Petition (Civil) No. 5284/2022 is a classic case of highhandedness at the hands of Assistant Passport Officer in raising objections for re‑issuance of the passport by a single parent facing a matrimonial discord, directing them to approach the High Court of India and obtain a court order. The aforementioned fact is recorded in Exhibit P6 communication dated 20 January 2022 which reads as follows: Single parent case. Please process with change of name documents and hold for Father's consent or court order. (Child's custody not mentioned in divorce order., Learned counsel for the petitioner submits that the petitioner is already divorced and is a single parent and Exhibit P2 copy of the divorce had already been supplied. But despite that the aforementioned noting was put by the Passport Officer. There is already a form Annexure C Exhibit P5 enclosed with the passport form which had already been filled by the petitioner giving an undertaking that the entire responsibility would be of her as there is already an order of divorce. But despite that the objections have been raised., It is submitted on behalf of the Assistant Superintendent of Government Investigation that during the pendency of the writ petition, respondents have processed the Writ Petition (Civil) No. 5284/2022 application of the petitioner on 22 February 2022 and the passport shall be reissued in the name of the minor child namely, Shrimati Sumayya, daughter of Shiny Shukoor., This High Court has come across similar litigation day in and day out whereby the petitioners/applicants for re‑issuance of passport, particularly either of the parent who is facing the matrimonial discord or there is already a separation, are compelled to approach this Court for appropriate order, despite filling the form Annexure C. The officers at the helm of affairs exercising the powers for issuing the passport are supposed to deal with the application in a pragmatic and reasonable manner, but should not reject the application in the manner and mode as extracted above. Knowing fully well that this Court would have expressed concern with regard to the spate of litigation and may come down heavily on the action of the respondents, in anticipation of that processed the application of the petitioner, but for redressal of the grievance, is impelled to shell out litigation expenses., In view of the statement made on behalf of the Passport Officer that the application has been processed and passport shall be issued, this High Court is sanguine of the fact that the passport shall be issued within a period of one week from today. But, it would be subject to the cost of the litigation of Rupees 25,000 to be paid by respondent No. 3 from his own salary., This order is also directed to be circulated to all the passport officers who have been raising such type of objections compelling the affected parties to approach this Court for no rhyme and reasons. Copy of the order is directed to be handed over to the Assistant Superintendent of Government Investigation for circulation to all the passport officers. Writ Petition is disposed of as above.
id_1372	0	Sudeep Suhas Kulkarni and Nikita Ashok Choksi Petitioners Abbas Bahadur Dhanani Respondent Mister Gauraj Shah in behalf of Miss Priyanka Sinha and Miss Simran Grover as intervenors for Petitioners. Heard Mister Shah, learned counsel for the petitioners., This petition is filed under the provisions of the Guardians and Wards Act, 1890, seeking various reliefs. The facts of the present case are peculiar., Petitioner No.2 and the respondent were married on 14.08.2005 and minor child was born on 06.08.2011. The petitioners have specifically asserted that although the minor child was born during the subsistence of the marriage between petitioner No.2 and the respondent, as a matter of fact, petitioner No.1 is the biological father of the minor child., Perhaps for the aforesaid reason and due to other circumstances, the respondent divorced petitioner No.2 by means of a written Talaqnama dated 19.10.2015. Copy of the same along with its translation is placed on record with the petition. It is recorded in the said document that on the said date, the respondent pronounced Talaq to petitioner No.2 in the presence of two witnesses upon payment of amounts towards Meher and Iddat by way of cheques. Although as per the requirements of Muslim Law, petitioner No.2 and the respondent stood divorced, by way of abundant caution, petitioner No.2 filed Petition No. B-77/2017 before the Family Court at Bandra, praying for a decree for declaration of her status as divorced., On 05.12.2018, the Family Court passed its judgment and order in the said petition. It was recorded as a matter of fact that the said minor child was not born from the respondent as he was not the biological father and that the custody of the minor child always remained with her mother i.e. petitioner No.2. The Family Court further observed that since the Talaqnama dated 19.10.2015 was executed by consent and it was a valid Talaq or divorce, the decree as sought by petitioner No.2 was unnecessary. It was held that no cause of action was made out and on that basis, the petition stood rejected under Order 7, Rule 11(a) of the Code of Civil Procedure, 1908., Petitioners have placed on record a copy of the DNA Test report dated 18.12.2021, which specifically records petitioner No.1 as the father of the minor child., It is stated in the petition that the petitioners are residing together with the minor child and that the material placed on record along with the petition, including the DNA Test report, sufficiently shows that the petitioners are indeed the biological parents of the minor child. On this basis, the petitioners claim that they are fit to be appointed as guardians of the minor child., It is also brought to the notice of the High Court that the petitioners and the minor child are facing practical difficulties in the peculiar facts and circumstances of the present case, inter alia, because the birth certificate of the minor child records petitioner No.2 as the mother and the respondent as the father, although petitioner No.1 is the biological father of the minor child., Learned counsel for the petitioners has also referred to a no objection affidavit dated 21.09.2022 submitted by the respondent in the present petition. This was pursuant to notice being served on the respondent. In the said affidavit, the respondent has specifically stated that he has no objection to the petitioners being declared as the natural and legal guardians of the minor child. He has further stated that he gave sole custody of the minor child willfully to petitioner No.2., Learned counsel for the petitioners has fairly brought to the notice of the High Court the position of law in respect of the rights available to a child, who is born outside marriage, as in the present case and is unfortunately referred to as an illegitimate child. This High Court is of the opinion that for no fault of the child, it is branded illegitimate for the world at large, which in itself amounts to harassment to the child., Learned counsel for the petitioners referred to the Commentaries on Muslim Law. In the Commentary on Muslim Law authored by Manzar Saeed in the Second Edition 2015, it is stated that nasab or descent under Muslim Law is established by valid marriage or by the semblance thereof and it is not established by illicit intercourse (zina). It is also stated in the Commentary that when a man commits zina with a woman, the descent of the child is not established from the man but it is established only from the woman by its birth. It is further stated in the Commentary that an illegitimate child referred to as walad-uz-zina has no nasab or parentage and that the child cannot inherit title or otherwise., Reference was also made to the Principles of Mohammedan Law by Mulla, 21st Edition, wherein it is stated that paternity of the child can only be established by marriage between its parents. The said position is reiterated in the other Commentaries referred to by learned counsel appearing for the petitioners., Learned counsel for the petitioners then relied upon the judgment of the Supreme Court in the case of Athar Hussain Vs. Syed Siraj Ahmed and others, (2010) 2 SCC 654. The Supreme Court referred to the situation faced by individuals under the Mohammedan Law in the context of custody and guardianship of minor children, who are in conflict with the personal law. After referring to various aspects of Mohammedan Law, in the context of the questions that arose regarding custody and guardianship, the Supreme Court held that if there is a conflict between the provisions of personal law and the provisions of the Guardians and Wards Act, 1890, by keeping the interest of the minor child as the paramount consideration, the Court can proceed on the basis that the provisions of the Guardians and Wards Act, 1890 would prevail over the personal law., The High Court has considered the position of law as brought to the notice by learned counsel for the petitioners and the facts of the present case are also taken into consideration. Applying the principles of the Mohammedan Law strictly to the facts of the present case, it would appear that the minor child would have no inheritance and she would virtually stand deprived of basic rights, only because she is the product of a relationship between petitioner No.1 and petitioner No.2, during the subsistence of the marriage between petitioner No.2 and the respondent. This High Court is of the opinion that since the petitioners in the present case are the biological parents and there is sufficient material placed on record to show that petitioner No.1 is the biological father of the minor child, it would be a travesty of justice if the prayers made in the present petition are not considered, merely because the personal law applicable to the minor child indicates that being an illegitimate child, she can have no rights towards inheritance or descent. As indicated by the Supreme Court in the aforementioned judgment in the case of Athar Hussain Vs. Syed Siraj Ahmed and others, as per Section 17 of the Guardians and Wards Act, 1890, the consideration of the welfare of the minor should be the paramount factor and it cannot be subordinated to the personal law of the minor., An additional factor in the present case is the affidavit presented by the respondent, wherein he has specifically expressed his no objection to the prayers in the present petition being granted and that he willfully gave up the custody of the minor child in favour of her mother i.e. petitioner No.2. If the prayers of the petitioners in the present petition are not considered favourably, it would create a situation where the respondent already having given up any claims towards the minor child, she would be deprived of the right to be taken care of and maintained by the petitioners, who are more than willing to take care of her needs, being the biological parents of the minor child. Such a situation where the minor child, for no fault of hers, is left high and dry, cannot be countenanced and therefore, this High Court is of the opinion that keeping the interest of the minor child as the paramount consideration, the present petition can be favourably considered., Section 4(2) of the Guardians and Wards Act, 1890 defines the term guardian to mean a person having the care of the person of a minor or of her property or of both, her person and property. Section 7 of the Act provides for the power of the High Court to make order as to guardianship and it reads as follows: 7. Power of the High Court to make order as to guardianship. - (1) Where the High Court is satisfied that it is for the welfare of a minor that an order should be made (a) appointing a guardian of his person or property or both, or (b) declaring a person to be such a guardian the High Court may make an order accordingly. (2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the High Court. (3) Where a guardian has been appointed by will or other instrument or appointed or declared by the High Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act., It is undisputed that the minor child has been in the custody of petitioner No.2 i.e. her mother and it is specifically stated in the petition that petitioner Nos.1 and 2 are residing together along with the minor child. The material on record, including the DNA report demonstrates and this High Court is satisfied to conclude that the petitioners are indeed the biological parents of the minor child. They have specifically undertaken to take care of all the needs of the minor child Ziana., In these circumstances, this High Court is of the opinion that the present petition can be allowed. A perusal of the prayer clauses would show that prayer clause (a) is rendered infructuous for the reason that the respondent has indeed taken notice and filed his no objection affidavit. Prayer clauses (b) and (c) can be granted in the light of the observations made hereinabove. Insofar as prayer clauses (d) and (e) are concerned, this High Court is inclined to make appropriate observations. In view of the above, the present petition is allowed in terms of prayer clauses (b) and (c), which read as follows: b. The petitioners be appointed and declared as the natural and legal guardians of the minor Ziana (without security and remuneration); c. The petitioners be permitted to represent the said minor Ziana at school or any other authority as guardians of the minor., Insofar as prayer clauses (d) and (e) are concerned, the petitioners are at liberty to make appropriate representations before the concerned authorities, on the strength of the order passed in the present petition. The concerned authorities are expected to take a reasonable approach in the matter, keeping the best interest of the minor child as the paramount consideration., Petition is disposed of accordingly.
id_1373	0	Whether reporters of local papers may be allowed to see the judgment? To be referred to the reporter or not? Whether their Lordships wish to see the fair copy of the judgment? Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder? Versus Appearance: Ms. E. Shailaja (advocate) for the applicants and Mr. Nirad D. Buch (advocate) for the respondents. Date: 18/08/2023. Learned Additional Public Prosecutor waives service of notice of rule for the respondent State and learned advocate Mr. Nirad Buch waives service of notice of rule for the respondent No.2., With the consent of learned advocates appearing for the respective parties, the matter is taken up for final hearing., This petition is filed under section 482 of the Code of Criminal Procedure, 1973 by the petitioners for quashing and setting aside the impugned First Information Report being I C.R. No. 0055 of 2015 registered with Chuda Police Station for the offences punishable under section 498A, section 294(b), section 323, section 114, section 506(2), section 494 and section 114 of the Indian Penal Code., The contents of the FIR read thus: My name is Sonalben, daughter of Mithabhai Jivabhai Sorathiya, caste Scheduled Caste, aged about 29, occupation housewife, residence Kanthariya, Taluka Chuda, District Surendranagar, Mobile No. 7600702632. Being asked personally, I declare and dictate the facts of my complaint that I reside at the above mentioned address with my father and my daughter Nisha, aged 9 years. I am a housewife. We are three brothers and sisters, wherein I am the eldest and Ajay is younger to me and the youngest sister is Gayatri. My marriage was solemnised with Rameshbhai Dhanjibhai Solanki, native of Rojid, Taluka Barvala and presently residing at Dubechal, beside Chandralok Building, Arthar Road, Goregav West, Mumbai, about ten years ago i.e. on 06.03.2005. The Police of Chuda have read over an application to me today, which is addressed to P.S.I. Chuda Police Station. I have made thumb impression therein. After my marriage was solemnised on 06.03.2005, my in‑laws took me to the above mentioned address at Mumbai. They behaved well with me during the beginning days at Mumbai. The family members of my in‑laws, which included my husband Ramesh Dhanjibhai, father‑in‑law Dhanjibhai Bhikhabhai, mother‑in‑law Savitaben, elder brother‑in‑law Hareshbhai, sister‑in‑law Premilaben, sisters‑in‑law Hansaben, Ushaben and Surekhaben, were residing in a joint family and they were physically and mentally harassing me frequently. All those persons, instigated by my husband, used to get me assaulted. I endured this suffering for about one and a half year. In the meantime, I became pregnant by my husband and, under the pretext of my delivery, my husband dropped me at my maternal home in Kanthariya. I was given medicine for abortion and, as I denied it, I was told that he does not want me and came to drop me at Kanthariya and at that time, my husband threatened me that if abortion is not done, he will kill me. I did not file any complaint as I wanted to sustain my marital life. My in‑laws did not take me back, so I was forced to prefer a maintenance case in Limbadi Court in the year 2011 and maintenance of Rs. 2500 for me and Rs. 1500 for my daughter Nisha was granted. My husband used to pay maintenance only sometimes. When I was at Kanthariya, my husband used to make calls to me from unknown numbers demanding divorce or else he would kill me. My in‑laws, namely my husband Ramesh Dhanjibhai, my mother‑in‑law Savitaben and father‑in‑law Dhanjibhai, used to attend the court on adjournments and visited Kanthariya and during that time also told me that I should give divorce and that they do not want me anymore. As I denied, they threatened to kill me. On 02.08.2015, our relative Shivabhai Jivabhai Sagathiya came and told me that when he visited the house of my in‑laws, he found that my husband Rameshbhai had taken a second marriage and my in‑laws conveyed to me that Ramesh had done a second marriage and that they do not want to take me back and that I should do whatever I want. By conveying the same, they meted out mental harassment to me. I came to know that my husband has married Dipika, daughter of Chhanabhai Danabhai, native of Hadmatiya, Taluka Vallabhpur, presently residing at Mumbai, Nala Sopara, Ganeshwadi. This marriage is done without my consent and without obtaining divorce from me. Hence, I have been forced to lodge this complaint. Therefore, it is my lawful complaint to take action against my above mentioned in‑laws as they have mentally and physically harassed me, threatened over the phone as also in person to give divorce and also threatened to kill me. This much fact of my complaint is true and correct and as the same is read over to me, I have made my right hand thumb impression below., Perusal of the FIR indicates that the respondent/complainant, without mentioning the time, date and place, alleged ill‑treatment, cruelty and harassment against the petitioners; no specific incident is alleged. The respondent/complainant has also not mentioned in which way she was physically and mentally harassed by the petitioners. The allegations are in general form. It also appears that the fact of abortion is stated without support of any medical evidence. Lastly, by mentioning the date as 2.8.2015, the respondent/complainant alleged that Shivabhai Jivabhai Sagathiya came and told her that her husband Rameshbhai had contracted a second marriage. Putting this fact in a single compass, the complainant has lodged the complaint., Heard learned advocate Ms. E. Shailaja for the petitioners, learned advocate Mr. Nirad Buch for the respondent/complainant and learned Additional Public Prosecutor Mr. Ronak Raval for the respondent State., During the course of hearing, learned Additional Public Prosecutor submits the report filed by the Police Sub‑Inspector, Chuda Police Station, which is taken on record., Learned advocate Ms. E. Shailaja for the petitioners drew the attention of this High Court towards Annexure B and submits that the Family Court at Bandra, Mumbai in Petition No.2639 of 2011, by reasoned order on 25 February 2014, granted divorce in favour of the petitioner No.1 Rameshbhai. She further submits that the present FIR, designed to harass the petitioners, was filed on 26 December 2015 by the respondent/complainant. She further submits that perusing the contents of the FIR, it indicates that the complainant was well aware of the decree of divorce passed in Petition No.2639 of 2011 by the competent Court dated 25 February 2014. Yet, as an afterthought and to harass the petitioners, the complainant, whose status was that of a divorced wife, preferred the complaint, which is nothing but abuse of process of law. She further submits that in the case on hand, the respondent/complainant has misused section 498A along with allied offences of the Indian Penal Code and therefore, the present petition deserves consideration., Learned advocate Ms. E. Shailaja would submit that once divorce is granted by the competent Court and not been challenged or reversed by the appellate Court, the status of the wife post such decree would be divorced wife and she cannot file a complaint under section 498A being the principal offence, as the status of husband and wife was discontinued on passing the divorce decree. She further submits that the impugned FIR is filed almost 20 months subsequent to the divorce decree. In view of such fact on record, the first informant has misused provisions of law; the petition may be allowed and the impugned FIR may be quashed and set aside., Vehemently opposing relief claimed in this petition, learned advocate Mr. Nirad Buch argues that the divorce decree at Annexure B is passed in absence of the present complainant; she was never aware of the divorce decree passed by the learned Family Court, Mumbai. Referring to page No.57 of the compilation, he submits that on 1 March 2021, one \Gharmele Samjuti Karar\ was executed between the petitioner No.1 Rameshbhai and respondent No.2 Sonalben, both of them having restored their marital life, but even thereafter the harassment and cruelty continued to be meted out to the respondent/complainant. In those circumstances, looking to the conduct of the petitioner No.1 subsequent to filing of the FIR, it can be prima facie said that the contents of the FIR are true and correct and therefore, the petition should not be allowed and the complainant should not be nonsuited at the threshold. He submits to dismiss the petition., Learned Additional Public Prosecutor Mr. Ronak Raval for the State joins the submissions of learned advocate Mr. Nirad Buch. He submits that whatever grounds are mentioned in this petition for quashing the FIR as a defence of the petitioner can be tested during the investigation and, if necessary, during trial. He further submits that the scope of exercise of powers under section 482 of the Code is limited. At the time of exercising powers under section 482 of the Code, this High Court has to see whether sufficient material is available for sending parties to trial and, if the answer is affirmative, the petitioner should be sent for trial. This submission is canvassed to dismiss the petition., No other and further submissions are canvassed by learned advocates for both the sides., Having heard learned advocates for both the sides and having perused the record, certain undisputed facts emerge: Petitioner No.1 Rameshbhai and respondent/complainant Sonalben were legally wedded husband and wife. Their marriage was solemnised on 6 March 2005. The wedlock resulted in the birth of a daughter, aged about 9 years on the date of filing of the impugned FIR. Certain matrimonial disputes took place between the parties. The petitioner No.1 filed Petition No.2639 of 2011 under section 13(1)(i‑a) and (i‑b) of the Hindu Marriage Act, 1955 before the Family Court at Mumbai on 8 November 2011 seeking divorce. Summons of the divorce petition were served to the respondent/complainant (see Annexure B, page 21). The respondent/complainant did not appear before the Family Court at Mumbai. After examining the evidence on record, the learned Family Judge, Mumbai, by judgment and decree dated 25 February 2014, granted divorce in favour of the petitioner No.1. The judgment and decree have not been challenged before a higher forum and thus attained finality. The captioned FIR was filed on 26 December 2015., In background of the above undisputed facts, when the FIR for the offences under section 498A and other allied offences was filed, the divorce decree had already been granted by the competent Court and was operating against the respondent/complainant. In other words, the complainant was a divorced wife at the time of filing the impugned FIR. The FIR was filed by the respondent/complainant almost after 20 months of the passing of the judgment and decree by the competent Court., The principal offences alleged in the FIR are under section 498A and section 494 of the Indian Penal Code. For ready reference, both the sections are reproduced hereunder: 498A. Husband or relative of husband of a woman subjecting her to cruelty. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation: For the purpose of this section, cruelty means (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. 494. Marrying again during lifetime of husband or wife. Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. (Exception) This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge., The plain reading of section 498A of the Indian Penal Code shows that the expression refers to the accused as the husband and relatives of the husband. The expression in ordinary parlance denotes a person acting in the capacity of husband or as a relative of the husband. For levelling an allegation under section 498A, the status of husband or relatives of the husband must exist. The expression does not include former husband, ex‑husband or relatives of a former husband. The legislature, while using the expression \the husband or relatives of the husband\ in section 498A, used the word \woman\ and not \wife\. Accordingly, a complaint under section 498A can be maintained by a divorced wife provided she alleges an incident of harassment and cruelty that occurred while the marriage was subsisting. She cannot file a complaint alleging an incident that took place after the divorce. Once the competent Court passes a decree of divorce, the marital status of husband and wife is snapped and the prerequisite condition of section 498A disappears. In the present case, when the FIR was filed alleging offences punishable under section 498A read with allied offences, the status of the complainant and petitioner No.1 as husband and wife had been snapped by the divorce decree. The petitioner No.1 was not the husband of the complainant nor were the other petitioners relatives of the husband. The FIR does not allege harassment or cruelty for the period when the marriage was subsisting; it appears that the complainant was aggrieved because the petitioner No.1 remarried subsequent to the divorce decree, and the allegations of harassment and cruelty relate to the period after the divorce., A plain reading of section 494 of the Indian Penal Code indicates that if a husband or wife marries again during the lifetime of the other spouse, it is an offence. To attract offence under section 494, the requisite condition is that the parties must be husband and wife at the time of the second marriage., In the case on hand, the marital status of the parties was discontinued on 25 February 2014 as the competent Court granted the divorce decree and removed the parties from the status of husband and wife. Recently, the Supreme Court of India in Mahmood Ali and others v. State of Uttar Pradesh and others (Criminal Appeal No. 2341 of 2023) held that while exercising the extraordinary powers under section 482 of the Code of Criminal Procedure, the Court owes a duty to read between the lines and, if the proceedings are found to be frivolous or vexatious in the background of the attending circumstances, the Court may pass a necessary order. The Supreme Court observed in paragraph 12: \Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, the Court owes a duty to look into the FIR with care and a little more closely... In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines.\, With profit, I may also refer to the findings of the Supreme Court of India in Mohammad Miyan and others v. State of Uttar Pradesh (2019) 13 SCC 398. The Court noted: \The prosecution under section 498A of the IPC was clearly not tenable in view of the complainant's own statement that the divorce had taken place about four years before the filing of the FIR. The complainant‑wife, being a headmistress, must be credited with due knowledge of her legal status. In view of her own averment that she was divorced four years ago, the prosecution is not sustainable under section 498A of the IPC and Sections 3/4 of the Dowry Prohibition Act, 1961.\, Perusal of the FIR as it stands indicates that general allegations are levelled against the petitioners without specifying any details about harassment or cruelty that could have been meted out during the period when the marriage was subsisting. The divorce decree dated 25 February 2014 removed the status of petitioner No.1 and the respondent/complainant as husband and wife. The FIR was filed on 26 December 2015, much subsequent to the granting of the divorce decree. The FIR also indicates that the respondent/complainant came to know about the subsequent marriage of petitioner No.1 on 2 August 2015 and therefore alleged offence under section 494 in addition to the offence under section 498A and other allied offences of the Indian Penal Code., Admittedly, on 2 August 2015 the marriage between petitioner No.1 and the respondent/complainant was not in existence and they were not husband and wife. In view of that, offence under section 494 of the Indian Penal Code is also not made out., As stated earlier, no specific allegation of cruelty or harassment was made against the petitioners for the period when the marriage was in existence. The FIR appears to have been filed for vengeance and as a counter‑blast to the divorce decree granted by the competent Court in favour of petitioner No.1. The FIR does not disclose any allegation of cruelty or harassment for the period when the marriage was prevailing. On its bare face, the FIR is filed by a divorced wife against her former husband and his relatives. Reading between the lines, the FIR is filed to achieve a desired motive. No case for offence under section 498A read with section 494 and allied offences of the Indian Penal Code is made out., Learned advocate Mr. Buch, referring to the \Gharmele Samjuti Karar\, submits that both parties restored their marital status by way of this Karar. This Court has failed to recognize such a procedure to restore matrimonial status, especially in the presence of a subsisting divorce decree passed by the competent Court. Moreover, the \Gharmele Samjuti Karar\ is dated 1 March 2021, much subsequent to the filing of the FIR, and therefore has no relevance to the dispute., At this juncture, I may refer to State of Haryana v. Bhajanlal (AIR 1992 SC 604), interpreting section 482 of the Code of Criminal Procedure read with Article 226 of the Constitution of India, wherein the Supreme Court of India observed that the inherent power of the Court may be exercised to prevent abuse of process or to secure the ends of justice, particularly where (i) the allegations in the FIR do not prima facie constitute any offence; (v) the allegations are so absurd and inherently improbable that no prudent person can conclude that there is sufficient ground for proceeding; and (vii) the proceeding is maliciously instituted with an ulterior motive for vengeance., In background of the facts of the case, this Court is of the view that the present petition falls within the parameters numbered 1st, 5th and 7th respectively of Bhajanlal (supra)., In State of Andhra Pradesh v. Golconda Linga Swamy (2004) 6 SCC 522, the Supreme Court of India elaborated on the types of materials the High Court can assess to quash an FIR. It held that material which manifestly fails to prove the accusation in the FIR can be considered for quashing the FIR, and that the Court may look into the overall circumstances leading to the registration of the case as well as the materials collected during investigation., On reading the FIR as it is, it does not disclose the essential ingredients of the offences punishable under section 498A as well as section 494 and other allied offences of the Indian Penal Code. Allowing the FIR to continue into investigation and further into a criminal case would be humiliating to the petitioners and would amount to abuse of process of the Court. Therefore, the proceedings are required to be quashed and set aside to meet the ends of justice., For the foregoing reasons, the present petition is allowed and the impugned FIR being I C.R. No. 0055 of 2015 is quashed and set aside.
id_1373	1	Number 0055 of 2015 registered with Chuda Police Station and all consequential proceedings arising therefrom are hereby quashed and set aside.
id_1376	0	BA-2054-21.doc. Gangam Sudhir Kumar Reddy, Applicant versus State of Maharashtra, Respondent. Mr. Elwish Edward as well as Mr. Omkar Hase, in behalf of Annie Fernandez, Advocates for the Applicant. Mr. A. R. Kapadnis, Assistant Public Prosecutor for the Respondent State. Mr. Nilesh Bhalerao, Police Sub-Inspector, Anti Narcotics Cell, Ghatkopar Unit, Crime Branch, Mumbai present., Applicant is seeking regular bail in Crime No. 46 of 2019 registered with Anti Narcotics Cell, Ghatkopar Unit for the offence punishable under Section 8(c) read with Section 20(c) and Section 29 of the Narcotic Drugs and Psychotropic Substances Act. Commercial quantity of contraband was recovered from the vehicle which is owned by the wife of the applicant, in which the applicant along with co‑accused was travelling., The submissions of the counsel for the applicant are that non‑compliance of Section 50 of the Narcotic Drugs and Psychotropic Substances Act is evident on the record as the applicant understands Telugu language whereas the communication was made in Hindi, a language not known to the applicant., The prayer is opposed by the learned Assistant Public Prosecutor contending that there is sufficient compliance of Section 50 of the Narcotic Drugs and Psychotropic Substances Act., Admittedly, although not from the personal possession of the applicant, commercial quantity of ganja was recovered from the vehicle owned by the wife of the applicant. Applicant and co‑accused were travelling in the said vehicle when the contraband in commercial quantity was seized., As far as the compliance of Section 50 is concerned, the panchnama drawn on 6 July 2019 apparently records communication of the statutory right of the applicant under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, viz. the applicant has the right to be searched first by the officer or else can be searched before a Gazetted Officer or a Magistrate and, if not, by the Police Inspector., A defence is raised by the counsel for the applicant that the applicant knows only Telugu as he is a permanent resident of Hyderabad. He claims to be a businessman having a business of Tours and Travels and as such there was no effective communication of his right to know about statutory safeguards., He has drawn support from the judgment of the Supreme Court of India in the matter of Arif Khan alias Agha Khan versus State of Uttarakhand to substantiate his contention., The Bombay High Court must appreciate that what was found from the custody of the applicant is commercial quantity of contraband. The contention depicts that the applicant was communicated about his statutory rights under Section 50 in Hindi. However, at this stage, he claims that he does not understand Hindi. Once the applicant has claimed that he is conducting Tours and Travels business, the basic requirement of a person carrying out such business is acquaintance with the language and communication skills. The applicant was communicated about his right in Hindi, which is the national language. The applicant was apprehended from Mumbai. The fact that the applicant was carrying out business of Tours and Travel prompts this Court to believe that he must be aware of the local language. As such, it can be presumed at this stage that the applicant was aware of Hindi in which he was communicated about his right under Section 50 of the Act. The fact remains that in the bail application of the applicant, his limited knowledge of Telugu cannot be appreciated at this stage, as the said defence can be looked into at the stage of trial., Section 50 provides for conditions under which search of a person shall be conducted. The contraband recovered in the case is not from the person of the applicant but from the bag which he was carrying and also the dickey of the four‑wheeler in which he was travelling. It is an undisputed proposition of law that safeguards under Section 50 are available only for search of a person and not for any other purpose. The provision is incorporated for the purpose of providing safeguard to the accused against the possibility of false involvement. The Act carries a stringent punishment. As such, the Supreme Court of India has held that the procedure laid down in Section 50 has to be meticulously followed. This section is incorporated with an intention to give credibility to the search and seizure empowered by the officers. The law laid down by the Supreme Court of India in the matter of Ajmer Singh versus State of Haryana reported in 2010(3) SCC 746 is worth relying upon., That being so, no case of grant of bail is made out. The application as such stands rejected.
id_1378	0	Date of decision: 27.04.2022. Present: Mr. Arav Gupta, Advocate with Mr. Priya Aggarwal, Advocate for the petitioner. Mr. Gaurav Bansal, Additional Advocate General, Haryana. The instant application has been filed under Section 482 of the Criminal Procedure Code for exemption of filing certified copies of Annexures P-1 as prayed for., The instant petition has been filed under Section 439 of the Criminal Procedure Code by the petitioner for seeking concession of regular bail in case bearing FIR No. 0578 dated 29.09.2021 registered under Sections 342, 395, 397, 307, 34 and 120-B of the Indian Penal Code, 1860 and Sections 25, 25(1)(a) of the Arms Act, 1959 at Police Station Mujesar, District Faridabad., Learned counsel appearing on behalf of the petitioner inter alia contends that as per the FIR registered on the statement of Mohit son of Ved Aggarwal, two boys with muffled faces had pushed the servant of the complainant and decamped with a sum of Rs. 4.4-5 lakhs in a bag along with other items at gun point. Upon the complainant raising an alarm, his father Ved Aggarwal came down. The third boy was standing outside with a motorcycle and both the boys fled away on their motorcycle. When the father of the petitioner tried to catch hold of one of them, they fired a shot on his father which hit the left shoulder. It is submitted that the petitioner is not named in the FIR and there is no attribution to the petitioner of having played any active or passive role in commission of the offence. It is pointed out that the name of the petitioner figured in the disclosure made by the co-accused as per which three persons were sitting in a separate car and that the petitioner is alleged to be one amongst those. He further submits that pursuant to the arrest of the petitioner on 04.10.2021, a recovery of Rs. 5,000 is alleged to have been effected. He submits that investigation in the case is complete and that his custodial interrogation is not warranted. It is further argued that the petitioner has been in custody for nearly 7 months and that the trial is yet to commence., Learned State counsel has vehemently opposed the application and contends that the petitioner has criminal antecedents and that he is involved in two other cases bearing FIR No. 163 of 2019 under Section 379-B and Section 34 of the Indian Penal Code and Section 25 of the Arms Act registered at Police Station Gaunaur, Sonipat and FIR No. 93 of 2020 registered under Sections 354-A, 354-D and 506 of the Indian Penal Code and Section 67 of the Information Technology Act at WPS, Manesar, Gurugram. He could not however point out whether the petitioner is on bail in the said offences or not. He could not controvert the fact that the FIR does not attribute any overt act on the part of the petitioner in the commission of the offence. It is also evident that the involvement of the petitioner is only on the basis of a disclosure made by the co-accused., The case for bail has to be considered on its own merits. Even though the antecedents of an accused may be one amongst the relevant considerations while adjudicating a petition on merits for grant of bail, a mere involvement of the petitioner in other cases cannot be the sole basis to keep him confined in perpetuity. The power to adjudicate upon the liberties of an individual, while considering their claim of bail, cannot be deployed as a means of inflicting sentence on an accused. The role attributed to the person and the evidence collected during the investigation by the Investigating Agency would invariably remain a prime consideration with the High Court while considering the application of bail along with stage of the prosecution case and the period of custody., Taking into consideration the role of the petitioner in the present case, the alleged recovery on the petitioner and the stage of investigation as also the period of actual custodial detention already undergone, I deem it appropriate to enlarge the petitioner on bail to the satisfaction of the trial Court., The instant petition is allowed and the petitioner is ordered to be released on bail on his furnishing requisite bail bond/surety bond to the satisfaction of the trial Court/Duty Magistrate, concerned., It is made clear that the petitioner shall not extend any threat and shall not influence any prosecution witnesses in any manner directly or indirectly., The observation made hereinabove shall not be construed as an expression on the merits of the case and the High Court shall decide the case on the basis of available material.
id_1381	0	Section 377 of the Indian Penal Code criminalises carnal intercourse against the order of nature. Historically the State used this provision to strip the dignity and autonomy of individuals who engaged in sexual activity with persons of the same sex. The colonial provision reflected Victorian morality and continued in the statute after Independence. Section 377 was also weaponised against gender‑non‑conforming persons. By criminalising the sexual behaviour of homosexual and gender‑non‑conforming persons, the State stripped them of their identity and personhood, and those who defied the law were socially ostracised., In Naz Foundation v. Government of National Capital Territory of Delhi, a Division Bench of the High Court of Delhi read down Section 377 of the Indian Penal Code to exclude consensual homosexual sexual activity between adults. On appeal, a two‑Judge Bench of the Supreme Court of India in Suresh Kumar Koushal v. Naz Foundation reversed the High Court judgment. A writ petition seeking to declare the right to sexuality, sexual autonomy and the right to choose a sexual partner as part of the rights guaranteed under Article 21 of the Constitution, and to declare Section 377 unconstitutional, was listed before a three‑Judge Bench of the Supreme Court of India. The petitioners argued that the matter should be referred to a five‑Judge Bench in view of the decisions of the Supreme Court in National Legal Services Authority v. Union of India and Justice K.S. Puttaswamy (J) v. Union of India. In National Legal Services Authority (supra), the Supreme Court held that the State must recognise persons who fall outside the male‑female binary as third‑gender persons and that they are entitled to all constitutionally guaranteed rights. The Court also directed the Union and State Governments to grant legal recognition to the self‑identified gender of transgender persons, including when they identify as male or female. In Justice K.S. Puttaswamy (J) (supra), the Supreme Court held that the Constitution protects the right of a person to exercise their sexual orientation., The Supreme Court in Navtej Singh Johar v. Union of India held that Section 377 is unconstitutional to the extent that it criminalises consensual sexual activities by the LGBTQIA+ community. The Court observed that Section 377 violated Article 14 because it discriminated between heterosexual and non‑heterosexual persons, violated Article 15 by indirectly discriminating on the basis of sexual orientation, and violated Article 19(1)(a) because it infringed sexual privacy. The Court also noted that the right to sexual privacy captures the right of the LGBTQIA+ community to navigate public places free from State interference, and that members of the community are entitled to the full range of constitutional rights, including the right to choose a partner, the ability to find fulfilment in sexual intimacies, equal citizenship and protection from discriminatory behaviour., Despite the de‑criminalisation of queer relationships, members of the LGBTQIA+ community continue to face violence, oppression, contempt and ridicule in various forms, both subtle and overt, on a daily basis. The State, which has the responsibility to identify and end discrimination against the queer community, has done little to emancipate the community from oppression. The legacy of Section 377 lives on, shaping social conceptions of love and companionship and reinforcing revulsion against the LGBTQIA+ community even after de‑criminalisation. Lack of sensitisation and ensuing discrimination push members of the community into the proverbial closet; expressing sexual orientation and gender identity often requires strength and courage. Ostracism extends across the full range of social values, from parenting to public office., The LGBTQIA+ community also faces discrimination in public spaces because services provided by the State, such as public washrooms, security checkpoints and ticket counters at railway stations and bus depots, are segregated based on a strict gender binary. Transgender women have recounted being asked to shift to the men’s queue in security checkpoints, despite identifying as female. Misgendering can have deleterious effects on mental health and functioning. Educational and employment institutions are not always safe spaces for expressing gender identity or sexual orientation, leading some individuals to quit their studies or jobs when faced with oppression, thereby denying them equal opportunity., The biological family is often the first site of violence and oppression for queer individuals. Family members may reject the gender identities of transgender children or consent to gender‑normalising surgeries for intersex children without the child’s consent. Homosexual persons may be forced into heterosexual marriages, and disclosure of sexual orientation can lead to monitoring, restriction of movement and threats of violence. Some families consider gender expression a mental illness and subject queer persons to conversion therapy, including electroconvulsive shocks. Rehabilitation centres have been reported where queer individuals are undressed, checked by female wardens, forced to share a single bathroom without privacy, and subjected to conditions described as worse than imprisonment., The transgender community faces discrimination in healthcare, where administrative formalities are not gender‑inclusive and there is a lack of knowledge about gender‑related diseases. Housing discrimination is also prevalent; members of the queer community find it difficult to rent houses and have been forced to relocate due to neighbours’ assumptions of parties and disturbances. State instruments tasked with protecting human rights often perpetuate violence. Research by the National Institute of Epidemiology involving around 60,000 transgender participants revealed that law‑enforcement agencies are the largest perpetrators of violence against the transgender community. Transgender women incarcerated with male inmates have reported sexual assault and mental harassment. Lesbian and gay couples seeking police protection from family violence are sometimes handed over to their families, and police have colluded with families despite court orders granting protection., The Supreme Court in National Legal Services Authority (supra) declared that the transgender community must not be subsumed within the gender binary and must be treated as a third gender in the eyes of the law. The Court directed the Central and State governments to address stigma and oppression faced by the community and to create public awareness. Parliament enacted the Transgender Persons (Protection of Rights) Act, 2019 to protect the rights of the transgender community and provide welfare measures, including opportunities in education and social sectors. Despite the Court’s decision and the Act, transgender persons continue to be denied equal citizenship, face physical and sexual violence, are often forced to undergo sex‑reassignment surgeries before their rights are recognised, and are subjected to hate speech and media stereotyping., The petitioners, who are members of the LGBTQIA+ community, contend that the State, through the operation of the current legal regime, discriminates against them by implicitly excluding them from the civic institution of marriage. They invoke the equality code of the Constitution to seek legal recognition of their relationship in the form of marriage, without seeking exclusive benefits unavailable to heterosexuals. Learned senior counsel Mukul Rohatgi submitted that the Supreme Court’s jurisprudence on LGBTQIA+ rights declares that LGBTQIA+ persons are entitled to dignity, equality and privacy, which includes the fundamental right to marry a person of their choice. He argued that Articles 19 and 21 guarantee the right to marry, that the Special Marriage Act violates the right to dignity and decisional autonomy of LGBTQIA+ persons and therefore contravenes Article 21, and that excluding LGBTQIA+ persons from the Special Marriage Act discriminates on the basis of sexual orientation, violating Articles 14 and 15. He further contended that the Special Marriage Act lacks a constitutionally valid intelligible differentia, has no rational nexus with its object, and that recognising marriage equality upholds constitutional morality and international obligations. Senior counsel Abhishek Manu Singhvi submitted that the Special Marriage Act is unconstitutional because it discriminates on the grounds of sexual orientation, violating Articles 14, 15, 19 and 21. He emphasized that marriage is the basis of a couple’s ability to fully participate in society, providing social validation, dignity, security and legal benefits, and that the Act can be read down to include same‑sex marriages consistent with the Constitution.
id_1381	1	The word \man\ in Section 2(b) includes \any person\, and correspondingly the word \woman\ includes \any person\. Reliance was placed on Union of India v. Naveen Jindal (2004) 2 Supreme Court Cases 510. The words \man\ and \woman\ include trans‑men, trans‑women, intersex and non‑binary individuals as the case may be. Section 4(c) enacts only an age‑based exclusion for persons otherwise eligible to marry under the provisions of Section 4, and shall not be construed to impose any disability based on gender, sexual orientation, or sexual identity of the parties. For same‑sex couples, Section 4(c) can be read as a single age restriction of either eighteen or twenty‑one years, or as prescribing the minimum age of eighteen for both parties in a lesbian relationship and twenty‑one for both parties in a gay relationship. For non‑binary and intersex persons, the Special Marriage Act may be read as imposing no restriction beyond that imposed by other laws which stipulate the age at which persons become capable of binding themselves under law, i.e., eighteen years. The Supreme Court of India may lay down guidelines as an interim measure while leaving it open to Parliament to fill the vacuum in due course of time., The reference to \widow\ and \widower\ in Schedules II and III must be read as \widow or widower\ and \widower or widow\, as the case may be, and shall not be construed to impose any disability based on gender, sexual orientation, or sexual identity of the parties. Reliance was placed on National Legal Services Authority (supra). References to bride and bridegroom in Schedules III and IV must be read as \bride or bridegroom\, as the case may be, and shall not be construed to impose any disability based on gender, sexual orientation, or sexual identity of the parties. The Foreign Marriage Act, 1969 can similarly be read down. The relief sought by the petitioners is workable. In reading down the Special Marriage Act and the Foreign Marriage Act to achieve a constitutionally compliant interpretation, neither the text of the statutes nor the intention of Parliament act as a limitation; only the underlying thrust of the legislation and the institutional capacity of the Supreme Court of India are relevant., The underlying thrust of the Special Marriage Act is that it was designed to facilitate marriages lying outside the pale of social acceptability. Reliance was placed on Ghaidan v. Godin‑Mendoza [2004]. In the alternative, the principle of updating construction ought to be applied to the Special Marriage Act. Courts may expand the existing words of a statute to further the march of social norms and contemporary realities. Some laws, such as the Protection of Women Against Domestic Violence Act, 2005, the Dowry Prohibition Act, 1961, and provisions pertaining to cruelty in the Indian Penal Code, 1860, were enacted to address structural imbalances of power between men and women in a heteronormative setting. These provisions do not impact whether same‑sex couples have a right to marry and are beyond the scope of the petitions., Mr. Raju Ramachandran, learned senior counsel, submitted that the petitioners have a fundamental right to marry a person of their own choice under Articles 14, 15, 19, 21 and 25 of the Constitution, and any exclusion or discrimination incorporated in Section 4(c) and other provisions of the Special Marriage Act is ultra‑violes the Constitution. The denial of their right to marry violates Articles 14, 15, 19, 21 and 25. Article 21 encompasses the right to happiness, which includes a fulfilling union with a person of one's choice. The exclusion of the petitioners from the institution of civil marriage under the Special Marriage Act, 1954, is inconsistent with the object of the law, i.e., to facilitate any marriage between two Indians irrespective of caste, creed or religion. The systemic nature of natal family violence against LGBTQIA+ persons, owing to their sexual or gender identity, and the misuse of the criminal law machinery by families, often in collusion with local police, makes it imperative for the Supreme Court of India to frame guidelines concerning police action in dealing with cases of adult and consenting queer and transgender persons. The special provisions for a wife in a heterosexual marriage under the Special Marriage Act need not be interpreted by this Court while deciding this batch of petitions, as they are protective provisions for women in pursuance of the constitutional mandate in Article 15(3). Declarations by the Court as to rights of people are followed by legislation; for instance, the rights declared in National Legal Services Authority (supra) were given effect to in the Transgender Persons Act. The doctrine of reading‑in is well‑recognised in Indian jurisprudence. The Union of India has argued that only Parliament can grant a new socio‑legal status of marriage to LGBTQ persons after extensive consultations, but the rights of the LGBTQIA+ community cannot be made contingent on the opinion of the majority., Mr. K V Vishwanathan, learned senior counsel, submitted that under Article 21 of the Constitution all persons have a fundamental right to choose a partner. International covenants to which India is a signatory, including the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights, impose a duty upon the State not to interfere with the right of a person to marry and have a family of their own choice and to protect familial rights without discrimination on the basis of sexuality, race or religion. Statutes regulating marriage in India must be read as inclusive of all gender identities and sexualities in view of the pronouncements of this Supreme Court of India in National Legal Services Authority (supra) and Navtej Singh Johar v. Union of India (supra). Courts across the country as well as state policies and welfare schemes have recognised and accorded equal status to unions between LGBTQ persons. A marriage entered into by a transgender person must be fully recognised by the State. The Supreme Court of India has previously issued guidelines to protect citizens against discrimination where there existed a lacuna in the law. The freedom to choose a partner in marriage is covered under Article 19(1)(a) as an expression, under Article 19(1)(c) as an association or union, and under Article 19(1)(e) as an exercise of the right to reside and settle in any part of the territory of India., Ms. Geetha Luthra, learned senior counsel, submitted that the Foreign Marriage Act is applicable to a couple if at least one of them is an Indian citizen. The Act travels with the citizen to a foreign jurisdiction to extend its protection by recognizing the citizen's marriage contracted under foreign law, or by allowing a citizen to solemnise their marriage under Indian law even when they are abroad. In terms of Section 17 of the Foreign Marriage Act, a marriage must be valid under foreign law and consistent with international law. All citizens, including LGBTQIA+ citizens, are entitled to all rights available to Indian citizens even when abroad. Articles 19 and 21 of the Constitution guarantee all persons the right to marry a person of their choice, including LGBTQIA+ citizens. The Foreign Marriage Act violates the right to dignity and decisional autonomy of LGBTQIA+ persons and is discriminatory. The object of the Foreign Marriage Act in adopting the scheme of the Special Marriage Act is to provide a uniform, civil and secular marriage law for a couple, either of whom is an Indian citizen. By recognizing marriages only between opposite‑sex couples, the effect of the law is to deny same‑sex and gender‑non‑conforming couples the right to marry a person of their choice, solely on grounds of sexual orientation and gender identity, violative of Article 15 of the Constitution. The Foreign Marriage Act and the Special Marriage Act are pari materia and must be interpreted similarly with regard to same‑sex and gender‑non‑conforming marriages. Recognition of marriage of same‑sex and gender‑non‑conforming couples under the Foreign Marriage Act furthers the comity of nations, and the grant of reliefs does not render the provisions of the Act or other statutes employing gendered terminology unworkable., Mr. Anand Grover, learned senior counsel, submitted that marriage remains fundamental to the functioning of society and to avail important schemes under the modern nation‑state, such as joint tax benefits and rights of surrogacy. The Foreign Marriage Act must be interpreted liberally to advance the cause of society at large and must not be interpreted to cause hardship. The failure of the Special Marriage Act to recognise same‑sex marriages violates Articles 14 and 15 of the Constitution because it fails the reasonable classification test, is manifestly arbitrary, and discriminates based on gender identity and sexual orientation. It also violates Article 19(1)(a) because sexuality, gender expression and marriage are forms of expression, and Article 19(1)(c) because the right to intimate associations is protected. Same‑sex marriages or gender‑non‑conforming marriages form a part of Indian tradition and culture. Queerness or homosexuality is not an urban, elite conception; numerous queer couples from villages and towns in India have expressed their sexuality, chosen their partners and entered into the institution of marriage. There is no traditional bar on marriage between non‑heterosexual persons; excerpts from various scriptures support this proposition., Ms. Jayna Kothari, learned senior counsel, submitted that the Special Marriage Act ought to be read to include the words \spouse\ and \person\ so as to include transgender persons within its ambit. Failure to do so amounts to a violation of the right of transgender persons to equality and equal protection of the laws under Article 14 of the Constitution. The Act discriminates on the basis of sex, gender identity and sexual orientation, thereby violating Article 15. The denial of the right to marry to persons based on their gender identity is a denial of the right to dignity, personal autonomy and liberty under Article 21. Intersex persons have the same rights as all other persons in India, including the right to marry. The right to a family is available under Article 21, and this right includes the right to marry; the Special Marriage Act is violative of the right of transgender persons to have a family., Dr. Menaka Guruswamy, learned senior counsel, submitted that the Indian Parliament is a creature of the Constitution and does not enjoy unfettered sovereignty. The supremacy of the Constitution is protected by the Supreme Court of India by interpreting laws in consonance with constitutional values. The Court's power of judicial review over legislative action is part of the basic structure of the Constitution. Constitutional courts are empowered to review statutory law to ensure its conformity with constitutional values; the courts do not need to wait for the legislature to enact or amend law to recognise same‑sex marriage. The provisions of the Special Marriage Act, insofar as they do not recognise same‑sex marriages, are unconstitutional as they violate Articles 14, 15, 19, 21 and 25 of the Constitution. To save the Act from the vice of unconstitutionality, it must be read up to recognise same‑sex marriages. Recognition of same‑sex marriages under the Act is consistent with the evolving conception of the institution of marriage, which is a time‑honoured tradition in Indian society. The gendered references in the Act are capable of being read to recognise same‑sex marriages, and the State has no legitimate interest in restricting the institution of marriage to heterosexual couples alone., Ms. Vrinda Grover, learned senior counsel, submitted that interference, opposition and violence from natal families, irrespective of marital status, violates the fundamental right to life and personal liberty under Article 21. Non‑recognition of atypical families or chosen families beyond the constraints of marriage, blood or adoption violates Articles 14, 15, 19 and 21. Non‑recognition of marriage between two consenting adults on the basis of gender identity or sexual orientation under the Special Marriage Act violates Articles 14, 15, 19 and 21. Constitutional courts sometimes accord undue deference to the natal family, ignoring the coercion and violence that queer and transgender persons face within their homes. The Supreme Court of India ought to issue directions to all state governments to instruct police officers to compulsorily follow the mandate of Sections 41 and 41‑A of the Code of Criminal Procedure, 1973 when responding to complaints involving queer and transgender adults who voluntarily leave natal homes. Issues of workability in statutory provisions do not preclude the Court from protecting rights under Part III of the Constitution., Ms. Karuna Nundy, learned counsel, submitted that a spouse of foreign origin of an Indian citizen or Overseas Citizen of India cardholder is entitled to apply for registration as an Overseas Citizen of India under Section 7A(1)(d) of the Citizenship Act, 1955. Section 7A(1)(d) is gender, sex and sexuality neutral, unlike the Foreign Marriage Act and the Special Marriage Act. The absence of any conditions regarding gender, sex or sexuality of the parties is a casus omissus in the Citizenship Act; the Court cannot supply a casus omissus into a statute by judicial interpretation except in circumstances of clear necessity. Recognition of a foreign marriage between two non‑citizens is a mere ministerial act; only the substantive law of the foreign jurisdiction is relevant. It would be manifestly arbitrary and contrary to Article 14 for the law to accord a larger ambit for registration of marriages to an Overseas Citizen of India than to a citizen of the country married in a foreign jurisdiction, and a harmonious construction of the Foreign Marriage Act with the Citizenship Act is required. Denial of the right to marry for queer persons violates Articles 14, 15, 19 and 21. Rule 5 of the Transgender Persons (Protection of Rights) Rules, 2020 recognises marriage of transgender persons because Form 2 contains the word \spouse\., Ms. Anitha Shenoy, learned senior counsel, submitted that the petitioners have a fundamental right to marry a person of their own choice under Articles 14, 15, 19, 21 and 25 of the Constitution, and any exclusion or discrimination from solemnisation or registration incorporated in Section 4(c) and Section 17(2) of the Foreign Marriage Act is ultra‑violes the Constitution. The denial of recognition of the petitioners' marriage is inconsistent with the object of the Foreign Marriage Act, which is not to invalidate marriages duly solemnised under foreign law by Indian citizens. The requirement of proof of a marital relationship for the purpose of joint adoption under Regulations 5(2)(a) and 5(3) is beyond the remit of Section 57 of the Juvenile Justice (Care and Protection of Children) Act, 2015, which extends joint adoption to relationships that are marriage‑like, including marriages between same‑sex couples solemnised overseas. Regulations 5(2)(a) and 5(3) of the Adoption Regulations, 2022 are ultra‑violes the Juvenile Justice Act and violate the principle of equality and non‑discrimination on the basis of sexual orientation under Articles 14 and 15, the right to adoption and motherhood protected under Article 21, and the right of a child to be adopted recognised under the Hague Convention on Protection of Children and Co‑operation in respect of Inter‑country Adoption, 1993 and the Convention on the Rights of the Child, 1989., Ms. Arundhati Katju, learned counsel, submitted that Article 21 protects the right to found a family and the right to a meaningful family life for all persons including LGBTQ persons. The law defines family and household broadly and is not limited to a biological man and woman and their children. Surrogacy and adoption are available only to married couples, thus denying LGBTQ couples the right to found a family. A child's right to a meaningful family life under Article 21, and its best interests, is protected by recognising its parents' relationship through marriage. Denying LGBTQ couples the right to marry violates Article 14 with respect to them and their children. The Special Marriage Act should be read expansively to save it from the vice of unconstitutionality and, in the alternative, should be struck down. Any interpretative difficulties arising from reading‑in must be decided on a case‑by‑case basis by the courts. A declaration of the rights of queer people by this Court will not preclude debates or discussions about queerness in Parliament or society., Ms. Amritananda Chakravorty, learned counsel, submitted that the Office Memorandum issued by the Central Adoption Resource Authority on 16 June 2022 is unconstitutional because it prevents same‑sex couples and gender‑non‑conforming couples from availing joint adoption. The requirements prescribed in the CARA Circular travel beyond the remit of the Juvenile Justice (Care and Protection of Children) Act. Section 2(49) of that Act defines \prospective adoptive parents\ as persons eligible to adopt a child as per the provisions of Section 57 and does not require prospective adoptive parents to be heterosexual. Section 57 does not specify marital status as a relevant factor in determining eligibility., Mr. Shivam Singh, learned counsel, submitted that it is unconstitutional for the State to discriminate against persons because of their innate characteristics. Upholding the heterosexual notion of marriage as the only constitutionally and legally sanctioned notion would perpetuate gender‑based stereotypes proscribed by the Constitution and is therefore violative of Article 15. By resorting to the General Clauses Act, 1897, Section 4(c) of the Special Marriage Act (which otherwise appears to be unconstitutional) can be read down such that the singular \male\ and \female\ includes the plural as well. Manu Srinath, learned counsel, submitted that persons whose fundamental rights are violated are entitled to seek judicial review of the violating act, and that judicial review may increase the pool of beneficiaries of legislation without amounting to legislation by courts. Jaideep Gupta, learned counsel, submitted that recognition of marriage by queer persons will protect them from so‑called conversion therapies and forced marriages, that queer marriages do not fall within the degrees of prohibited relationships, and that the age classification in the Special Marriage Act should be declared unconstitutional insofar as it mandates a different minimum age for men and women; the Court should declare twenty‑one years as the ideal age for all marriages. Thulasi Raj, learned counsel, submitted that the exclusion of the LGBT community from the institution of marriage is demeaning as defined by Deborah Hellman, and that prejudicial notions about sexuality inform the Special Marriage Act although its provisions may not expressly contain words indicating such prejudices. Tanushree Bhalla, learned counsel, submitted that the word \man\ in the Special Marriage Act ought to be read as meaning a cisgender man, a transgender man, and any person who assumes a role in the marriage that the statute or society confers on men, and that the word \woman\ must be interpreted similarly; Section 4(c) excludes intersex persons, and a minimum age for persons of the third gender may be read into Section 4(c)., Mr. R. Venkataramani, Attorney General of India, appearing for the Union of India, submitted that the Supreme Court of India has already issued constitutional declarations on the right to form a family and the right to marry of non‑heterosexual persons in Navtej Singh Johar v. Union of India (supra).
id_1381	2	The issue in this batch of petitions relates to fitting the constitutional declaration into relevant laws. The Special Marriage Act (SMA) is a species of the general marriage laws. Marriage is conceived to be a union between heterosexuals across all laws on marriage and procreation is an essential aspect of marriage. At the time when the SMA was enacted, an alternative conception of a union of persons other than heterosexuals did not exist. The SMA is intended to regulate marriage between heterosexuals irrespective of caste and religion. Thus, the omission of non‑heterosexual unions from the purview of the enactment would not render the enactment unconstitutional because of under‑inclusiveness. The SMA will be underinclusive only when a class of heterosexuals is excluded by the statute. There would be no internal cohesion in the SMA if Section 4 is read in a gender‑neutral manner; such an interpretation would render the implementation of Sections 19 to 21A, which link the SMA with other personal and non‑personal laws, difficult. Courts can use the interpretative tool of reading‑in only when the stated purpose of the law is not achieved. Since the purpose of the SMA is to regulate heterosexual marriages, the Supreme Court of India cannot read words into the enactment to expand its purview beyond what was originally conceptualized. It is up to Parliament to enact a special code regulating non‑heterosexual unions and the specific issues that such unions would face during and after the partnership, after comprehensively engaging with all stakeholders. The course adopted by the Supreme Court of India in Vishaka cannot be replicated for two reasons: one, there is no legislative vacuum in the instant case, and second, the non‑inclusion of all possible kinds of unions cannot be construed as a constitutional omission. Courts cannot issue directions granting legal recognition to non‑heterosexual marriages because it would require the redesigning of several enactments and rules. Marriage rights must be given only through the parliamentary process after wide consultation, and a declaration by the Supreme Court of India granting legal recognition to non‑heterosexual marriages accompanied with a scheme of rights would be anathema to separation of powers. The Supreme Court of India must not venture into the realm of policy making and law making., Mr Tushar Mehta, learned Solicitor General appearing for the Union of India, made the following submissions: The institution of marriage occupies a central role in the sustenance and progression of humankind. The prominent components of a marriage are companionship, sexual intimacy, and most importantly, procreation. Marriage (from an individual perspective) serves the purpose of sustaining an individual's gene pool. From a societal perspective, marriage contributes towards the proliferation of future generations for the sustenance of humankind. The Constitution does not recognize a right to marry. An expression of a person's sexuality is protected under Article 19(1)(a) of the Constitution. However, marriage cannot be traced to the right to freedom of expression or the right to form unions under Article 19(1)(c). The Supreme Court of India has not previously recognized the right to marry under the Constitution. The observations of the Supreme Court of India in Shafin Jahan and Shakti Vahini that the petitioners' right to marry has been violated must be read in the specific context of those judgments. In those cases, the right to marry which is conferred by the legislature to inter‑caste and inter‑religious couples was violated by State and non‑State actors. Marriage is a creation of statutes. The State, by virtue of Entry 5 of List III of the Seventh Schedule, has the power to regulate the institution of marriage. In exercise of this power, the legislature has prescribed various conditions which must be fulfilled before legal recognition can be given to a union. These conditions inter alia include the minimum age to be able to consent to a marriage, the prohibition of bigamy, and the bar against marrying within the degrees of prohibited relationship. The State is not under an obligation to grant legal recognition to every type of relationship. The State only recognizes relationships when there exists a legitimate State interest. The State has a legitimate interest in legally recognizing heterosexual relationships for the sustenance of society., After the decriminalisation of homosexuality in Navtej, members of the LGBTQIA+ community have the freedom and autonomy to choose their partners without restraints on gender and sexuality. However, the decriminalisation of the sexual offence does not cast an obligation on the State to grant legal recognition to such relationships or unions. Marriage is a legal privilege; it is conditional upon statutory or societal conditions. The right to choose a partner does not necessarily imply that there is a right to marry a partner of choice. The Courts do not have the power to decide if legal recognition can be granted to a union of non‑heterosexual individuals. This is an issue which must necessarily be decided by the legislature, being the elected representatives of the citizens. It would become impossible to deny legal recognition to practices such as incest or polygamy if non‑heterosexual couples are granted the right to marry. Marriage is a public institution. It falls in the outer‑most zone of privacy and is thus susceptible to the highest degree of State regulation. The Supreme Court of India in Navtej only granted protection to the intimate and intermediate zone of privacy of non‑heterosexual couples. Both the father and the mother have a significant and unique role in the upbringing of children. In non‑heterosexual unions, the child born out of surrogacy or artificial reproductive technology or adopted by the couple would feel the absence of either a father or a mother. The State does not grant legal recognition to homosexual unions in the form of marriage to protect the interest of the children. This is a legitimate State interest. The petitioners have not submitted sufficient data to back their claim that the interest of a child brought up by a non‑heterosexual couple is protected. Granting legal recognition to non‑heterosexual unions would dilute heterosexual marriages. For example, in the Netherlands, more heterosexual couples have opted for domestic partnerships and cohabitation after legal recognition was granted to non‑heterosexual unions. Non‑heterosexual unions are not granted legal recognition to protect the institution of marriage., The impugned provisions of the SMA are constitutional because: the legislative debates during the introduction of the SMA indicate that Parliament made a conscious decision to exclude non‑heterosexual unions from the ambit of the SMA; the object of the SMA is to grant (and regulate) legal recognition to inter‑faith and inter‑caste unions of heterosexual couples, and the provisions of the SMA have a reasonable nexus to this object; there is an intelligible differentia in classifying unions into heterosexual and non‑heterosexual partnerships because heterosexual couples sustain a society through procreation. In fact, the Transgender Persons Act also classifies persons into homosexuals and heterosexuals and grants substantive rights to the members of the LGBTQIA+ community in furtherance of the mandate of substantive equality. The Transgender Persons Act recognizes the autonomy of the members of the LGBTQIA+ community to choose a partner of their choice; the constitutionality of a statute cannot be challenged on the ground of under‑inclusion; an emerging body of evidence indicates that homosexuality may be an acquired characteristic and not an innate characteristic. Children who have been exposed to homosexual experiences are more likely to identify as homosexual on attaining adulthood. Thus, the Supreme Court of India must not approach this issue from a linear reductionist perspective. Further, the argument of the petitioners that the SMA is unconstitutional because it excludes a class based on innate characteristics is erroneous., The SMA would become unworkable if it is read in a gender‑neutral manner. It would also amount to the Supreme Court of India re‑drafting a large number of provisions: Section 2(b) read with the First Schedule prescribes distinctive degrees of prohibited relationships for the bride and the groom; according to Section 4(c), the male must have completed twenty‑one years of age and the female must have completed eighteen years of age at the time of marriage. Reading the phrase spouse in place of male and female would render the distinctive minimum age requirement for marriage based on gender otiose; the form of the statutory oath which the parties are required to take for the solemnisation of their marriage expressly uses the phrases wife and husband; according to Section 21, the rules of succession provided in the Indian Succession Act 1925 govern the succession of property of any person who is married under the SMA. The Indian Succession Act prescribes different rules and procedures for succession based on gender. Reading the provisions of the SMA in a gender‑neutral manner would impact the interpretation of the provisions of the Indian Succession Act as well; by virtue of Section 21A, the rules of succession under the Hindu Marriage Act shall apply for marriages solemnised between a male and female professing the Hindu, Buddhist, Sikh or Jain religion. The Hindu Succession Act prescribes different rules for succession based on gender. Reading the provisions of the SMA in a gender‑neutral manner would render the Hindu Succession Act unworkable; other provisions of the SMA such as Sections 27, 31, 36, and 37 cater to the needs and requirements of a woman in a heterosexual marriage. A reading of the SMA in a gender‑neutral manner would impact the interpretation of these provisions. By declaring that non‑heterosexual couples have a right to marry, the Supreme Court of India would be granting legal recognition to a new social relationship. Such a declaration could also pre‑empt debates on this issue in the legislature. The term spouse in Section 7A of the Citizenship Act 1955 cannot be read in a gender‑neutral manner. Section 7A of the Citizenship Act applies to the same class of persons to whom the Foreign Marriage Act applies. The Foreign Marriage Act expressly uses the phrases bride and bridegroom. Section 4 of the Foreign Marriage Act prescribes the same conditions for the registration of a marriage as Section 4 of the SMA., Mr Kapil Sibal, learned senior counsel appearing for an intervenor, made the following submissions: Marriage was defined by the social acceptability of a relationship even before it was codified. The heterosexual nature of a marriage was not introduced by law. Law merely regulated unions which were socio‑historically recognised. The law has always differentiated between heterosexual and non‑heterosexual unions; a legal recognition of a union is premised on the recognition of a relationship on an individual level, family level, and societal level; the right of a person to choose a partner of their choice is protected under Article 21. However, the legislative recognition of such a choice is not a fundamental right; the right to marry cannot be traced to the right to privacy. The right to privacy postulates the right to be left alone. There is a negative obligation on the State and the society to not interfere with choices of individuals. However, if the exercise of the right to privacy has a public dimension, the State must regulate the exercise of the right in the larger interest of the community. The State has, in the past, regulated the parameters of choice within the realm of marriage with respect to the number of partners and the age of marriage. Thus, the right to the recognition of non‑heterosexual unions is not traceable in Article 21. The South African Supreme Court in Minister of Home Affairs v. Fourie and the United States Supreme Court in Obergefell v. Hodges, while recognising the right to marry, acknowledged the importance and relevance of social debate and public discourse on the issue. The courts observed that the public has become more accepting of non‑heterosexual unions. While it may not be necessary to reach public consensus on social issues, it is still important to have some form of discourse on the issue, be it through law commissions, referendums, bills in the legislature, or even High Court decisions; public engagement also goes hand‑in‑hand with an incrementalistic approach by the courts or the legislature. For example, Mexico City recognised cohabitation partnership of homosexual unions in 2006. Three years later, their right to marry was recognised. In South Africa, before the judgment in Fourie, the constitutional court had dealt with the criminalisation of sodomy, the rights of same‑sex immigrant partners, the right to adoption of same‑sex partners, and the non‑inclusion of same‑sex partners in a statute providing pension rights; this Court, instead of limiting its judgment to the reliefs sought by the petitioners, must also address the following issues: (i) whether the LGBTQIA+ community, being a sexual minority, is entitled to be protected even in the absence of a law; (ii) the recognition of the hindrances faced by LGBTQIA+ unions and the procedure to resolve the difficulties; and (iii) the necessity of administrative procedures and guidelines recognizing that sexual orientation is a physiological phenomenon and that same‑sex unions must not be discriminated against. The assumption of the petitioners that both law and society must consider non‑heterosexual unions as belonging to the same class as heterosexual unions without distinction based on sexual orientation is wrong. The exclusion of non‑heterosexual unions from the SMA is not violative of Articles 14 and 15 of the Constitution; marriage between any two persons as provided in Section 4 of the SMA and the Foreign Marriage Act cannot include non‑heterosexual unions for the following reasons: Section 4(a) states that marriage cannot be solemnised if either party has a spouse living at the time of marriage. The SMA, when it was enacted, referred to marriages which had taken place before it came into force. In that case, the word spouse could have only been used in the context of heterosexual marriages; the mere usage of a gender‑neutral term does not indicate the legislative will to include non‑heterosexual unions within the ambit of the enactment., Mr Arvind P. Datar, learned senior counsel appearing for an intervenor, made the following submissions: This Court has recognised the right to marry in K.S. Puttaswamy (supra), Shafin Jahan (supra), Shakti Vahini (supra) and Navtej (supra). However, only Justice Nariman's opinion in Navtej held that non‑heterosexual couples also have a right to marry. A statute can be struck down after a passage of time only if the rationale of the law ceases to exist, as in the case of Section 377 of the Indian Penal Code where medical research indicated that same‑sex relationships are not unnatural or against the order of nature. This Court, while interpreting provisions of a statute, can iron out the creases but not alter the fabric. The exercise of reading‑up can only be undertaken by the Courts when it would be consistent with legislative intention, would not alter the nature of the enactment, and when the new state of affairs would be of the same kind as the earlier state of affairs to which the enactment applies; the judgment of the High Court of Madras in Arunkumar interpreting the word bride in the Hindu Marriage Act to include transgender and intersex persons is contrary to the judgment of this Court in Madhu Kishwar v. State of Bihar where it was held that male pronouns must not be expansively interpreted to include female pronouns within their ambit; the legal recognition of non‑heterosexual unions is a polycentric issue which cannot be resolved solely by the judiciary; unenumerated rights or derivative rights, which are recognised by courts through judicial interpretation, are inchoate rights because they are an exception to the rule of ubi jus ibi remedium. Thus, even if this Court recognises the petitioners' right to marry, it is not enforceable., Ms Aishwarya Bhati, learned Additional Solicitor General appearing for an intervenor, made the following submissions: Article 21 guarantees that every child will have the best upbringing. The petitioners have not submitted any data to prove that the interests of the child would be protected if they are raised by non‑heterosexual parents. A child born to a heterosexual couple is innately adaptable to a similar family environment and naturally seeks out a family environment which is comparable to their birth family. Chapter II of the Juvenile Justice Act, which lays down the General Principles of Care and Protection of Children, stresses upon the best interest of the child. Principle XIII states that every child in the juvenile justice system has a right to be restored to the same socio‑economic and cultural status as they were earlier in. Men and women are differentiated for the purpose of adoption, assisted reproduction, and surrogate reproduction. For example, the law does not permit a man to adopt a girl child. The scheme of the laws relating to adoption and surrogacy must be revamped for the inclusion of any of the excluded categories of intending parents; the law protects a child by assuming that they are incapable of entering into contracts, of committing an offence, and of consenting to a sexual relationship. Thus, children cannot be imposed upon with emerging and evolving notions of gender fluidity. Children cannot be made guinea pigs of an evolving social experiment. The State is justified in prescribing reasonable restrictions for adoption, assisted reproductive technology, and surrogacy based on the welfare of children., Mr Rakesh Dwivedi, learned senior counsel appearing for the State of Madhya Pradesh, made the following submissions: Only thirty‑four of the one hundred and ninety‑four countries have recognised marriage between non‑heterosexual individuals. Out of the thirty‑four countries, the legislature has recognized it in twenty‑four of them. At least twenty of the twenty‑four countries enacted a framework for registered partnerships or civil unions for granting legal recognition to non‑heterosexual unions. In ten countries, the courts have directed the State to recognise non‑heterosexual marriages. The approach taken by the courts in these ten countries is not uniform; it is specific to social complexities and legal arrangements in each of the countries. The laws relating to marriage, and the benefits (and rights) which accrue because of marriage, are not uniform. The laws take into account religious and regional differences. The principle of non‑discrimination in Articles 14 and 15(1) does not mandate that marriage must be organised and recognised in a uniform manner. The principle of equality does not postulate uniformity; the principle of non‑discrimination in Article 14 is not violated if the law is not all‑embracing. The legislature can choose to remedy certain degrees of harm; it is for the legislature to decide if non‑heterosexual unions must be legally recognised, and what benefits and entitlements must be conferred to the union; legislations governing unions and the benefits which accrue because of unions do not become unconstitutional after the decriminalisation of homosexuality in Navtej. Decriminalisation of a sexual offence does not automatically confer legal recognition to a union; the opinion of the majority in Navtej held that homosexuals have a right to form a union under Article 21. This Court specifically observed that a union does not mean marriage. Thus, Navtej has ruled out the possibility of non‑heterosexual marriages; the observation in Puttaswamy that the State has a positive obligation to provide legal protection to enable the exercise of choice was limited to the specific context of data protection. Such an obligation can be imposed on the State only when a right is infringed because of actions of the State., Mr Maninder Singh, learned senior counsel, submitted that Section 112 of the Indian Evidence Act 1872, which provides that birth during the sustenance of marriage or two hundred and eighty days after the dissolution of marriage is a conclusive proof of legitimacy, establishes that procreation is a chief component of marriage. He further submitted that an alteration of the chief component of marriage would render other laws which are premised on the heteronormative nature of marriage unworkable., Mr Atamaram Nadkarni, senior counsel appearing for an intervenor (Akhil Bharatiya Sant Samiti), submitted that the SMA is interwoven with personal law. He argued that the recognition of non‑heterosexual marriages under the SMA would impact personal laws on succession and adoption., Ms Manisha Lavkumar, learned senior counsel appearing for the State of Gujarat, made the following submissions: Though the rules of marriage continue to evolve, they are still grounded in heterosexual relationships; there is an overarching State interest in excluding non‑heterosexual unions from the ambit of marriage because it regulates matrimonial conduct, preserves social order, and ensures the progression of society in a legitimate manner; the State can impose reasonable restrictions on individual autonomy and consent by introducing conditions such as the number of marriages, the minimum age for marriage and the degrees of prohibited relationship. The heterosexual nature of a relationship is one such reasonable restriction; the Foreign Marriage Act is modelled on the SMA. The Foreign Marriage Act also envisages a heterosexual union. Section 23 of the Foreign Marriage Act states that the Central Government may recognise marriages solemnised in a foreign country as valid in India only if the law in the foreign country on marriage is similar to the Foreign Marriage Act. Since the Foreign Marriage Act only includes heterosexual unions, a non‑heterosexual marriage solemnised in a foreign country cannot be recognised in India., Mr J. Sai Deepak, learned counsel appearing on behalf of an intervenor, made the following submissions: A judicially sanctioned legal recognition of non‑heterosexual union would be a colonial top‑down imposition of morality. Such an approach would diminish democratic voices in the process; the issue of lack of legal recognition of non‑heterosexual unions is placed differently as opposed to the legislative vacuum on sexual harassment at workplaces. The history and purpose of the SMA does not permit the Court to issue guidelines under Article 141 as it did in Vishaka. The power under Article 141 to issue guidelines must be used sparingly and must not be used to take over the functions of the other organs of the State; the judgments of this Court in NALSA and the Madras High Court in Arunkumar suffer from internal and external inconsistencies; the LGBTQIA+ community is not a homogenous class. The Court cannot cater to the interests of a heterogeneous class which they constitute. The legislature would be better placed to cater to their needs., Mr M.R. Shamshad, learned counsel appearing for an intervenor, submitted that a declaration that non‑heterosexual couples have a right to marry would conflict with the tenets of religion where marriage is considered a heterosexual union., Ms Priya Aristotle, learned counsel appearing for an intervenor, submitted that granting non‑heterosexual couples parental rights would affect the children of heterosexual couples., Mr Sasmit Patra, learned counsel appearing for an intervenor, submitted that granting legal recognition to non‑heterosexual unions would require wide‑ranging amendments to various laws. It is only the legislature which has the capacity and functionality to deal with matters of such wide implication; a declaration by the Supreme Court of India that non‑heterosexual unions have a right to marry cannot be implemented without the aid of the legislature and executive; a social change of this magnitude will not be fructified if the role of the polity in the process is negligent., Ms Archana Pathak Dave, learned counsel appearing for an intervenor (Ex Servicemen Advocates Welfare Association), submitted that non‑heterosexual marriages must not be permitted particularly for personnel working in the armed forces because Article 33 permits restrictions on their fundamental rights. Granting legal recognition to non‑heterosexual marriages may dilute the disciplinary code in the army, the navy, and the air force, would create conflicts in the workplace over personal and religious beliefs, and would raise concerns about shared facilities such as communal showers and shared rooms., Ms Manisha Narain Agarwal, learned counsel appearing for an intervenor, submitted that the petitioners are seeking social acceptance of their relationships through an order of the Court. The Supreme Court of India does not have powers of such magnitude., Mr Atulesh Kumar, Ms Sanjeevani Agarwal, and Mr Som Thomas, appearing on behalf of various intervenors, adopted the above arguments., The petitioners in this batch of petitions have made certain general prayers, in addition to the prayers specific to the facts of their case. The general reliefs sought are summarized below. The petitioners seek that the Supreme Court of India declare that: LGBTQ persons have a right to marry a person of their choice regardless of religion, gender and sexual orientation; the Special Marriage Act is violative of Articles 14, 15, 19, 21 and 25 of the Constitution insofar as it does not provide for the solemnisation of marriage between same‑sex, gender non‑conforming or LGBTQ couples; the Special Marriage Act applies to any two persons who seek to get married, regardless of their gender identity and sexual orientation; the words husband and wife as well as any other gender‑specific term in the Special Marriage Act ought to be substituted by the word party or spouse; all rights, entitlements and benefits associated with the solemnisation and registration of marriage under the Special Marriage Act are applicable to LGBTQ persons; Sections 5, 6, 7, 8, 9, 10 and 46 of the Special Marriage Act, which contain requirements regarding the publication of a public notice of a proposed marriage and the domicile of the couple, and which empower the Marriage Registrar to receive and decide objections to the proposed marriage, are violative of Articles 14, 15, 19 and 21 of the Constitution; the validity of marriages already solemnised or registered under the Special Marriage Act will not be jeopardised if one spouse transitions to their self‑determined gender identity; the word spouse in Section 7A(1)(d) of the Citizenship Act is gender‑neutral and is applicable to all spouses of foreign origin regardless of sex or sexual orientation; LGBTQ couples have a right to register their marriages under Section 5 of the Hindu Marriage Act and under Section 17 of the Foreign Marriage Act if they are lawfully married in a foreign jurisdiction and at least one of them is an Indian citizen; the Foreign Marriage Act violates Articles 14, 15, 19 and 21 of the Constitution of India and is unconstitutional and void insofar as it does not provide for the registration of marriages between same‑sex or gender non‑conforming or LGBTQ couples; the Foreign Marriage Act applies to any two persons who seek to get married, regardless of their gender identity and sexual orientation; the words bride and bridegroom as well as any other gender‑specific term in the Foreign Marriage Act have to be substituted by the word party or spouse; all rights, entitlements and benefits associated with the solemnisation and registration of marriage under the Foreign Marriage Act are applicable to LGBTQ persons; Regulations 5(2)(a) and 5(3) read with Schedules II, III and VI of the Adoption Regulations are unconstitutional and ultra vires the Juvenile Justice Act insofar as they exclude LGBTQ couples from joint adoption; the words married couple and marital relationship used in Regulations 5(2)(a) and 5(3) of the Adoption Regulations encompass LGBTQ couples married under foreign laws.
id_1381	3	The phrases male applicant and female applicant are substituted by the phrases Prospective Adoptive Parent 1 and Prospective Adoptive Parent 2 (in case of applicant couples) in Schedules II, III, VI and VII of the Adoption Regulations; Section 5 of the Hindu Marriage Act does not distinguish between homosexual and heterosexual couples and the former have a right to marry under the Hindu Marriage Act; LGBTQ persons have a constitutional right to a chosen family in lieu of next of kin under all laws as an intrinsic part of their right to a dignified life under Article 21; An unmarried person can nominate any person(s) to act as their nominee or next of kin, irrespective of whether such person is a guardian, close relative or family member, with respect to healthcare decisions in case of incapacity such as the execution of Advance Directives and assigning any legal right, interest, title, claim or benefit accrued to the person; The State Governments must apply all preventative, remedial, protective, and punitive measures including the establishment of safe houses similar to the Garima Greh welfare scheme, in order to guarantee the safety and security of all individuals irrespective of gender identity and sexual orientation; The provisions of matrimonial statutes including the rules and regulations framed thereunder, to the extent that they are construed as requiring one male or bridegroom and one female or bride for the solemnisation of marriage, be read as neutral as to gender identity and sexual orientation; All marriages between couples in which either one or both partners are transgender or gender non‑conforming or who otherwise do not identify with the sex assigned to them at birth, may be solemnised under matrimonial statutes regardless of their gender identity and sexual orientation., In addition, the petitioners have sought directions to the Union Government, the State Governments, and district and police authorities to adopt and follow a protocol in cases which concern adult, consenting LGBTQ persons who require protection from their families, regardless of whether such persons are married., Supreme Court of India is vested with the authority to hear this case., The respondents argued that Supreme Court of India should not decide the issue of whether legal recognition in the form of marriage can be given to non‑heterosexual relationships. It was argued that this issue must necessarily be decided by the people themselves or through the elected representatives. It was also submitted that Supreme Court of India, by deciding the issue one way or the other, would pre‑empt any debate in the legislature., The respondents' submission is two‑fold: first, the Court does not have the power to decide this issue; and second, such a decision can be arrived at only through a process that reflects the electoral will., Article 32 vests Supreme Court of India with the power to enforce the rights in Part III of the Constitution., Part III of the Constitution of India enshrines the fundamental rights of the people of India. Article 13 of the Constitution stipulates that the State shall not make any law which takes away or abridges the rights conferred in Part III and that any law made in contravention of this condition shall, to the extent of the contravention, be void. Article 32 complements Article 13 and provides the right to a constitutional remedy for the enforcement of rights conferred by Part III: Article 32. Remedies for the enforcement of rights conferred by this Part. (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part., The Constitution of India is unique in that its provisions expressly accord the judiciary with the power to review the actions of the legislative and executive branches of government, unlike in many other countries. Article 32 makes fundamental rights justiciable and is worded broadly. The right to approach Supreme Court of India for the enforcement of the fundamental rights embodied in Part III is itself a fundamental right by virtue of Clause (1) of Article 32. It states that Supreme Court of India may be moved by appropriate proceedings. This expression means that the appropriateness of the proceedings depends on the relief sought by the petitioner., Clause (1) of Article 32 does not place any constraints on the power of Supreme Court of India to entertain claims that the rights enumerated in Part III have been violated., Similarly, Clause (2) is worded expansively and enlarges the scope of the powers of Supreme Court of India to enforce fundamental rights. First, Clause (2) provides Supreme Court of India with the power to issue directions, orders, or writs, which indicates that Supreme Court of India may mould the relief according to the requirements of the case before it and that it is not constrained to a particular set of cases in which a particular relief or set of reliefs may be granted. This expression indicates that the power of Supreme Court of India is not limited to striking down an offending statute, rule, or policy; rather, it extends to issuing directions or orders or writs for the enforcement of fundamental rights. Second, the word 'including' in Clause (2) indicates that the five writs mentioned in that clause are illustrative. The word 'including' is used as a word of enlargement. Supreme Court of India may issue directions, orders, or writs other than the five writs specified. Therefore, the manner in which Article 32 has been drafted does not limit the powers of Supreme Court of India. To the contrary, it clearly and unambiguously vests Supreme Court of India with the power to conduct judicial review and give effect to the fundamental rights enumerated in Part III., The extent of the powers vested in Supreme Court of India by Article 32 as envisaged by the framers of the Constitution can be understood from the Constituent Assembly's discussion of the provision which was eventually adopted as Article 32. Mr. H V Kamath was of the opinion that it was unwise to particularise the writs which Supreme Court of India ought to issue, and that Supreme Court of India should have the power to issue any directions it considered appropriate in a case. In service of this idea, he moved an amendment to substitute clause (2) of the provision which is now Article 32. The substituted clause was to read: 'The Supreme Court shall have power to issue such directions or orders or writs as it may consider necessary or appropriate for the enforcement of any of the rights conferred by this part.', Responding to this proposal, Dr. B R Ambedkar underscored that Supreme Court of India had been endowed with wide powers of a general nature: what has been done in the draft is to give general power as well as to propose particular remedies. The language of the article is very clear. These are quite general and wide terms. These writs ought to be mentioned by their name in the Constitution without prejudice to the right of the Supreme Court of India to do justice in some other way if it felt it was desirable to do so. I, therefore, say that Mr. Kamath need have no ground of complaint on that account., The power of Supreme Court of India to do justice is not, therefore, limited either by the manner in which Article 32 has been constructed or by any part of the Constitution. It is amply clear from both the plain meaning of Article 32 as well as the Constituent Assembly Debates that Supreme Court of India has the power to issue directions, orders, or writs for the enforcement of the rights incorporated in Part III of the Constitution., Judicial review and separation of powers. The doctrine of separation of powers, as it is traditionally understood, means that each of the three organs of the state (the legislature, the executive, and the judiciary) perform distinct functions in distinct spheres. No branch performs the function of any other branch. The traditional understanding of this doctrine (also termed the pure doctrine) does not animate the functioning of most modern democracies. That our Constitution does not reflect a rigid understanding of this doctrine has long been acknowledged by Supreme Court of India. In practice, a functional and nuanced version of this doctrine operates, where the essential functions of one arm of the state are not taken over by another arm and institutional comity guides the actions of each arm. In other words, the functional understanding of the separation of powers demands that no arm of the state reigns supreme over another., The Union of India suggested that Supreme Court of India would be violating the doctrine of separation of powers if it determines the issue in this case. The separation of powers undoubtedly forms a part of the basic structure of the Constitution, but equally, the power of courts to conduct judicial review is also a basic feature of the Constitution. The doctrine of separation of powers certainly does not operate as a bar against judicial review. In fact, judicial review promotes the separation of powers by seeing to it that no organ acts in excess of its constitutional mandate. It ensures that each organ acts within the bounds of its remit. Further, as discussed in the previous segment of this judgment, the Constitution demands that Supreme Court of India conduct judicial review and enforce the fundamental rights of the people. The framers of our Constitution were no doubt conscious of this doctrine when they provided for the power of judicial review. Being aware of its existence and what it postulates, they chose to adopt Article 32 which vests Supreme Court of India with broad powers. The doctrine of separation of powers cannot, therefore, stand in the way of Supreme Court of India issuing directions, orders, or writs for the enforcement of fundamental rights. The directions, orders, or writs issued for this purpose cannot encroach upon the domain of the legislature. Supreme Court of India cannot make law; it can only interpret it and give effect to it., The existence of the power of judicial review cannot be conflated with the manner in which the power is exercised. The exercise of the power of judicial review abides by settled restraints which acknowledge that the power of law making is entrusted to democratically elected legislative bodies and that the formulation and implementation of policy is entrusted to a government which is accountable to the legislature. In the exercise of its legislative function the legislature may incorporate policies which will operate as binding rules of conduct to operate in social, economic and political spaces. Judicial review is all about adjudicating the validity of legislative or executive action (or inaction) on the anvil of the fundamental freedoms incorporated in Part III and on the basis of constitutional provisions which structure and limit the exercise of power by the legislative and executive arms of the State., Judicial review is a constitutionally entrenched principle which emanates from Article 13. It is not a judicial construct. The power of judicial review has been expressly conferred by the Constitution. In the exercise of the power of judicial review, Supreme Court of India is cognizant of the fact that the legislature is a democratically elected body which is mandated to carry out the will of the people. It is in furtherance of this mandate that Parliament and the State legislatures enact laws. Courts are empowered to adjudicate upon the validity of legislation and administrative action on the anvil of the Constitution. In the exercise of the power of judicial review, Supreme Court of India does not design legislative policy or enter upon the legislative domain. Supreme Court of India will hence not enter into the legislative domain by issuing directions which for all intents and purposes would amount to enacting law or framing policy., The power of Supreme Court of India to enforce rights under Article 32 is different from the power of the legislature to enact laws. In Powers, Privileges and Immunities of State Legislatures, In re, a seven‑Judge Bench of Supreme Court of India held: whether or not there is distinct and rigid separation of powers under the Indian Constitution, there is no doubt that the Constitution has entrusted to the Judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental rights of the citizens. If the validity of any law is challenged before the courts, it is never suggested that the material question as to whether legislative authority has been exceeded or fundamental rights have been contravened can be decided by the legislatures themselves. Adjudication of such a dispute is entrusted solely and exclusively to the Judicature of this country. Hence, it falls squarely within the powers of Supreme Court of India to adjudicate whether the fundamental rights of queer persons have been infringed, as claimed by the petitioners., Supreme Court of India will not issue a mandamus to Parliament but will determine the scope and effect of certain fundamental rights. What do these rights mean and what are their incidents? What do they require of the state? What are their boundaries? In answering these questions, Supreme Court of India is not enacting law or framing policy but is performing its constitutionally mandated function of interpreting the Constitution and enforcing the rights it recognises. Supreme Court of India cannot ignore its duty to fulfil the mandate of Articles 13 and 32. The distinction between law‑making and adjudicating the rights of the people by interpreting the Constitution and enforcing these rights, as required by Article 32, cannot be forgotten., Supreme Court of India has previously utilised its power under Article 32 to issue directions or orders for the enforcement of fundamental rights. This power does not extend only to striking down an offending legislation but also to issuing substantive directions to give effect to fundamental rights, in certain situations. In Common Cause v. Union of India, a Constitution Bench of Supreme Court of India (of which Justice D Y Chandrachud was a part) found that the right to life, dignity, self‑determination, and individual autonomy meant that people had a right to die with dignity. Supreme Court of India delineated guidelines and safeguards in terms of which Advance Directives could be issued to cease medical treatment in certain circumstances. Similarly, in Vishaka, Supreme Court of India issued guidelines for the protection of women from sexual harassment at the workplace. These guidelines were grounded in the fundamental rights to equality under Article 14, to practise any profession or to carry out any occupation, trade or business under Article 19(1)(g), and to life and liberty under Article 21. The decisions of Supreme Court of India in Common Cause and Vishaka are significant because Supreme Court of India issued directions for the enforcement of fundamental rights in the absence of a law which was impugned before it., The power of judicial review must be construed in terms of the Constitution of India and not in terms of the position of law in other jurisdictions. A common mistake in the legal community is to refer to the doctrines and decisions of other jurisdictions regardless of the context in which they arose. The jurisprudence of other countries undoubtedly facilitates an exchange of ideas and acquaints us with the best practices in the field. It illuminates the potential benefits and pitfalls of a particular approach and enables us to dwell on whether to accept and if we do so, whether to improve on that approach. However, a particular doctrine or legal standard ought not to be borrowed blindly. The first and foremost authority is the Constitution or any law in India. An appropriate tool of interpretation must be used to discern the law as laid down by the Constitution or by any statute, rule, or regulation. This precept applies with equal force to the question of judicial review in India. Judicial review has to be conscious of our own social and cultural milieu and its diversity., Parliament being sovereign in England, the courts of England do not have the power to strike down a statute as being contrary to its basic law. This status of affairs cannot, of course, be superimposed on the relationship between our legislative bodies and courts. In Powers, Privileges and Immunities of State Legislatures, In re (supra), Supreme Court of India held that the Constitution is supreme and sovereign in India and that legislative bodies in India are not sovereign in the same way as Parliament is in England. Hence, the limitations which apply to the Supreme Court of the United Kingdom while it conducts judicial review do not apply to Supreme Court of India. Similarly, the restrictions on judicial review in the United States of America cannot be imported without any regard to our Constitution., The Union of India relied on various decisions of the Supreme Court of the United States of America including the decisions in Day‑Brite Lighting Inc. v. Missouri and the dissenting opinion of Oliver Wendell Holmes, J. in Lochner v. New York for the proposition that Supreme Court of India would be in danger of becoming a super legislature if it decided the issues which arise in the present proceedings. This argument misses the crux of the matter. The Supreme Court of the United States of America established its power of judicial review in Marbury v. Madison. The text of the US Constitution does not vest their courts with this power, unlike in India. The Constitution of India expressly authorises judicial review. While doing this the Constitution confers broad powers on Supreme Court of India as discussed in the previous segment of this judgment. This being the case, it is injudicious to borrow from the jurisprudence of the US on judicial review, its boundaries, legitimacy, and the type of cases which warrant deference to legislative bodies. In State of Madras v. V G Row, a Constitution Bench of Supreme Court of India held: we think it right to point out, what is sometimes overlooked, that our Constitution contains express provisions for judicial review of legislation as to its conformity with the Constitution, unlike as in America where the Supreme Court has assumed extensive powers of reviewing legislative Acts. If, then, the courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader's spirit, but in discharge of a duty plainly laid upon them by the Constitution. Similarly, in Romesh Thappar v. State of Madras, Supreme Court of India held that there was no remedy in the US which was analogous to the one provided by Article 32 of the Constitution of India. Therefore, the contours of the power of Supreme Court of India to conduct judicial review must be construed in terms of the Constitution of India and not in terms of the position of law in other jurisdictions., The argument of the respondents that any decision by Supreme Court of India on this issue would be anti‑democratic is not an argument that is specific to the issues which have been raised before us in this batch of petitions. Rather, it is an argument which strikes at the legitimacy of the judicial branch. The argument that the decision of the elected branch is democratic and that of the judicial branch is not is premised on the principle of electoral representation. The proposition is that the exercise of the power of judicial review would constrain the right of citizens to participate in political processes. This is because courts are vested with the power to overturn the will of the people which is expressed through their elected representatives., This is a narrow definition of democracy, where democracy is viewed through electoral mandates and not in constitutional terms. Additionally, it overlooks the importance of a Constitution which prescribes underlying values and rules of governance for the sustenance of a democratic regime. If all decisions of the elected wing of the State are considered to be democratic decisions purely because of the manner in which it is vested with power, what then is the purpose of the fundamental rights and the purpose of vesting Supreme Court of India with the power of judicial review? Framing the argument on the legitimacy of the decisions of Supreme Court of India purely in terms of electoral democracy ignores the Constitution itself and the values it seeks to engender., Electoral democracy – the process of elections based on the principle of one person one vote where all citizens who have the capacity to make rational decisions (which the law assumes are those who have crossed the age of eighteen) contribute towards collective decision making – is a cardinal element of constitutional democracy. Yet the Constitution does not confine the universe of a constitutional democracy to an electoral democracy. Other institutions of governance have critical roles and functions in enhancing the values of constitutional democracy. The Constitution does not envisage a narrow and procedural form of democracy. When the people of India entered into a social contract in the form of a Constitution, they chose the conception of democracy which not only focused on rule by elected bodies but also on certain substantive values and on institutional governance. The Constitution defined democracy in terms of equal rights in political participation and of self‑determination., When democracy is viewed in this substantive and broad manner, the role of courts is not democracy‑disabling but democracy‑enabling. Much like the elected branch, the legitimacy of courts is also rooted in democracy. It is rooted in not operating in a democratic manner because if it was, then courts may be swayed by considerations which govern and guide electoral democracy. By vesting the judicial branch with the power to review the actions of other institutions of governance (including the legislature and the executive) on the touchstone of constitutional values, the Constitution assigns a role to the judiciary. The institutions of governance place a check on the exercise of power of the other institutions to further constitutional values and produce better, more democratic outcomes. Courts contribute to the democratic process while deciding an issue based on competing constitutional values, or when persons who are unable to exercise their constitutional rights through the political process approach the court through its writ jurisdiction to seek the enforcement of their rights., Is queerness un‑Indian? Who is an Indian? What practices are Indian? Queerness is a natural phenomenon which is known to India since ancient times. The question of whether homosexuality or queerness is unnatural is no longer res integra, in view of the decision in Navtej Singh Johar where Supreme Court of India held that it is innate and natural. The contention of the Union of India that heterosexual unions precede law while homosexual unions do not cannot be accepted in view of the decision in Navtej Singh Johar where Supreme Court of India held that queer love has flourished in India since ancient times., The respondents have also averred that homosexuality or gender queerness is not native to India. This contention does not hold any water. In India, persons with a gender queer identity who do not fit into the binary of male and female have long been known by different names including hijras, kothis, aravanis, jogappas, thirunambis, nupi maanbas and nupi maanbis. In fact, the term transgender person as it is understood in English or the third gender does not always fully or accurately describe the gender identity of those who are known by some of these terms. Additionally, the social structure of the communities of transgender persons in India is unique and does not mirror western structures. It is native to our country. The judgment of Supreme Court of India in NALSA also explored the presence of the transgender identity and other forms of gender queerness in Indian lore., In With Respect to Sex: Negotiating Hijra Identity in South India, Gayatri Reddy documents the different manifestations of kinship in hijra communities, including the guru‑chela (or teacher‑disciple) relationship, the mother‑daughter relationship, and the jodi (or bond) with a husband. She describes how many hijras enter into unions with men, who are referred to as their pantis. These unions span over many months or many decades, depending on the couple in question. Many men in such unions have made their natal families aware about their relationship with their partner, and in some cases, the hijras would sometimes meet their partner’s natal family. They sometimes referred to their relationship as one of marriage. Men also assaulted their partners and displayed other violent tendencies. Some hijras maintained contact with their biological family, most notably the mother. Although many hijras were in romantic, long‑lasting partnerships with men or in touch with their natal family, they considered other hijras as constituting their family as opposed to their pantis or their biological families., In many communities, hijras are customarily invited to auspicious events such as the birth of a child to bless the family in question., Like the English language, some English words employed to describe queer identities may have originated in other countries. However, gender queerness, transgenderism, homosexuality, and queer sexual orientations are natural, age‑old phenomena which have historically been present in India. They have not been imported from the West. Moreover, if queerness is natural (which it is), it is by definition impossible for it to be borrowed from another culture or be an imitation of another culture., Queerness is not urban or elite. The respondents, including the Union of India, have contended that homosexuality and queer gender identities or transgenderism are predominantly present in urban areas and amongst the elite sections of society. They assert that variations in gender and sexual identity are largely unknown to rural India and amongst the working classes. Nothing could be further from the truth. While they may not use the words homosexuality, queer, lesbian, gay or any other term which populates the lexicon of English‑speaking persons, they enter into unions with persons of the same sex as them or with gender queer persons; these unions are often long‑lasting, and the couple performs a marriage ceremony. The incidence of queerness amongst the rural and working‑class communities has been documented in academic scholarship as well as newspaper reports. In the absence of evidence aliunde, the details narrated in newspaper reports are not facts which are proved in terms of the Indian Evidence Act 1872. However, in cases such as the present one which require Supreme Court of India to examine social phenomena and their incidence, newspaper reports serve as a useful tool in the exercise of illuminating social realities., Supreme Court of India need look no further than the petitioners in this case to illustrate the point that queerness is neither urban nor elite: one of the petitioners grew up in Durgapur, West Bengal and Delhi and states that she came to terms with her sexuality when she was an adult. Another petitioner in the same case grew up in Varanasi, Uttar Pradesh and states that she knew that she was a lesbian from a young age; one of the petitioners hails from Muktsar, Punjab and happens to be OBC. Another petitioner in the same case happens to be Dalit. They come from working class backgrounds; another petitioner was born in Mumbai to Catholic parents. She attempted to die by suicide and later had to beg on the streets in order to survive.
id_1381	4	Some petitioners before the Supreme Court of India are transgender persons and activists. One of them is a public personality, Akkai Padmashali, who hails from a non-English speaking, working‑class background. At a young age she left home and worked as an assistant in a shop selling ceramics but quit because she was unable to hide her true gender identity. Circumstances forced her to become a sex worker to sustain herself. Later she was awarded the Karnataka Rajyotsava Award, Karnataka's second highest civilian award, for her contribution to social service. Another petitioner who is a transgender person was born in a family of farmers who grew coconuts and betel leaves. She later worked in a factory and, like the first petitioner, was forced by circumstances to become a sex worker. She is now a social activist. A third petitioner is a lesbian who lives in Vadodara, Gujarat., Ruth Vanita, an academician, studied the history of queer marriage in India in her scholarly works. She narrates that she married a Jewish woman in 2000 with both Hindu and Jewish ceremonies. Her book titled Love's Rite: Same‑Sex Marriage in India and the West records numerous instances of queer unions and partnerships in India: two young women who were classmates fell in love; one underwent sex reassignment surgery in 1989, they married each other, and despite a complaint by the father of one partner, the couple lived together. In 1993 two women in Faridabad married each other in a Banke Bihari temple with a priest officiating. In the same year two men, one Indian and the other American, married according to Hindu rites in a ceremony in New Delhi. In 2004 a twenty‑four‑year‑old Dalit woman and a twenty‑two‑year‑old Jat woman travelled to Delhi and performed the rites of marriage in a temple despite family opposition. Two young women, whose parents were construction workers in Bhopal, Madhya Pradesh, ran away in 2004 and told the police they would live together regardless of attempts to separate them. Also in 2004 a twenty‑one‑year‑old Christian woman and a twenty‑three‑year‑old Hindu woman from a southern state declared their lifelong commitment after a tabloid alleged they were lesbians. Two young Muslim men, aged twenty‑two and twenty‑eight, married in Ghaziabad, Uttar Pradesh; their friends and family physically assaulted them but they continued to intend to live together. Two nurses in Patel Nagar, Delhi, met as students, fell in love, declared themselves life partners and lived together for fifteen years, with neighbours aware and unfazed., Other sources record varied instances of persons entering into atypical unions or expressing their homosexuality or gender identity: two Adivasi women married according to tribal customs in a small village in Koraput district, Orissa; a woman who was the daughter of a government school teacher and a woman whose father was a labourer garlanded each other in Hamirpur district, Uttar Pradesh and sought to register their marriage at the local sub‑registrar's office after divorcing their husbands; two women from Kanpur travelled to Delhi to marry each other; and young gay men in a small town called Barasat in West Bengal expressed their desire to be part of the queer community, one of them working in a clerical job. The AIDS Bhedbhav Virodhi Andolan (the AIDS Anti‑Discrimination Movement) released a citizen's report on the status of homosexuality in India, titled Less Than Gay (1991). The report discusses arguments about whether homosexuality is a western concept or restricted to the socio‑economically privileged classes and asserts that the queer community is not a coherent, easily definable group. It details the lived experiences of gay men and lesbian women collected by interviewing them., The report tells the stories of a lesbian hostel warden, a gay teacher at a government polytechnic college in Madhya Pradesh, an auto‑rickshaw driver in Pune, two male municipal sweepers in Mumbai who lived together and loved each other, and a gay man from a slum in Delhi. Ruth Vanita also documents attempted suicides and suicides arising from difficulties faced by persons in queer relationships: in 1980 Jyotsna and Jayshree died by suicide after jumping in front of a train in Gujarat, leaving a letter explaining they could not endure living apart after their marriages to men; Gita Darji and Kishori Shah, nurses, died by hanging in a village in Gujarat in 1988; and in January 2000 two young women named Bindu and Rajni were stopped from eloping, and a few days later jumped into a granite quarry in Kerala, leaving notes that they wished to die because it was impossible for them to live together., Maya Sharma's book Loving Women: Being Lesbian in Unprivileged India gives an account of various persons, most of whom are women, in same‑sex or queer relationships. The book, based on detailed interviews, focuses on working‑class persons and seeks to dispel the myth that lesbians in India are all urban, Westernised and from upper or middle classes. It highlights that public discourse has not created space for the voices and experiences of LGBTQ persons who also belong to marginalized communities. The subjects come from diverse religions and communities and work as domestic workers, factory workers, construction labourers, Home Guards and other professions., The discussion in this segment does not exhaust the rich history of LGBTQ persons in India, but it makes clear that homosexuality or queerness is not solely an urban concept nor restricted to upper classes or privileged communities. People may be queer regardless of whether they are from villages, small towns, semi‑urban or urban spaces, and regardless of caste or economic status. It is not only the English‑speaking man with a white‑collar job in a metropolitan city who can claim to be queer, but also the woman who works on a farm in an agricultural community. Persons may or may not identify with labels such as queer, gay, lesbian, trans, etc., but many Indians are gender‑queer or enter into relationships with others of the same sex. As a factory worker in Ajmer expressed, \I have not heard the word lesbian. I consider myself a male. I am attracted to women. Why create categories? We are all human beings.\, To imagine queer persons as existing only in urban and affluent spaces erases those who live in other parts of the country. It would be a mistake to conflate the urban with the elite, as many urban residents are poor or otherwise marginalized. Urban centres are themselves divided along lines of class, religion and caste, and not all city dwellers can be termed elite merely by virtue of residence. Expressions of queerness may be more visible in urban centres because cities afford a degree of anonymity and greater access to resources that enable voices to be heard. This does not mean that queer persons do not exist in smaller towns or villages, where they may face censure or violence., In pre‑colonial times the Indian subcontinent was home to a diverse population with its own understanding of sexuality, companionship, morality and love. Stories, myths and cultural practices indicate that what is now termed queerness was present, though not always accepted by the populace. Society did not always view queer identities as requiring special acceptance, as they formed part of ordinary daily life. The native way of life gradually changed with the entry of the British, who brought their own sense of morality and laws. This Supreme Court of India discussed the legal legacy of the colonizers in National Legal Services Authority and Navtej Singh Johar. Section 377 of the Indian Penal Code criminalised queer sexual acts, imposing British morality on the Indian cultural landscape. The British also enacted the Criminal Tribes Act, which provided for the registration, surveillance and control of certain criminal tribes and eunuchs, permitting the government to medically examine them, penalise them for dressing like a woman, dancing or playing music, and rendering their wills invalid. Although the Act was repealed after independence, its underlying prejudices persist in various central and state enactments on habitual offenders., The criminalisation of the LGBTQ community and the resultant prosecution under these laws, coupled with the violence enabled by them, drove large sections of the community underground. Society stigmatised any sexual orientation that was not heterosexual and any gender identity that was not cisgender. Many queer persons concealed their true selves, leading to a shrinking public presence even as homophobia and transphobia flourished. Some continued to live visibly, such as hijras, while others expressed their orientation only within the privacy of their homes or in front of a select few. Some entered into lavender marriages or front marriages, which are marriages of convenience meant to conceal the sexual orientation of one or both partners., It is evident that queerness is not of foreign origin; many shades of prejudice in India are remnants of a colonial past. Colonial laws and convictions engendered discriminatory attitudes that continue today. Those who claim queerness is borrowed from foreign soil overlook that recent visibility is not an assertion of a wholly new identity but a re‑assertion of an age‑old one. The establishment of a democratic nation‑state and the nurturing of democratic values over six decades have enabled more queer persons to exercise their inherent rights. The constitutional guarantees of liberty and equality have gradually become available to an increasing number of people, fostering an environment conducive to queer expression without fear of opprobrium., The respondents argued that a union between two persons of the same sex is not Indian. To determine whether a practice is Indian, one must consider that India is a diverse country with twenty‑eight states, eight Union Territories, a population of more than one billion, twenty‑two recognised languages, numerous other languages, at least eight religions and varied tribal and non‑tribal populations. A practice is Indian when it is present in India, takes place here or is practised by Indian citizens, regardless of whether it is ancient or recent. The constitutional guarantee does not fade based on the level of acceptability of a particular practice. Sexual and gender minorities are as Indian as cisgender and heterosexual citizens., There is no universal conception of marriage. Marriage is understood differently in law, religion and culture. Some religions consider marriage a sacrament while others consider it a contract. The law defines the conditions for a valid marriage, such as the minimum age of the parties, consent and the absence of prohibited relationships. A marriage is valid in the eyes of the law as long as the statutory preconditions are satisfied. For example, Section 27 of the Special Marriage Act provides that a party may present a petition for divorce on the ground that the other party is undergoing a sentence of imprisonment for seven years or more, but it does not automatically render the marriage void if one party is imprisoned., Marriage is a voluntary union of the mind, the body and the soul. It signifies a deep and abiding commitment to one another and a devotion to the relationship. When two people marry, they intend to be in a lifelong relationship, providing emotional, financial and spiritual support to each other. Love, respect and companionship are hallmarks of a successful marriage. Marriage is a gateway to the creation of a family through child‑bearing and child‑rearing, although it is not a precondition to the existence of a family. The sole purpose of marriage is not merely sexual relations or procreation, although those may be motivations. Sexual relations and procreation alone are not the exclusive foundation for marriage, and a valid marriage may exist without any of these elements due to choice or circumstance., A married couple may not have biological children because of age, fertility problems or personal choice. Couples who wish to have children may use assisted reproductive technologies, surrogacy, adoption or other methods. Many married couples may choose not to engage in sexual relations for various reasons. In some marriages the partners may reside in different homes or cities, temporarily or permanently. While the law identifies certain conduct as grounds for divorce, such conduct does not render a marriage void. The marriage continues to be a marriage even if it is atypical or runs contrary to an ideal notion of marriage. Society continues to consider such unions as marriages regardless of living arrangements or child‑bearing status., The respondents suggested that an ideal marriage contains many of the components discussed above, placing them as normative or aspirational values. However, there is no legal basis to elevate personal ideals to normative requirements. Constitutional ideals of human dignity, liberty, equality and fraternity demand respect for the autonomy and dignity of each person. The Supreme Court of India may intervene only when a decision or action is contrary to law or constitutional values; otherwise citizens are empowered to define the content of their lives and find meaning in their relationships., Different religions may have different understandings of marriage; for instance, some view it as a sacrament and others as a contract. Within a religious grouping there may be diverse social constructs of marriage, and within a particular community there may be different conceptions. Section 5(iv) of the Hindu Marriage Act stipulates that a marriage may be solemnised between two persons if they are not within the degrees of prohibited relationship, unless a custom or usage governing the parties permits their marriage. In many communities an uncle cannot marry his niece because no custom permits it, while in other communities such a marriage is customary and therefore permitted. Tribal communities often have their own customs that allow such unions, which are recognised by tribal customs even if not recognised by the general law., Procreation and the desire to have a family are significant characteristics of marriage, but heterosexual couples may also be unable or unwilling to procreate due to age, health or personal choice. The inability of queer couples to procreate does not act as a barrier to their entry into the institution of marriage, just as it does not prevent heterosexual couples who are unable or choose not to procreate. Viewing marriage solely through the lens of sexual relations or procreation is a disservice to all married couples because it renders invisible the myriad other aspects of marriage as an emotional union., The conception of marriage is not static. Historically, practices such as sati, widow remarriage and child marriage have evolved. Although far from universal, sati was once permitted and intertwined with marriage, leading to the death of widows on their husbands' funeral pyres. The Commission of Sati (Prevention) Act 1987 now criminalises attempts to commit sati, its abetment and glorification. In the past, women, especially from dominant castes, were not permitted to remarry after a husband's death; they were shaved and prohibited from wearing jewellery or colourful clothes, a condition considered a living death. Reformers such as Mahatma Jyotirao Phule, the Brahmo Samaj, Ishwar Chandra Vidyasagar and Tarabai Shinde advocated for widow remarriage, culminating in the Hindu Widows Remarriage Act 1856. Child marriage and the age of consent have also undergone significant legal and social changes.
id_1381	5	A discussion of the history of marriage in India would be incomplete without reference to child marriage and the legal age of consent. Child marriage was widespread in most religions and communities. The age of consent for girls was fixed at ten years in 1860. In 1890, a thirty‑five‑year‑old man called Hari Mohan Maity caused the death of his ten‑year‑old wife Phulmoni Das (also known as Phulomonee Das) through violent sexual intercourse with her. While this would be considered rape and aggravated penetrative sexual assault of a child by prevailing legal standards, the concerned court ruled that Hari Mohan Maity had a legal right to engage in sexual relations with Phulmoni Das because she was above the age of consent at the time. The age of consent for girls was then raised to twelve., Decades later, the Child Marriage Restraint Act 1929 raised the minimum age of marriage for girls from twelve to fourteen. In 1949, the criminal law of the country stipulated that the age of consent for girls was fifteen years. The Hindu Marriage Act set the minimum age of marriage at fifteen for girls and eighteen for boys. In 1978, the Hindu Marriage Act was amended to raise the minimum age of marriage to eighteen for girls and twenty‑one for boys. The Prohibition of Child Marriage Act 2006 provided that child marriages would be voidable at the option of the contracting party who was a child at the time of the marriage and criminalised the act of performing, conducting, directing, abetting, promoting or permitting a child marriage., The Protection of Children from Sexual Offences Act 2012 was enacted about a decade ago. It is a child‑specific legislation which inter alia criminalises sexual abuse in its various forms. A child is defined as any person below the age of eighteen years. In Independent Thought v. Union of India, the Supreme Court of India was confronted with the inconsistency between the Protection of Children from Sexual Offences Act, which criminalised sexual relations with a child, and Exception 2 to Section 375 of the Indian Penal Code, which provided that sexual intercourse by a man with his wife was not rape if the wife was above fifteen years of age. As a consequence of this inconsistency, a person could have been guilty under the Protection of Children from Sexual Offences Act but not under Section 375 of the Indian Penal Code. The Supreme Court of India held that Exception 2 was violative of Articles 14, 15 and 21 of the Constitution and was an affront to constitutional morality. The Court read down Exception 2 as exempting a man from the offence of rape if his wife was above the age of eighteen. Currently, it is a punishable offence for a man to have sexual intercourse with a child, regardless of whether that child is his wife., Acts which were once considered the norm in a marriage are no longer countenanced by the law. The giving and taking of dowry, which was and continues to be prevalent in most communities, was criminalised by the enactment of the Dowry Prohibition Act 1961. Prior to its enactment, there was no penalty in law for demanding, giving, or accepting dowry. The family of the bride was often expected to pay large sums of money or present gift items of value to the groom or his family, as a condition of the marriage. The maternal families of innumerable women are harassed and violence is inflicted upon them in relation to demands for dowry. Parliament inserted Section 498A of the Indian Penal Code in 1983. Section 498A criminalises the act of a husband or his relative subjecting her to cruelty, as defined in the section. In many cases, the matrimonial families (the husband, the mother‑in‑law, the father‑in‑law, and other relatives) murdered the woman because of what they viewed as insufficient dowry or unmet demands for dowry. This led to Parliament amending the Indian Penal Code in 1986 to include Section 304B which criminalises dowry death. About two decades ago, the Protection of Women from Domestic Violence Act 2005 was enacted to protect the rights of women who were survivors or victims of domestic violence, either by their husbands or the relatives of their husbands. Prior to the enactment of the law, intimate partner violence which women are generally subject to was not criminalised., Inter‑caste and interfaith marriages were uncommon in the colonial era and established customs or usages did not govern such marriages. Then, as now, society subjected those who entered into inter‑caste and interfaith marriages to discrimination and violence. There was initially no legal framework in place which governed such marriages. The Special Marriage Act 1872 was enacted to enable the solemnisation of marriages independent of personal law. If two people belonging to different religions wished to marry, they were each required to renounce their respective religion in order to avail of its provisions. The law at the time did not supply a framework in terms of which two persons belonging to different religions could retain their association or spiritual connection to their respective religions and still marry one another. Parliament was conscious of the limiting and restrictive character of the Special Marriage Act 1872 and enacted the Special Marriage Act in 1954, which was a more permissive legislation in that any two persons could marry without having to repudiate their respective religions. By stipulating that a marriage between any two persons may be solemnised under this Act, the Special Marriage Act also set out a mechanism for inter‑caste marriages to be solemnised independent of personal law., The families or relatives of couples who entered into inter‑caste or interfaith marriages would frequently inflict violence upon them, even to the extent of brutally murdering them. Their communities would either ordain or participate in these atrocities. Such murders are colloquially referred to as honour killings and are more accurately termed caste‑based murders. It is a most unfortunate truth that this culture of violence persists to date. Couples who face this opprobrium have knocked on the doors of the Supreme Court of India inter alia seeking protection from their families and others who oppose their relationship, and the Supreme Court of India has otherwise been seized of cases arising from violence in this context. In Shakti Vahini v. Union of India, the Supreme Court of India took note of the violence against couples in inter‑caste and interfaith marriages. It directed the state machinery to take preventive as well as remedial measures to protect such couples who wished to marry or who were recently married., Section 10 of the Indian Divorce Act 1869, which is applicable to Christians, previously permitted the husband to file a petition for divorce on the ground that his wife was guilty of adultery. However, the wife was permitted to file a petition for divorce on the ground that her husband was guilty of adultery only in conjunction with certain other grounds (such as conversion to another religion or bigamy). In Mary Sonia Zachariah v. Union of India, the Kerala High Court inter alia struck down a part of Section 10 and permitted Christian women to seek divorce on the ground of adultery alone. Parliament amended the Indian Divorce Act 1869 in 2001 by substituting Section 10 with a provision that made various grounds of divorce (including adultery) available to both the husband and the wife, equally. It also introduced Section 10A, which permitted Christian marriages to be dissolved by mutual consent for the first time. In terms of Hindu customary law, certain communities permitted divorce whereas others did not. The Hindu Marriage Act extended the right of divorce to all Hindus when it was enacted in 1955. In 1976, Section 13B was introduced in the Hindu Marriage Act, permitting Hindus to dissolve their marriage by mutual consent for the first time. In Shilpa Sailesh v. Varun Srinivasan, the Supreme Court of India held that it has the authority to grant divorce when there is a complete and irretrievable breakdown of marriage notwithstanding the opposition of one of the parties to the marriage to its dissolution. Islamic customary law permitted divorce in certain situations and through certain modes. One of the modes was talaq‑e‑biddat or triple talaq by which the husband could instantly, irrevocably, and unilaterally divorce his wife. In Shayara Bano v. Union of India, the Supreme Court of India held that the practice of severing the marital bond through the mode of talaq‑e‑biddat was unconstitutional., Mahatma Jyotirao Phule, Ishwar Chandra Vidyasagar, Pandita Ramabai, Tarabai Shinde, Raja Ram Mohun Roy and countless others voiced their opposition, to varying degrees and to varying effects, to one or the other practice discussed in this segment. Their views were met with fierce opposition on the ground that the religious and cultural values of the subcontinent did not permit a departure from tradition. In some cases, the opposing groups relied on scriptures to justify their respective stances. When Dr. B. R. Ambedkar introduced the Hindu Code Bill, many opposed the provision for divorce on the ground that the Hindu religion did not envisage divorce because it was a sacrament. It is seen that there are competing understandings of the institution of marriage at every stage of its evolution. Yet, the understanding which was grounded in justice and the rights of the people has prevailed. Injustice in the law in relation to the institution of marriage (in the form of demands for dowry, dowry death, or child sexual abuse) or as incidental to the institution (as in the case of sati or widow remarriage) is slowly but surely in the process of being eradicated. While these practices were once permitted and encouraged, they are currently not only frowned upon but also criminalised., This walk through history is not an attempt by the Supreme Court of India to take on the mantle of historians. The discussion demonstrates that the institution of marriage has not remained static or stagnant. To the contrary, it is change which characterises the institution. All social institutions transmogrify with time and marriage is no exception. From sati and widow remarriage to child marriage and inter‑caste or interfaith marriages, marriage has metamorphosed. The institution as we know it today would perhaps be unrecognisable to our ancestors from two hundred years ago. Despite vehement opposition to any departure from practice, the institution of marriage has changed. It is an incontrovertible truth. Here, it is also important to take note of the fact that these changes were brought about largely by acts of Parliament or the legislatures of the states. While the passage of many laws was preceded by significant social activism, it was the legislature which ultimately responded to the call for change. Even as Parliament (and in some cases, the courts) expand the liberties of the people to conduct their lives in a manner they see fit in accordance with law, many sections of society remain opposed to these changes. Regardless of such opposition, the institution of marriage has undergone a sea change. It is therefore incorrect to characterise marriage as a static, stagnant or unchanging institution., From the discussion in this segment of the judgment, it is evident that the institution of marriage is built and rebuilt by societies, communities, and individuals. A universal conception of marriage is not present nor is the conception of marriage static over time. The only facet of marriage which is constant across religion, community, caste, and region is that the couple is in a legally binding relationship which recognises an emotional bond of togetherness, loyalty and commitment – that is recognised by the law. The law recognises the commitment that the couple has for one another by regulating the institution of marriage and conferring certain rights and privileges on them., In Shafin Jahan, a three‑Judge Bench of the Supreme Court of India held: “Our choices are respected because they are ours. Social approval for intimate personal decisions is not the basis for recognising them. Indeed, the Constitution protects personal liberty from disapproving audiences.” The consequence of the judgment of the Supreme Court of India in National Legal Services Authority and Navtej Singh Johar is that the members of the queer community are no longer second‑class citizens of our country. Their individual and group rights are on par with any other citizen of this country. Their gender identity or sexual orientation cannot be a ground on which they are discriminated against., Mr. Tushar Mehta, the learned Solicitor General, submitted during the course of his arguments that two persons from the LGBTQ community have the right and the liberty to celebrate their union and label the union with any term they see fit, including marriage. The Union of India does not, however, wish to accord legal recognition to such ceremonies and unions. If the marriages of queer people were to be recognised by law enacted by Parliament, it would be the next step in its progression., One of us (Justice D. Y. Chandrachud) in Navtej held that the members of the LGBTQIA+ community have a right to navigate public spaces without the interference of the State. The claim of the petitioners in this case, however, is on a slightly different footing. The petitioners seek the active involvement of the State in their relationships through conferring recognition. Through marriage, the State confers legal recognition to a relationship between two heterosexual persons. By doing so, it recognises that relationships in the form of marriage are not merely a lifestyle but an important constituent unit for the sustenance of social life. The State confers innumerable benefits, both tangible and intangible, to a family unit constituted by marriage. The petitioners seek that the State grant legal recognition to the relationship between non‑heterosexual persons in the form of marriage because they are otherwise excluded from the express and implied benefits of marriage. They claim that non‑heterosexual unions have not been able to attain social sanctity because their relationship is invisible in the eyes of the law., Before we discuss the State’s interest in regulating the personal relationship between two persons to understand the necessity of its interference in the private sphere, it is important to discuss the manner in which the State regulates marriages. The State: firstly, prescribes conditions with respect to who can enter into a valid marriage; secondly, regulates the marital relationship during its sustenance; and thirdly, regulates the repercussions of the breakdown of a relationship of marriage. The State prescribes various conditions for the solemnisation of a valid marriage which inter alia includes the conditions of consent, a minimum age requirement, and whether the parties are within the degrees of prohibited relationship. The law regulates the conduct of the parties to a marriage in numerous ways. For example, the law penalises the husband and his family members if they treat the wife cruelly, including demands for dowry. Similarly, the Protection of Women from Domestic Violence Act 2005 penalises persons for domestic violence in the course of a domestic relationship which has been defined to include marriage. The grounds for divorce prescribed in various marriage laws also regulate the conduct of parties because their actions during the sustenance of a marriage may be a ground for the legal dissolution of that marriage. The valid grounds for divorce include where one of the parties has a sexual relationship outside of marriage, or has deserted their spouse, or treats the spouse with cruelty. The State regulates the relationship between the parties after the divorce by prescribing the payment of maintenance. Under the Special Marriage Act, the wife can claim alimony or maintenance and under the Hindu Marriage Act, both the husband and the wife can claim maintenance. The above discussion elucidates that the State plays a crucial role in regulating marriage. Marriage has attained both social and legal significance because of the active involvement of the State at every stage of the marital relationship during entry into it, during its sustenance, and in its aftermath., Marriage was earlier a purely social institution unregulated by the State. What prompted the State to regulate personal relationships? There are two prominent reasons. The first reason was to regulate the social order. The State regulated social order by firstly regulating the sexual conduct of persons through marriage, and secondly by prescribing a legal mechanism for the devolution of property based on the legitimacy of the heir. With respect to the first reason, the State used marriage as a tool to regulate sexual behaviour. The State prescribed social rules through the vehicle of law by devising marriage as an exclusive relationship. Engaging in sexual conduct outside of marriage is a ground for divorce under personal marriage laws and the civil marriage law. It is also crucial to note that impotency and not sterility is a ground for divorce. Impotency is the inability of a man to engage in sexual intercourse. Sterility is the inability of a man or a woman to procreate. By prescribing impotency as a ground for declaring a marriage void (and not sterility), the State emphasised the centrality of sexual relations in a marriage as opposed to procreation. In this way, the State governs the conduct of society by regulating sexual conduct in a marital relationship., Another manner in which the State intended to regulate social order by regulating marriage is by placing marriage at the centre of property devolutions. Ownership and control over property was viewed as being important for the establishment of a just social order. One of the reasons for the establishment of a social contract for the creation of a State by which individuals gave up their right to live as unregulated free individuals in exchange for protection of their rights and freedom is for safeguarding of property rights. There must be rules for the devolution of property to avoid conflicts. These rules may vary in nature. Societies may establish rules for a common property system, or private property system, or a mixture of both. These legal rules have two primary components which concern how the title over the property is secured and how the title further devolves in case of intestate succession. Legal rules for the devolution of title are premised on marriage in modern societies., It has been argued that the propertied classes wanted to reduce any uncertainty about succession, which may have arisen because of a lack of clarity regarding the line of succession. It has also been argued that noble families desired to prevent their children's marriages with partners of lower social status. Irrespective of whether the State regulated marriage to further entrench the existing social order or to transform the existing social order based on constitutional values, it is clear that property also plays a prominent role in the regulation of marriage., The second reason for the State to be involved in the regulation of personal relationships was to remodel society, premised on the constitutional value of equality. A constitutional order premised on equality, dignity, and autonomy would be unworkable if personal relationships which are the building blocks of a just society are grounded on values that are antithetical to the Constitution. The Constitution declares that there shall be no discrimination on the grounds of religion, race, caste, and sex. How would it be a just society if, on the one hand, the Constitution declares that there shall be no discrimination, and on the other hand, inter‑faith and inter‑caste relationships bear the brunt of a brutal society through ostracisation and honour killings or caste‑based murders? How just would society really be if, in spite of the constitutional guarantees of equality of women in public posts and educational institutions, they suffer patriarchal attitudes in the private sphere?, The State regulates marriage to create a space of equal living where neither caste, religion, nor sex prevent any person from forming bonds for eternity nor do they contribute to the creation of an unequal relationship. The State’s regulation of marriage recognised that even though a married couple is a unit for the purposes of laws, they still retain their individual identity and are entitled to constitutional guarantees. For example, one of the parties need not necessarily be at fault for the couple to secure divorce. Our laws recognise divorce by mutual consent. They recognise that the parties to a marriage are in the best position to decide if they should continue with the marital relationship. Divorce by mutual consent is grounded on the principle of autonomy. The involvement of the State in the regulation of marriage opened up the space for inter‑caste marriages and inter‑faith marriages, and secured prominent constitutional rights., The regulation by the State and its attempts to create a more equal personal sphere also contribute towards factual equality where women are empowered to defy patriarchal notions of gender roles in daily life. The impact of the State’s involvement in creating a more just personal space by reforming the institution of marriage on the basis of constitutional ideals can be seen when a wife chooses to retain her surname after her marriage or where the partners equally contribute towards raising their child., The State recognised that a Constitution which upholds the values of freedom, liberty, and equality cannot permit the sustenance of a feudal institution undermining the rights of marginalised communities. Thus, it is important to view the involvement of the State in regulating the institution of marriage in terms of its transformative potential in ensuring equality in the personal sphere and in family life., Apart from the benefits of the State’s involvement which are recognised above (that is, in creating a social order in consonance with the principles laid down in the Constitution), there are other benefits. These benefits can be segregated into tangible and intangible benefits. The intangible benefits of marriage are guided by hidden law. Hidden law comprises of norms and conventions which organise social expectations and regulate everyday behaviour. The benefits which are conferred by a legal institution must not be measured solely in terms of the benefits which are conferred by the law. It must also include the benefits which are conferred by hidden law. One such benefit of marriage which is traceable to hidden law is the social validity and recognition which marriage as an institution confers upon relationships., It is pertinent to note that the State only regulates heterosexual marriages. The law confers numerous rights and benefits which flow from a marriage but ignores the existence of any other form of relationship. The invisibilisation of relationships which are not in the form of marriage on the one hand bestows sanctity and commitment to marriages and on the other hand strengthens the perception that any other form of relationship is fleeting and non‑committal. The Protection of Women from Domestic Violence Act has come the closest to recognising the existence of relationships in forms other than marriage. The Act defines domestic relationship as a relationship between two persons who live together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage. In Indra Sarma v. V. K. V. Sarma, the issue before the Supreme Court of India was whether live‑in relationships can be considered to be a relationship in the nature of marriage. A two‑Judge Bench of the Supreme Court of India observed that a relationship in the nature of marriage is distinct from a marriage. It was further observed that for a relationship to be considered to be in the nature of marriage, factors such as the duration of the relationship, whether the couple live in a shared household, the pooling of resources and financial arrangements such as long‑term investment plans which indicate the existence of a long‑standing relationship, and domestic arrangements such as entrusting the responsibility especially on women to run the household and do household activities, the sexual relationship, procreation, socialisation in public, and the intention and conduct of the parties must be considered., The observations of the Supreme Court of India in Indra Sarma elucidate that a relationship is in the nature of marriage only when an inference can be drawn from the surrounding circumstances that it will be a long‑lasting relationship. Thus, while there is a positive presumption that marriages are long‑lasting, there is also a negative inference that all other relationships which are not in the form of marriage are short‑lived. The observations also indicate that marriage has always been understood and continues to be understood in terms of the stereotyped traditional gender roles. The wife is entrusted with the responsibility of taking care of household chores and the husband is expected to be the breadwinner of the family. The public‑private divide is stark. Women are relegated to the private sphere where their contribution towards running the household is diminished. An inherent feature of the institution of marriage is the unequal heteronormative setting in which it operates. It is important for us to observe that the State while recognising the relationship between two heterosexual individuals in the form of marriage does not recognise or promote the gendered division of labour in the home. The State, by regulating marriage, has sought to redefine heterosexual relationships by emphasising the autonomy of both parties., The intangible benefits of marriage extend beyond the conferment of social recognition to the relationship of the couple. It also confers benefits which cannot be measured in tangible form to the children born of the marital relationship.
id_1381	6	The law confers on children who are born of wedlock with benefits in succession. In addition, the law's recognition of the concepts of legitimate and illegitimate children have social repercussions in that illegitimate children are shunned by society. These intangible benefits of marriage indicate that society regards marriage as the primary and sole unit through which familial relationships can be forged. As Marshall Chief Justice observed in Goodridge v. Department of Public Health, in a very real sense, there are three partners in a civil marriage: two willing partners and an approving State., There are numerous tangible benefits conferred by the State which flow from marriage and touch upon every aspect of life. Tangible benefits conferred by marriage can be classified into matrimonial and child‑care related benefits; property benefits; monetary benefits; evidentiary privilege; civic benefits; and miscellaneous benefits. Matrimonial and child‑care related benefits include the provisions of permanent alimony and maintenance, maintenance if a person with sufficient means refuses to maintain his wife, the right to adopt a child as a couple, and the right to avail rights related to surrogacy. Property benefits would include securing a share in case of intestate succession. Legislation such as Section 16 of the Hindu Marriage Act has conferred legitimacy on children born from void or voidable marriages with a consequential right to or in the property of the parents (and not of any other person). Monetary or financial benefits which flow from marriage include the provisions to be nominated for the payment of gratuity, to receive funeral expenditure for the deceased spouse, for the payment of medical benefits to the spouse of the insured person, and to claim provident fund as the dependent of a spouse. Section 25 of the Hindu Marriage Act 1955; Section 37 of the Special Marriage Act 1954 stipulates that the court can direct the husband to pay maintenance to his wife; Section 40 of the Parsi Marriage and Divorce Act 1936; Section 37 of the Divorce Act 1869 where the District Court is conferred with the power to secure maintenance to the wife from the husband. Section 125 of the Criminal Procedure Code and Section 57 of the Juvenile Justice (Care and Protection of Children) Act 2015 prescribe eligibility criteria for the adoption of children. The provision stipulates that if a couple wants to adopt, then the consent of both spouses is required. Clause 5(3) of the Adoption Regulations dated 23.9.2022 (G.S.R. 726(E)) notified by the Ministry of Women and Child Development prescribes that a child shall be given in adoption only if they have been in a stable two‑year marital relationship. Section 2(e) of the Assisted Reproductive Technology (Regulation) Act 2021 defines a commissioning couple as an infertile married couple who approach an assisted reproductive technology clinic or bank for services; Section 4(c)(II) of the Surrogacy (Regulation) Act 2021 stipulates that the eligibility condition for an intending couple to avail the services of surrogacy is that the intending couple must be married and between the ages of 23 to 50 years in case of the female and 26 to 55 in case of the male. The Hindu Succession Act 1956 and the Indian Succession Act 1925 govern property rights. Section 55 of the Code of Social Security 2020 provides that each employee who has completed one year of service shall nominate from his family for the payment of gratuity, and any nomination made in favour of a person who is not a member of his family shall be void. Section 32 of the Code of Social Security 2020 stipulates that the eldest surviving member of the family (including spouse) of an insured person shall receive payment towards funeral expenditure. Sections 32 and 39 of the Code of Social Security 2020 provide benefits to a deceased spouse. The Income Tax Act 1961 provides numerous tax benefits for payments made on behalf of the spouse, for example, Section 80C permits deduction of insurance premium paid for the spouse’s life insurance policy and Section 80D permits deduction of expenses towards the premium of the spouse’s health insurance., Evidentiary privilege includes the privilege accorded to communications during marriage under the Indian Evidence Act 1872. Civic benefits include the provision to apply for citizenship or to be an overseas citizen of India by virtue of the spouse’s citizenship. Miscellaneous benefits include other benefits under law which cannot be grouped under the above categories and inter alia includes the recognition of a spouse as a near relative for the purpose of the Transplantation of Human Organs and Tissues Act 1994., At this juncture, it is important to recall the submission made by the learned Solicitor General that even today, as the law exists, there is no prohibition against two queer persons holding a marriage ceremony. However, they would not be recognised as married partners by the State and non‑State entities for the purposes of the law. The non‑recognition of non‑heterosexual marriages denies the petitioners the social and material benefits which flow from marriage, which captures the true essence of marriage. Access to the institution of marriage is crucial to individual self‑definition, autonomy, and the pursuit of happiness because of these expressive and material benefits which flow from marriage., Before we embark on an analysis of whether the Constitution recognises the right to marry, it is imperative that we discuss how the courts recognise unenumerated rights or derivative rights. The Ninth Amendment to the US Constitution states that the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. Though the Indian Constitution does not contain such a provision, it is implied that the rights enumerated in Part III are not exhaustive. The fundamental rights recognised in Part III are identified in the level of abstraction—that is, equality, liberty, and expression. The Constitution does not provide a detailed enumeration of the facets of each enumerated right. The courts, while determining the scope of an enumerated right, lay down its facets and conceptions. For example, courts have held that the true essence of the right to equality is not encompassed in formal equality where all persons are treated alike irrespective of unequal socioeconomic status but in substantive equality. Similarly, the Supreme Court of India has in numerous judgments held that the right to life and liberty recognised under Article 21 would be obscure if other crucial facets of liberty are not recognised. It is in this vein that the Supreme Court of India recognised, inter alia, the right to livelihood, the right to speedy trial, and the right to education., Fundamental rights are characterised as positive rights and negative rights. In fact, some draw a distinction between fundamental rights (Part III) and the Directive Principles of State Policy (Part IV) by arguing that the former consists of negative rights and the latter of positive rights. In constitutional theory, negative rights are understood to involve freedom from governmental action whereas positive rights place a duty on the State to provide an individual or a group with benefits which they would not be able to access by themselves., Indian jurisprudence on the scope of fundamental rights can be divided into two thematical facets. In the first facet, the distinction between negative rights and positive rights faded with the harmonious reading of fundamental rights and Directive Principles of State Policy by the courts. The courts used the Directive Principles to inform the scope of fundamental rights. In Unnikrishnan v. State of Andhra Pradesh, the issue before the Supreme Court of India was whether the Constitution guarantees a fundamental right to education to its citizens. The Supreme Court of India held in the affirmative and traced the right to Article 21 and the Preamble of the Constitution. Jeevan Reddy, J. writing for the majority observed that education is of transcendental importance in the life of an individual without which the objectives set forth in the Preamble cannot be achieved. It was further emphasised that the Constitution expressly refers to education in Articles 41, 45, and 46 of the Constitution which indicates the importance conferred to it. However, the Supreme Court of India limited the scope of the right to education in view of Article 45 which states that the State shall endeavour to provide free and compulsory education for all children until they complete the age of fourteen years. Thus, the Supreme Court of India held that the Constitution guarantees a right to free education for all children until they complete the age of fourteen years., In the second facet, the courts read fundamental rights to include both negative and positive postulates independent of the Directive Principles of State policy. Y.V. Chandrachud, Chief Justice writing the opinion for the majority in Minerva Mills v. Union of India observed that fundamental rights deal with both negative and positive postulates. In Indibily Creative Private Limited v. Government of West Bengal, one of us (D.Y. Chandrachud, J. as he then was) observed that Article 19 imposes a negative restraint on the State to not interfere with the freedoms of all citizens and a duty on the State to ensure that conditions for the free and unrestrained exercise of the freedom are created. In Justice K.S. Puttaswamy (9J) (supra), a nine‑Judge Bench of the Supreme Court of India held that the Constitution guarantees the right to privacy. This Court expressly held that the right to privacy includes both negative and positive postulates. The negative postulate consists of the right to be left alone and the positive postulate places a duty on the State to adopt measures for protecting and safeguarding individual privacy., The second facet on the scope of fundamental rights is now cemented in Indian constitutional jurisprudence. Fundamental rights consist of both negative and positive postulates preventing the State from interfering with the rights of the citizens and creating conditions for the exercise of such rights respectively. This understanding of fundamental rights is unique to Indian constitutional jurisprudence. Fundamental rights have been construed in this wide manner by Indian courts because of the constitutional conception of the role of the State. Viewing fundamental rights purely as negative rights runs the risk of undermining the role of the State., Fundamental rights are not merely a restraint on the power of the State but provisions which promote and safeguard the interests of the citizens. They require the State to restrain its exercise of power and create conducive conditions for the exercise of rights. If such a positive obligation is not read into the State's power, then the rights which are guaranteed by the Constitution would become a dead letter. This is because the question of whether the State is curtailing the rights of citizens would only arise if the citizens have the capacity and capability to exercise such rights in the first place., Thus, if the Constitution guarantees a fundamental right to marry then a corresponding positive obligation is placed on the State to establish the institution of marriage if the legal regime does not provide for it. This warrants us to inquire if the institution of marriage is in itself so crucial that it must be elevated to the status of a fundamental right. As elucidated in the previous section of this judgment, marriage as an institution has attained social and legal significance because of its expressive and material benefits. The Supreme Court of India while determining if the Constitution guarantees the right to marry must account for these considerations as well., The courts identify unenumerated rights by tracing them either to specific provisions of Part III of the Constitution or to the chief values which the Constitution espouses. The premise of this exercise undertaken by courts is that the rights guaranteed in Part III of the Constitution can only be effectively secured if certain other entitlements are safeguarded. That is, the rights guaranteed expressly by the Constitution would remain parchment rights, if conditions for the effective exercise of them are not created. To put it differently, rights will only be secured if citizens possess capabilities to exercise the right. In this method of deriving rights, the court traces unenumerated rights to specific provisions of the Constitution such as liberty (Article 21) or freedom of expression (Article 19) or equality (Article 14)., In the second method used by courts to derive unenumerated rights, rights are not traced to specific fundamental rights but to the values or the identity of the Constitution. This method of deriving unenumerated rights attained prominence after the judgment of the Supreme Court of India in R.C. Cooper v. Union of India which held that fundamental rights are not water‑tight compartments and that the thread of reasonableness contemplated in Article 14 runs through Article 21 as well. The aspirational values of the Indian Constitution reflected in the preamble are to secure justice, liberty, equality, and fraternity to all its citizens. However, constitutional identity is not readily borrowed from preambular values. Constitutional identity is secured by a gradual process which is characterised by a dialogue between the institutions of governance (such as the legislature, the executive, the courts, and the statutory commissions) and the public over internal and external dissonances. There is external dissonance when there is an apparent conflict between a Constitution's aspirational ideals and the socio‑political reality. It is characterised by internal dissonance when there is a conflict between the provisions of the Constitution. The Indian jurisprudence on the equality code is an apt example of how constitutional identity has evolved through dialogue between various stakeholders to advance the conception of factual equality. The Supreme Court of India has been using both the above‑mentioned approaches to identify unenumerated rights. For example, the Supreme Court of India in Justice K.S. Puttaswamy (9J) held that the Constitution guarantees the right to privacy by using both the specific rights approach and the identity approach. The Supreme Court of India grounded the right to privacy in the concepts of liberty, freedom, dignity, and the idea of individual self‑development which runs through the provisions of the Constitution., The learned Solicitor General made the following two arguments: (i) intimate relationships, whether between homosexual or heterosexual couples, cannot be subject to State regulation because they fall in the intimate zone of privacy; (ii) the State regulates heterosexual marriages only because there is public interest in sustaining the human population through procreation., For the Supreme Court of India to determine if the State has a duty to confer recognition upon all relationships, it must firstly delineate the contours of the State's regulation of intimate relationships vis‑à‑vis privacy concerns. The plurality opinion authored by one of us (Justice D.Y. Chandrachud) in Justice K.S. Puttaswamy (9J) (supra), while discussing the scope of the right to privacy, refers to an article titled A Typology of Privacy which classifies privacy into nine categories., In addition to listing various forms of privacy, the authors have also classified the forms of privacy based on those which are necessary for the fulfilment of the freedom to be let alone and the freedom to self‑development. The intimate zone of privacy subsumes spatial privacy (which corresponds to the freedom to let alone) and decisional privacy (which corresponds to the freedom of self‑development). The formation of human relationships falls within the intimate zone because relationships are relegated to the sphere of the home or the private zone and they involve intimate choices., The intimate zone is shielded from State regulation because relationships operate in a private space and decisions taken in a private space in exercise of an individual's autonomy (such as the choice of partner, or procreation) are private activities. The Supreme Court of India in Justice K.S. Puttaswamy (9J) (supra) held that privacy is intrinsic to the realisation of constitutional values and entrenched fundamental rights. The judgment emphasised the importance of being left alone and the autonomy of individuals to take crucial decisions affecting their personhood, such as procreation and abortion., At this juncture, it must be noted that the Indian Constitution does not recognise family or partnerships as a unit for securing rights. For example, the Irish Constitution recognises the family as a natural unit of society and a moral institution possessing inalienable rights. The Constitution, by not recognising the family as a rights‑bearing unit, has rejected the school of thought where rights of individuals in a family or partnership are subsumed within the larger unit of the family. The Constitution does not promote a framework of rights where the rights of a family are given precedence over individual rights of citizens constituting that family., Relegating actions to the private zone has certain shortcomings. The disadvantage must be understood in consequentialist terms, that is, by identifying the effect of classifying certain activities as private. One of the prominent effects of classifying actions as private is that such actions are protected from regulation by the State., Depending on how relationships are organised and managed, they can be a beacon of freedom, or a prison. While there are relationships characterised by love, mutual respect, and devotion to one another, certain relationships are also characterised by the hierarchical power structure in which they operate. Identities such as caste, religion, gender and sexuality more often than not contribute towards the unequal power structure in the private sphere. To recall, we observed that the State's interest in regulating relationships in the form of marriage is to democratise the private space by ensuring that actions in the intimate space are in consonance with constitutional values. The argument of the learned Solicitor General that the State regulates relationships in the form of marriage solely because they result in procreation is erroneous. The State's interest in democratising personal relationships is not specific to the institution of marriage. The State's regulation of marriage is merely one of the many ways by which it can fulfil these State aims. However, it is open to the State to use other forms of regulation to fulfil the interests identified above. There is public interest in the State's regulation of all relationships because relationships involving two persons may be unequal by their very nature. Scholars have emphasised that the democratisation of personal relationships serves two purposes: first, it contributes towards eliminating the inequality of the power structure in a relationship thereby preventing exploitation and subjugation; and second, it contributes towards creating a more independent and self‑sufficient citizenry which would have the ability to see alternative viewpoints., The withdrawal of the State from the domestic space leaves the disadvantaged party unprotected since classifying certain actions as being private has different connotations for those with and without power. In the case of personal relationships characterised by inequality, the actions of the more powerful person gain immunity from scrutiny and a degree of legitimacy. Thus, all activities in the private space dealing with intimate choices must not readily and blindly be categorised as beyond the scope of the State's regulation. The State must assess if its interest in democratising the private space overrides the interests of privacy in a given situation., The State has identified specific areas in the private sphere where the interest in democratising that space overrides the interests of privacy. For example, the State regulates relationships which are in the nature of marriage through the Domestic Violence Act. The preamble to the Domestic Violence Act provides that the statute was enacted to protect the rights of women who are victims of violence of any kind occurring within a family. The Act regulates the conduct of persons in a domestic relationship which has been defined as a relationship between two persons who live together in a shared household where they are related by marriage, a relationship in the nature of marriage, adoption, or consanguinity. By criminalising actions of domestic violence against women, the State recognises that there is an unequal power structure which operates in heterosexual relationships. The State also recognises that the party with lesser power and autonomy may be subjected to violence and suppression and consequently seeks to democratise the space through regulation., However, in certain other circumstances, the State and the courts have recognised that there is no State interest in regulating the personal space. For example, the Supreme Court of India has recognised that Article 21 protects a woman's reproductive choices, which includes whether she wants to terminate her pregnancy. The Medical Termination of Pregnancy Act 1971 recognises the decisional autonomy of women over procreation, which is an intimate aspect of their lives. In very narrow circumstances, the State regulates intimate choices about childbirth and procreation. For example, the Pre‑Conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act 1994 regulates the intimate zone by prohibiting sex‑selection before and after conception. In this case, the State recognises that the interest in preventing female foeticide and infanticide overrides the privacy interests and decisional autonomy of individuals. The argument that the State has an interest in regulating heterosexual marriages only to sustain society through procreation is fallacious because the State does not impose a compelled choice of procreation on married heterosexual couples. Moreover, heterosexual couples need not be married to procreate nor is marriage a criterion for procreation., The petitioners submit that the Supreme Court of India has held that the Constitution guarantees the right to marry in Shafin Jahan (supra) and Shakti Vahini (supra). In Shafin Jahan (supra), Ashokan, the father of Akhila alias Hadiya moved a habeas corpus petition before the High Court of Kerala with the apprehension that his daughter was likely to be transported out of the country. During the hearing, the High Court was informed that she had married the petitioner. The High Court allowed the petition and directed that Hadiya shall be escorted from the hostel in which she was residing to the house of the father, and that the marriage between Hadiya and Shafin Jahan was void. The High Court observed that the twenty‑four‑year‑old Hadiya was capable of being exploited and that the court was concerned with her welfare in exercising parens patriae jurisdiction. On appeal, the Supreme Court of India set aside the judgment of the High Court. Chief Justice Dipak Misra, writing for the majority, observed that Hadiya was entitled to choose a partner of her choice and curtailing the expression of choice would amount to clipping a person's identity. Justice D.Y. Chandrachud, J., as he then was, authoring the concurring judgment observed that the High Court's exercise of jurisdiction to declare the marriage null and void amounted to judicial overreach. The Supreme Court of India observed that the choice of a partner, whether within or outside of marriage, lies in the exclusive domain of the individual, and that the State cannot dictate or limit the freedom to choose a partner. In this context, the Supreme Court of India observed that the right to marry a person of one's choice is integral to Article 21 of the Constitution. The absolute faith of an individual to choose a life partner is not in the least affected by matters of faith. The Constitution guarantees to each individual the right freely to practise, profess and propagate religion. Choices of faith and belief, as indeed choices in matters of marriage, lie within an area where individual autonomy is supreme. The law prescribes conditions for a valid marriage. It provides remedies when relationships run aground. Neither the State nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters. The right to marry a person of one's choice is integral to Article 21 of the Constitution. The Constitution guarantees the right to life. This right cannot be taken away except through a law which is substantively and procedurally fair, just and reasonable. Intrinsic to the liberty which the Constitution guarantees as a fundamental right is the ability of each individual to take decisions on matters central to the pursuit of happiness. Matters of belief and faith, including whether to believe, are at the core of constitutional liberty. Society has no role to play in determining our choice of partners., In Shakti Vahini (supra), proceedings under Article 32 of the Constitution were instituted seeking directions: (i) to State Governments and the Central Government to initiate steps to combat honour crimes or caste‑based or religion‑based murder and submit a national plan of action and a State plan of action to curb such crimes; (ii) to direct State Governments to constitute special cells in each district; and (iii) to launch prosecutions in each case of honour killing or caste‑based or religion‑based murder. The Supreme Court of India disposed of the writ petition by directing preventive steps, remedial measures, and punitive measures to curb honour killings. Writing for a three‑Judge Bench, Chief Justice Dipak Misra observed that the ability of an individual to make choices is an inextricable part of dignity and that when two adults choose to marry out of their own volition they have a right to do so., In Justice K.S. Puttaswamy (9J) (supra), Justice Nariman, in his concurring opinion, observed that the right to privacy extends beyond the right to be let alone to recognising the vital personal choices such as the right to abort a fetus and the right of same‑sex couples to marry. In Navtej (supra), the Supreme Court of India while decriminalising homosexuality did not hold that the Constitution recognises a right to marry. Chief Justice Dipak Misra, writing for the majority, held that an individual has a right to a union which encompasses physical, mental, sexual or emotional companionship under Article 21 of the Constitution., In Shafin Jahan (supra) and Shakti Vahini (supra), the issue before the Supreme Court of India was whether State or non‑State actors could interfere with a person's choice of whom to marry.
id_1381	7	The law prescribes certain essential conditions for a valid marriage. In both these cases, the Supreme Court of India dealt with situations where State or non-State actors prevented a couple which was otherwise entitled to marry from marrying. In the case of Shafin Jahan (supra), the restriction was sought to be imposed because the partners belonged to different religions and in Shakti Vahini (supra) the Supreme Court of India dealt with the issue of restraints placed by society on the exercise of a person's right to marry a person of a different caste and religion. In Shafin Jahan (supra) the Supreme Court of India held that religion and caste cannot be impediments in the exercise of a person's right to choose whom to marry. The Supreme Court of India also held that no State or non-State entity can interfere with their right to marry a person of their choice., Neither the majority in Justice K.S. Puttaswamy (9J) (supra) nor the majority in Navtej (supra) hold that the Constitution guarantees the right to marry. Moreover, the opinion of Justice Nariman in Justice K.S. Puttaswamy (9J) (supra) only made a passing reference to the right to marry. It did not trace the right to marry to any of the entrenched fundamental rights nor did it comment on the scope of such a right. In Justice K.S. Puttaswamy (9J) the issue before the Supreme Court of India was whether the Constitution recognises a right to privacy. Thus, that case did not address the issue of whether the Constitution recognises the right to marry. It now falls upon the Supreme Court of India for the first time to decide if the Constitution recognises such a right., There is no fundamental right to marry. The petitioners relied on the judgment of the United States Supreme Court in Obergefell (supra) in which the right to marry was recognised as a fundamental right. In Obergefell (supra) the United States Supreme Court held that the Fourteenth Amendment of the United States Constitution imposes a positive obligation on the State to license a marriage between two people of the same sex. In Michigan, Kentucky, Ohio and Tennessee marriage was defined as a union between one man and one woman. The petitioners, who were same-sex couples, claimed that their exclusion from the institution of marriage violated the Fourteenth Amendment of the United States Constitution. The petitioners filed suits in United States district courts in their home States. The district courts ruled in their favour. On appeal the United States Court of Appeals consolidated the cases and reversed the judgment of the District Court, holding that the State has no constitutional obligation to license same-sex marriages or to recognise same-sex marriages performed out of State., The issue before the United States Supreme Court was not whether the Constitution recognises the right to marry but whether the Fourteenth Amendment requires a State to license a marriage between two people of the same sex. Various decisions of the United States Supreme Court had already recognised the right to marry. Justice Kennedy (writing for the majority) observed that the right to marry consists of the following four components: the right of choice; the protection of intimate association by supporting the union of two persons; safeguards for children and families; and a cornerstone of social order because marriage is the basis for governmental rights, benefits and responsibilities., The opinion of the majority held that the components of marriage are not exclusive to heterosexual couples. Thus, the State, by not recognising a same-sex union (which is legal) and by not granting benefits which accrue from a marriage, was held to be treating same-sex couples unequally, violating the equal protection clause. Section 1 of the Fourteenth Amendment to the United States Constitution states that no State shall deprive any person of life, liberty or property without due process of law and equal protection of the laws., In Loving v. Virginia, 388 U.S. 1 (1967), the United States Supreme Court invalidated bans on inter-racial unions holding that marriage is one of the vital personal rights essential to the orderly pursuit of happiness by free men. In Turner v. Safley, 482 U.S. 78 (1987) the United States Supreme Court held that the right to marry was abridged by regulations limiting the privilege of prison inmates to marry., Earlier judgments of the United States Courts had held that marriage is a civic right because it is fundamental to existence and survival, is part of the fundamental right to privacy, and is essential to the orderly pursuit of happiness. It was also held that without the right to marry one is excluded from the full range of human experience and is denied full protection of the laws for one's avowed commitment to an intimate and lasting relationship., The jurisprudence which has emanated from the United States Courts indicates that the right to marry is recognised as a fundamental right because of the benefits (both expressive and material) attached to it., Entry 5 of the Concurrent List of the Seventh Schedule to the Constitution grants both the State legislature and Parliament the power to enact laws with respect to marriage. The provision reads as follows: \Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law.\, In pursuance of the power conferred by Articles 245 and 246 read with Entry 5 of the Concurrent List, Parliament has enacted laws creating and regulating the socio-legal institution of marriage. The State legislatures have made amendments to such laws with the assent of the President, since the subject of marriage is in the Concurrent List. The petitioners seek that the Supreme Court of India recognise the right to marry as a fundamental right. Parliament and the State legislatures have not created an institution of marriage in exercise of their powers under Entry 5 of the Concurrent List; they would be obligated to create an institution because of the positive postulate encompassed in the right to marry, an argument that cannot be accepted., As explained in the previous section, the State, through the instrument of law, characterises marriage with two constituent elements: the expressive component and the material component. Marriage may not have attained the social and legal significance it currently has if the State had not regulated it through law. Thus, while marriage is not fundamental in itself, it may have attained significance because of the benefits which are realised through regulation., The Supreme Court of India in Justice K.S. Puttaswamy (9J) (supra) while holding that privacy is a fundamental right was not guided by the content given to privacy by the State. The Supreme Court of India was of the opinion that if the right to privacy is not secured, the full purport of the rights entrenched in the Constitution could not be secured. Similarly, the Supreme Court of India in Unnikrishnan (supra) held that the right to education is a fundamental right. The right to education was derived from the provisions of the Directive Principles of State Policy and their centrality to the development of an individual. Entry 25 of the Concurrent List authorises Parliament and State legislatures to enact laws on education. The State, in pursuance of this power, has enacted numerous legislations relating to education such as laws establishing and regulating universities and colleges. However, the right to education was held to be a fundamental right, not because of any statute or law but because of its centrality to the values that the Constitution espouses. The arguments of the petitioners that the Constitution recognises a right to marry are hinged on the meaning accorded to marriage by statutes, which cannot be accepted., The Constitution does not expressly recognise a fundamental right to marry. Yet it cannot be gainsaid that many of our constitutional values, including the right to life and personal liberty, may comprehend the values which a marital relationship entails. They may at the very least entail respect for the choice of a person whether and when to enter upon marriage and the right to choose a marital partner., The Special Marriage Act (SMA) was enacted to provide a special form of marriage for couples belonging to different religions and castes. Section 4 of the SMA prescribes conditions relating to the solemnisation of special marriages. The relevant portion of the provision is extracted below: \4. Conditions relating to solemnisation of special marriages. Notwithstanding anything contained in any other law for the time being in force relating to the solemnisation of marriages, a marriage between any two persons may be solemnised under this Act, if at the time of the marriage the following conditions are fulfilled, namely: (a) neither party has a spouse living; (b) neither party (i) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (ii) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (iii) has been subject to recurrent attacks of insanity; (c) the male has completed the age of twenty-one years and the female the age of eighteen years; (d) the parties are not within the degrees of prohibited relationship: Provided that where a custom governing at least one of the parties permits a marriage between them, such marriage may be solemnised, notwithstanding that they are within the degrees of prohibited relationship.\, Section 4(a) and (b) use the gender-neutral word \party\. However, Section 4(c) stipulates that the male must have completed twenty-one years and the female must have completed eighteen years. Section 4(d) stipulates that the parties should not be within the degrees of prohibited relationship. Section 2(b) defines degrees of prohibited relationship as follows: \(b) degrees of prohibited relationship – a man and any of the persons mentioned in Part I of the First Schedule and a woman and any of the persons mentioned in Part II of the said Schedule are within the degrees of prohibited relationship.\, Part I of the First Schedule consists only of women's relationships with men, such as mother and daughter. Part II of the First Schedule consists only of men's relationships with women, such as father and son. The conditions stipulated in Section 4, when read with the definition of prohibited relationship in Section 2(b), limit the application of the SMA to heterosexual unions., Chapter IV of the enactment lays down the consequences of marriage under the SMA. Section 19 stipulates that the marriage solemnised under the SMA of any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jain religions shall be deemed to effect their severance from such family. Section 20 provides that, subject to the provisions of Section 19, any person whose marriage is solemnised under this Act shall have the same rights and shall be subject to the same disabilities in regard to the right of succession as a person to whom the Caste Disabilities Removal Act 1950 applies. The Caste Disabilities Removal Act 1950 provides that any law or usage which inflicts the forfeiture of rights or property, or which would affect the right of inheritance because of renouncing religion, having been excluded from the communion of religion, or being deprived of caste shall cease to be enforced by law. Thus, subject to Section 19 of the Act, a person's right to inheritance shall not be forfeited because they married a person of another religion or caste., Section 21 states that succession to the property of any person whose marriage is solemnised under this Act shall be regulated by the provisions of the Indian Succession Act 1925. Section 21A provides a special provision in certain cases. The provision states that Sections 19, 20 (to the extent that it creates a disability) and 21 shall not apply when a marriage is solemnised between a person who professes the Hindu, Buddhist, Sikh or Jain religion with a person who professes the Hindu, Buddhist, Sikh or Jain religion. The rules of succession under the Indian Succession Act shall not apply where two persons who solemnise their marriage under the SMA belong to the Hindu, Buddhist, Sikh or Jain religion. Section 21 essentially ruptured the cord between a Hindu, Buddhist, Sikh or Jain and their personal laws if they married under the provisions of the SMA. Section 21A was introduced in 1976 as a progressive provision. Section 21A links the SMA with the Hindu Succession Act if both parties belong to a religion to which the HSA applies. Section 21A was introduced to remedy the disability brought in by Section 21., Section 27 deals with divorce. Section 27(1A) grants the wife additional grounds of divorce. Section 31 stipulates the Supreme Court of India to which a petition for divorce must be made. Sub-Section (2) of the section is a special provision available to the wife for the presentation of a divorce petition. Section 36 stipulates that the husband may be directed to pay expenses of the proceedings and such sum based on the income of the husband when the wife has no independent income, sufficient to support herself and necessary for divorce proceedings. Section 37 stipulates that the Supreme Court of India may order the husband to pay the wife permanent alimony and maintenance., The petitioners argue that Section 4 of the SMA is unconstitutional not because it expressly excludes or bars the marriage between two persons of the same-sex but because it excludes the solemnisation of marriage between non-heterosexual persons by implication since it only governs a heterosexual union., The decision of the South African Constitutional Court in Fourie. The petitioners have relied on Fourie (supra), a case which emanated from South Africa, to argue that provisions of the SMA must be read in a gender-neutral manner. In Fourie (supra) the common law definition of marriage and Section 30(1) of the Marriage Act (Act 25 of 1961) were challenged. The common law definition of marriage in South Africa is that it is a union of one man with one woman, to the exclusion, while it lasts, of all others. The formula for marriage prescribed by Section 30(1) of the Marriage Act is extracted below: \Do you, A.B., declare that as far as you know there is no lawful impediment to your proposed marriage with C.D. here present, and that you call all here present to witness that you take C.D. as your lawful wife (or husband)? and thereupon the parties shall give each other the right hand and the marriage officer concerned shall declare the marriage solemnised in the following words: I declare that A.B. and C.D. here present have been lawfully married.\, The petitioners in Fourie (supra) argued that the reference of husband or wife in Section 30(1) excluded same-sex couples. The South African Constitutional Court allowed the petition by holding that Section 30(1) was unconstitutional because it excluded same-sex couples. The opinion of the majority authored by Justice Albie Sachs suspended the declaration of invalidity for one year to cure defects in view of Section 172(1)(b) of the South African Constitution. If the defect was not cured within the time frame stipulated, the word spouse was to be read in the place of wife (or husband). Justice Kate O'Regan, who authored the minority opinion, disagreed with the majority on the question of the remedy. The learned judge observed that the scales of justice and equity necessitate immediate relief and not a suspended declaration of invalidity., The Court observed that Section 30(1) of the South African Marriage Act was underinclusive because it excluded same-sex unions by silence and omission. Such omission was as effective in law and practice as if effected by express language. The Court held that it would be discriminatory if same-sex couples were not given the benefits (both tangible and intangible) which were available to heterosexual couples through marriage. The State justified the exclusion of same-sex couples from the institution of marriage because of the social nature of marriage and strong religious beliefs. The Court rejected this argument on the ground that the reasons used to justify the exclusion were grounded in prejudice and that it was not a valid justification for the violation of fundamental rights., On the question of relief, the Court made the following observations: a. Parliament had expressly and impliedly recognised same-sex partnerships. The Domestic Violence Act 116 of 1998 defined a domestic partnership as a relationship between a complainant and a respondent who are of the same or opposite sex and who live/lived together in a relationship in the nature of marriage. The Estate Duty Act 45 of 1955 stipulated that the spouse in relation to a deceased person includes a person who at the time of death of the deceased person was a partner of such person in a same-sex or heterosexual union; b. Section 172(1)(b) of the Constitution granted the Court the power to issue such order including suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect; c. There was extensive consultation with the public on the issue of same-sex marriage. The South African Law Reform Commission's memorandum on domestic partnership harmonised family law principles with the Bill of Rights which was preceded by extensive public consultation; d. The Court, instead of reading in, must grant the remedy of suspended declaration because reading in would be a temporary remedial measure which would be far less likely to achieve equality. Legislative action was well‑suited for this purpose., Though facially the case mounted by the petitioners before us is similar to the case mounted by the petitioners in Fourie (supra), the legal and constitutional regime in South Africa and India varies. First, it must be noticed that unlike the SMA, there was only one provision in the South African Marriage Act (that is, Section 30(1)) which made a reference to heterosexual relationships. However, various provisions of the SMA (Sections 4, 27(1A), 31, 36 and 37) confine marriage to a union between heterosexual persons. Second, various enactments in South Africa already recognised same-sex unions unlike the Indian legal landscape where no law even remotely recognises the union between a same-sex couple. Thus, the canvas of the challenge before the South African Constitutional Court in Fourie (supra) and the legal and constitutional regime in place varies widely from that in India., The decision of the United Kingdom House of Lords in Ghaidan. Learned counsel for the petitioners argued that the Supreme Court of India ought to interpret the SMA to make it constitutionally compliant. They relied on the decision of the House of Lords of the United Kingdom in Ghaidan (supra) and urged the Supreme Court of India to adopt the principle of interpretation which had been adopted in that case., In that case, the respondent was in a stable and monogamous homosexual relationship with his partner who was a tenant in the house that the couple shared. The respondent and his partner were living together when the latter died. The appellant (being the landlord) claimed possession of the house. The respondent resisted the claim on the ground that he ought to be considered a statutory tenant in terms of the United Kingdom's Rent Act 1977. This enactment provided that a surviving spouse of the original tenant shall be the statutory tenant if the surviving spouse was residing in the house in question immediately before the death of the original tenant. It also stipulated that a person who was living with the original tenant as his or her wife or husband shall be treated as the spouse of the original tenant. In essence, the Rent Act protected the tenancy rights of a heterosexual couple when the couple was in a relationship of a similar character as marriage. The surviving partner in a homosexual relationship could have become entitled to an assured tenancy which was less advantageous than a statutory tenancy., The respondent contended that the difference in the treatment of heterosexual couples and homosexual couples was based on their sexual orientation alone and lacked justification, infringing Article 14 (prohibition of discrimination) read with Article 8 (right to respect for private and family life) of the European Convention on Human Rights. He further argued that the Supreme Court of India had a duty under Section 3 of the United Kingdom's Human Rights Act 1998 to read and give effect to the Rent Act in a way which was compliant with the ECHR. In other words, he urged the Supreme Court of India to read the Rent Act such that it granted the surviving partner in a close and stable homosexual relationship the same rights as the surviving partner in a heterosexual relationship of a similar nature, the right to succeed the tenancy as a statutory tenant. The Supreme Court of India of first instance rejected the respondent's arguments., The House of Lords accepted the respondent's arguments. It noted that the rationale of the Rent Act was that the security of tenure in a house which a couple had made their home ought not to depend upon which of them dies first. It held that there was no legitimate state aim which justified the difference in treatment of heterosexual and homosexual couples, and found that the Rent Act therefore violated the rights of the respondent under the ECHR. Having so found, it relied on Section 3 of the Human Rights Act to interpret the Rent Act to mean that the survivor of a homosexual couple would have rights on par with the survivor of a heterosexual relationship for the purposes of succession as a statutory tenant., Section 3 of the Human Rights Act reads as follows: \3. Interpretation of legislation (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.\ As noticed by the House of Lords in Ghaidan (supra): a. This provision was one of the primary means by which rights under the ECHR were brought into the law of the United Kingdom; b. Section 3 permitted courts in the United Kingdom to depart from the unambiguous meaning of a statute, if required; c. It also authorised courts in the United Kingdom to depart from legislative intent in interpreting the language used in a statute, if required; d. It allowed courts to read in words to a statute which changed the meaning of that statute, to make it compliant with the ECHR as long as the new meaning was compatible with the underlying thrust of that enactment; and e. Section 3 did not authorise courts to make decisions for which they were not equipped, such as when there were many ways of making a particular provision compliant with the ECHR. The House of Lords also noted that difficult problems could arise in some cases., It is not open to the Supreme Court of India to adopt the interpretative principle laid down in Section 3 of the Human Rights Act for a simple reason: the House of Lords derived the power to depart from legislative intent and read words into a statute such that it was compliant with the ECHR from the Human Rights Act, a statute enacted by the Parliament of the United Kingdom. It did not rely on a common law principle or fashion a principle of interpretation based on common law. The House of Lords itself noted that the interpretative obligation decreed by Section 3 is of an unusual and far‑reaching character. In India there is no legislation which permits the Supreme Court of India to depart from legislative intent and read words into legislation such that it is compliant with the Constitution., As discussed in the previous segment of this judgment on the power of judicial review, courts in India must be circumspect in relying on the law in other jurisdictions, torn from the context in which those decisions have been crafted. It is not permissible for the Supreme Court of India to exercise a power which the Parliament of another country conferred on its courts, absent a similar conferment of power under the Indian Constitution. The Supreme Court of India must exercise those powers which it has by virtue of the Constitution of India or any other Indian law. In any event, as the House of Lords held, courts may not exercise this power to make decisions for which they are ill‑equipped. The Supreme Court of India is not equipped to recognise the right of queer persons to marry under the SMA for reasons discussed in subsequent segments., Institutional limitations with respect to the interpretation of the SMA. It must be noted that the Supreme Court of India, at the beginning of the hearing, restricted the breadth of the challenge to non‑personal marriage law. However, on a careful perusal of the provisions of the SMA, it is evident that Section 21A links the SMA to personal and non‑personal laws of succession. Principles of interpretation which are well accepted in India must guide the Supreme Court of India's decision. For example, when two constructions of a provision are possible, courts ought to prefer the construction which gives effect to the provision rather than the one which renders it inoperative., Dr. Abhishek Manu Singhvi, appearing for one of the petitioners, submitted that there are three plausible interpretations of Section 21A in its application to marriages between two Hindus under the provisions of the SMA: a. The Supreme Court of India may choose not to decide on the applicability of Section 21A to non‑heterosexual Hindu couples in the present litigation and leave the question of succession open for future litigation; b. The succession of Hindu non‑heterosexual couples will be governed by the Hindu Succession Act and that of other inter‑faith non‑heterosexual couples will be governed by the Indian Succession Act (similar to inter‑faith heterosexual couples or heterosexual couples of other religions). This requires a gender‑neutral reading of the HSA and the ISA. The words widow and widower in the ISA and male Hindu, female Hindu, widow and widower in the HSA can be interpreted in a gender‑neutral manner. This interpretation must only be limited to issues related to marriage. To include transgender persons, the Supreme Court of India may hold that the words male and female under Sections 8 and 15 of the HSA may be read as \persons\; or c. Since by agreement of parties, religious and personal law related issues are beyond the scope of this litigation, it follows that provisions of secular law that relate back to personal laws (like Section 21A) are excluded from consideration. Since Section 21A was introduced as an exception to the regime under Sections 19 to 21, non‑consideration of the issue would revert the law to the position before the introduction of Section 21A, which is that the ISA would apply to all marriages under the SMA., In addition to the reading‑in of the provisions of other statutes such as the ISA and HSA, the petitioners argue that the Supreme Court of India must also read into the following provisions of the SMA: a. The words \widow\ and \widower\ in Schedules II and III of the SMA must be read as \widow or widower\ and \widower or widow\; and b. Section 4(c) of the SMA may be interpreted in the following way: i. For same‑sex couples, the provision may be read as prescribing eighteen years as the minimum age for both parties in a lesbian relationship, and twenty‑one years for both parties in a gay relationship; ii. For transgender persons, the minimum age requirement would depend on whichever gender/sex they identify as. So, a trans‑man would be eligible to marry at twenty‑one years of age while a trans‑woman would be eligible to marry at eighteen years; and iii. For those who do not identify either as a man or a woman, the following approach shall be adopted to ensure the inclusion of non‑binary and intersex individuals: A. The silence of the SMA on the minimum age qualification for persons other than men and women may be read as imposing no restriction other than the restriction imposed by other laws that stipulate the age at which persons are capable of making decisions for themselves, which is eighteen years; and B. Alternatively, the Supreme Court of India may lay down guidelines as an interim measure until Parliament fills the legislative vacuum.
id_1381	8	If the Supreme Court of India finds that a provision is contrary to Part III of the Constitution, it shall declare that it is void or read it down (by deleting phrases) or read words in (by adding or substituting phrases) to save it from being declared void. If, in the present batch of petitions, the Supreme Court of India holds that Section 4 is unconstitutional because it is underinclusive to the extent that it excludes, by implication, the marriage between same‑sex couples, the court could either strike down Section 4 of the Special Marriage Act or follow the workability model submitted by the petitioners. If the Supreme Court of India follows the first approach, the purpose of a progressive legislation such as the Special Marriage Act would be lost. The Special Marriage Act was enacted to enable persons of different religions and castes to marry. If the Special Marriage Act is held void for excluding same‑sex couples, it would take India back to the pre‑independence era where two persons of different religions and castes were unable to celebrate love in the form of marriage. Such a judicial verdict would not only have the effect of taking the nation back to the era when it was clothed in social inequality and religious intolerance but would also push Article 13 of the Constitution courts to choose between eradicating one form of discrimination and prejudice at the cost of permitting another., If the Supreme Court of India takes the second approach and reads words into the provisions of the Special Marriage Act and provisions of other allied laws such as the Indian Succession Act and the Hindu Succession Act, it would in effect be entering into the realm of the legislature. The submissions of the petitioners indicate that the Supreme Court of India would be required to extensively read words into numerous provisions of the Special Marriage Act and other allied laws. The Supreme Court of India is not equipped to undertake an exercise of such wide amplitude because of its institutional limitations. The Supreme Court of India would in effect be redrafting the law(s) in the garb of reading words into the provisions. It is trite law that judicial legislation is impermissible. We are conscious that the court usually first determines if the law is unconstitutional, and then proceeds to decide on the relief. However, in this case, an exercise to determine whether the Special Marriage Act is unconstitutional because of under‑inclusivity would be futile because of the limitations of the Supreme Court of India's power to grant a remedy. Whether a change should be brought into the legislative regime of the Special Marriage Act is for Parliament to determine. Parliament has access to varied sources of information and represents in itself a diversity of viewpoints in the polity. The Supreme Court of India in the exercise of the power of judicial review must be careful not to tread into the legislative domain. It is clarified that the Supreme Court of India has not adjudicated upon the validity of any laws other than the Special Marriage Act, the Foreign Marriage Act, the Adoption Regulations, and the Child Adoption Regulation Act Circular., Some petitioners have challenged the constitutionality of the Foreign Marriage Act and have sought a declaration that it applies to any two persons who seek to get married, regardless of their gender identity and sexual orientation. The Foreign Marriage Act applies to two categories of persons: parties who seek to solemnise their marriage under the Foreign Marriage Act in a foreign country and those who seek to register their marriage under the Foreign Marriage Act when their marriage has been solemnised in a foreign country in accordance with the law of that country. In both cases, at least one of the parties to the marriage must be a citizen of India. Section 4 of the Foreign Marriage Act specifies certain conditions which must be fulfilled before the parties can avail of its provisions: Conditions relating to solemnisation of foreign marriages. A marriage between parties, one of whom at least is a citizen of India, may be solemnised under this Act by or before a Marriage Officer in a foreign country, if, at the time of the marriage, the following conditions are fulfilled, namely: (a) neither party has a spouse living, (b) neither party is an idiot or a lunatic, (c) the bridegroom has completed the age of twenty‑one years and the bride the age of eighteen years at the time of the marriage, and (d) the parties are not within the degrees of prohibited relationship: Provided that where the personal law or a custom governing at least one of the parties permits a marriage between them, such marriage may be solemnised, notwithstanding that they are within the degrees of prohibited relationship., Clauses (c) and (d) contain requirements which prevent the Supreme Court of India from interpreting the Foreign Marriage Act as applying to persons regardless of their sexual orientation. Clause (c) requires the bridegroom to be at least twenty‑one years and the bride to be at least eighteen years of age. If the Supreme Court of India were to interpret Section 4 as applying to same‑sex relationships, the question of how clause (c) would apply to such relationships would arise. Various approaches were proposed including reading the provision as requiring a minimum age of twenty‑one for all men and eighteen for all women, such that two men who sought to marry would both be required to be twenty‑one years and two women who sought to marry would both have to be eighteen years. Another approach that was proposed was to interpret the provision as requiring a common minimum age for all same‑sex couples. The Supreme Court of India is of the opinion that such an exercise would amount to judicial legislation. When there are various options open for a legislative change and policy considerations abound, it is best left to Parliament to engage in democratic decision‑making and settle upon a suitable course of action., Clause (d) requires the parties not to be within the degrees of prohibited relationship. Section 2(a) defines the phrase degrees of prohibited relationship as having the same meaning as in the Special Marriage Act. The reasons why the degrees of prohibited relationship cannot be interpreted by the Supreme Court of India to include same‑sex relationships have been discussed in the preceding paragraphs. The same reasons apply to Clause (d) of the Foreign Marriage Act., The Foreign Marriage Act recognizes the right of an Indian citizen to marry outside India or to marry a person from a foreign country. In essence, it recognizes the right of a citizen of India to choose a life partner who is not a citizen of India. It follows that citizens of India may enter into an abiding union with a person of their choice, including a person of the same sex as them, even if that person is not a citizen of India. It is accordingly clarified that the right of a citizen of India to enter into an abiding union with a foreign citizen of the same sex is preserved., The right to enter into a union. The need to love is as important a force in human society as is the will to power. Power wants to destroy or consume or drive away the other, the one who is different, whose will is different. Love wants the other to remain, always nearby, but always itself, always other., The goal of self‑development and what it means to be human. Over the years, through dialogue both inside and outside the courts, it has been established that the negative and positive postulates of fundamental freedoms and the Constitution as a whole inter alia secure conditions for self‑development at both an individual and a group level. This understanding can be traced to numerous provisions of Part III of the Constitution, the preambular values, and the jurisprudence which has emanated from courts. For example, the Supreme Court of India has held that the right to life under Article 21 secures more than the right of physical existence. It includes, inter alia, the right to a quality life which has been interpreted to include the right to live in an environment free from smoke and pollution, the right to access good roads, and a suitable accommodation which would enable individuals to grow in every aspect—mental, physical, and intellectual. Similarly, it has been established that a free exchange of ideas recognized under Article 19 is an integral aspect of the right to self‑development. The rights against exploitation and against discrimination and untouchability secure the creation of equal spaces in public and private spheres, which is essential for self‑growth. The right to quality education without discrimination also ensures that every citizen secures basic education to develop themselves. The freedom to profess and practice religion also enables individuals to evolve spiritually., This understanding of the Constitution is substantiated on a reading of Part IV of the Constitution. To illustrate, Article 38 states that the State shall strive to promote the welfare of the people, Article 42 stipulates that the State shall endeavour to secure just and humane conditions of work, and Article 47 places a duty on the State to raise the level of nutrition and the standard of living. The Constitution, through both positive and negative postulations, inter alia capacitates citizens in their quest to develop themselves. Such capacity‑building enables them to achieve their full potential in both the private and the public space, and to be happy. The Indian Constitution, unlike, say, the South African Constitution, does not expressly provide that the Constitution seeks to improve the quality of life and free the potential of each person. However, such an understanding can be gleaned from the provisions of Part III and Part IV of the Constitution. Thus, one of the purposes of the rights framework is to enable the citizenry to attain the goal of self‑development., Martha C. Nussbaum laid down a list of ten capabilities which are central requirements to live a quality life. Two of the identified capabilities are crucial for our discussion. The first is emotions which is characterized as follows: Emotions: Being able to have attachments to things and people outside ourselves; to love those who love and care for us, to grieve at their absence; in general, to love, to grieve, to experience longing, gratitude, and justified anger. Not having one's emotional development blighted by fear and anxiety. Supporting this capability means supporting forms of human association that can be shown to be crucial in their development. The second is affiliation which is characterized as follows: Affiliation: Being able to live with and toward others, to recognize and show concern for other human beings, to engage in various forms of social interaction; to be able to imagine the situation of another. Protecting this capability means protecting institutions that constitute and nourish such forms of affiliations, and also protecting the freedom of assembly and political speech., The capabilities of emotions and affiliations identified by Nussbaum for self‑development and sustaining a quality life are crucial for two important reasons. First, both capabilities focus on the human side of a person, that is, the ability and necessity of a person to emote and form relationships and associations. Second, the distinction between the capabilities of emotions and affiliation is that in the former, the emphasis is upon the agency of the individual and the freedom they have to form bonds with other people, while in the latter, the emphasis is upon granting recognition to such associations., Humans are unique in many respects. We live in complex societies, are able to think, communicate, imagine, strategize, and do more. However, that which sets us apart from other species does not by itself make us human. These qualities are necessary elements of our humanity but taken alone, they paint an incomplete picture. In addition to these qualities, our ability to feel love and affection for one another makes us human. We may not be unique in our ability to feel the emotion of love but it is certainly a fundamental feature of our humanity. We have an innate need to see and to be seen to have our identity, emotions, and needs fully acknowledged, recognized, and accepted. The ability to feel emotions such as grief, happiness, anger, and affection and the need to share them with others makes us who we are. As human beings, we seek companionship and most of us value abiding relationships with other human beings in different forms and capacities. These relationships may take many forms: the natal family, cousins and relatives, friends, romantic partnerships, mentors, or students. Of these, the natal family as well as the family created with one's life partner form the fundamental groups of society., The need and ability to be a part of a family forms a core component of our humanity. These relationships which nourish the emotional and spiritual aspects of our humanity are important in and of themselves. Further, they are as important to self‑development as the intellectual and financial nourishment we receive through education. Self‑development cannot be measured solely in terms of educational qualifications and financial capabilities. Such a description forgets what makes us human., It is insufficient if persons have the ability and freedom to form relationships unregulated by the State. For the full enjoyment of such relationships, it is necessary that the State accord recognition to such relationships. Thus, the right to enter into a union includes the right to associate with a partner of one's choice, according recognition to the association, and ensuring that there is no denial of access to basic goods and services, which is crucial to achieve the goal of self‑development. The rights under Article 19: The right to freedom of speech and expression and to form intimate associations. Article 19(1)(a) of the Constitution recognizes the right to freedom of speech and expression. Freedom postulates within its meaning both an absence of State control as well as actions by the State which create the conditions for the exercise of rights and freedoms. Article 19(1)(c) of the Constitution recognizes the freedom to form associations or unions or cooperative societies. The freedom of speech and expression is not limited to expressive words. It also includes other forms of expression such as the manifestation of complex identities of persons through the expression of their sexual identity, choice of partner, and the expression of sexual desire to a consenting party. Earlier judgments of the Supreme Court of India have held that expression of gender identity is a protected freedom under Article 19(1)(a). In National Legal Services Authority v. Union of India, the Supreme Court of India held that the expression of gender identity is a form of protected expression under Article 19(1)(a). In Navtej Singh Johar v. Union of India, the Supreme Court of India held that Section 377 of the Indian Penal Code infringes upon the freedom of expression of queer persons, protected under Article 19(1)(a)., Courts have traditionally interpreted the right to form an association guaranteed under Article 19(1)(c) to mean associations formed by workers or employees for collective bargaining to attain equitable working conditions. However, the entire gamut of the freedom protected under Article 19(1)(c) cannot be restricted to this singular conception. The ambit of the freedom under Article 19(1)(c) is much wider. The provision does not merely protect the freedom to form an association to create spaces for political speech or for espousing the cause of labour rights. While that is a very crucial component of the freedom protected under Article 19(1)(c), the provision also protects the freedom to engage in other forms of association to realise all forms of expression protected under Article 19(1)(a)., In Roberts v. United States Jaycees, the United States Supreme Court read freedom of association widely to include the freedom to form intimate associations. The factual matrix before the Court was that regular membership to the respondent corporation was restricted to men between the ages of fifteen to thirty‑five. Associate membership was offered to those to whom regular membership was not available. Complaints were filed alleging that the exclusion of women from full membership violated the Minnesota Human Rights Act, which made it discriminatory to deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of race, color, creed, religion, disability, national origin or sex. The United States Supreme Court had to decide if any interference with the organization’s membership policy would violate the respondent’s freedom of association guaranteed under the First Amendment. Justice Brennan, writing for the majority, observed that the freedom of association constitutes two facets. First, the freedom to enter into intimate human relationships secure from undue state interference (the intrinsic element); and second, the freedom to form associations to engage in activities protected by the First Amendment such as speech, assembly, and the exercise of religion (the instrumental element). The Court observed that individuals have the freedom to form intimate associations because individual liberty can be secured only when the State does not unjustifiably interfere with the formation and preservation of certain kinds of highly personal relationships. The Constitution protects such relationships because individuals draw emotional enrichment from close ties such as those created by marriage, children, and cohabitation, which contribute towards identity building and self‑development. Justice Brennan qualified the freedom by observing that only personal relationships (which are characterized by attributes such as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, the seclusion from others in critical aspects of the relationship) are protected., The right to form an intimate association has been expanded upon by the United States Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003), by which the sodomy laws were held unconstitutional. Kenneth L. Karst, who developed the idea of the freedom of intimate association, argues that courts have traditionally not permitted the State to interfere or regulate certain kinds of personal relationships, thereby elevating it to a distinct freedom. Intimate association is characterized by a sense of collectivity which exists beyond two individuals. One of the prominent ideas embraced by the freedom of intimate association is the opportunity it affords to enjoy the society of the other person who is part of the relationship and the ability to choose to form and maintain such a relationship. The opportunity to enjoy the society of one's partner may be denied either directly or indirectly. It could be denied directly when the law prohibits such an association. The operation of Section 377 of the Indian Penal Code criminalising homosexual activity is a form of direct restriction on the freedom of association., On the other hand, the State could indirectly infringe upon the freedom when it does not create sufficient space to exercise that freedom. A formal associational status or recognition of the association is necessary for the free and unrestricted exercise of the freedom to form intimate associations. Needless to say, there may be reasonable restrictions on this right. However, other than legally valid and binding restrictions, the right to intimate associations must be unrestricted. The State, by not endorsing a form of relationship, encourages certain preferences over others. In a previous segment of this judgment, we have discussed the tangible and intangible benefits of recognizing relationships in the form of marriage. While the tangible benefits of marriage are traceable to the content of law, the intangible benefits are secured merely because the State recognises the relationship through the instrument of law. Intangible benefits in the form of expressive advantages exist irrespective of the content of the law. Even if the law does not grant any special material benefits to a relationship, the relationship would still be considered legitimate in the eyes of society. The freedom to choose a partner and the freedom to enjoy their society, which are essential components of the right to enter into a union (and the freedom of intimate association), would be rendered otiose if the relationship were to be discriminated against. For the right to have real meaning, the State must recognise a bouquet of entitlements which flow from an abiding relationship of this kind. A failure to recognise such entitlements would result in systemic discrimination against queer couples. Unlike heterosexual couples who may choose to marry, queer couples are not conferred with the right to marry by statute. To remedy this, during the course of the hearing, the Solicitor General of India made a statement that a Committee chaired by the Cabinet Secretary will be constituted to set out the rights which will be available to queer couples in unions. The Committee shall set out the scope of the benefits which accrue to such couples., The right to settle in any part of India. Article 19(1)(e) of the Constitution stipulates that all citizens shall have the right to reside and settle in any part of the territory of India. In exercise of this right, citizens may reside in any village, town, or city in any state or union territory irrespective of the state in which they were born or are domiciled. Article 19(1)(e) proscribes differentiation on the basis of the native place of a person. As with other fundamental rights, it is subject to reasonable restrictions. In Maneka Gandhi v. Union of India, the Supreme Court of India observed that it was a historical fact that there were rivalries between some states in the country. It was therefore not beyond the realm of possibility that a particular state would restrain individuals domiciled in another state from residing or settling in the first state. In view of this, the Supreme Court of India held that the intention behind Article 19(1)(d) (the right to move freely throughout the territory of India) and Article 19(1)(e) was to prevent the states from imposing such restrictions. In this way, the provision was thought to emphasize the unity and oneness of India., Article 19(1)(e) uses the expressions reside and settle. The term reside can mean either a temporary residence or a permanent residence but there is a certain level of permanency attached to the word settle in India. One can reside in a particular place in the course of education or employment but to settle down in that place means to build one's life there and reside there permanently. In P. Ramanatha Aiyar's Law Lexicon (1997 edition), it is stated: The word settled has no precise or determinate meaning. In popular language, it intends going into a town or place to live and take up one's abode. A person is said to be settled where he has his domicile or home. Colloquially, people say that a person has settled down when they are well established in their careers or when they have chosen a life partner or married somebody. The term settle down has previously been used by the Supreme Court of India in this sense, for example in Pradeep Jain v. Union of India, (1984) 3 SCC 654., Citizens of India have the right to settle in any part of the territory of India in terms of Article 19(1)(e). They, like all other citizens, may exercise this right in two ways: First, they may build their lives in a place of their choosing (in accordance with law) either by themselves or with their partner. They may reside in that place permanently (subject to other reasonable restrictions including those intended to protect the rights of tribal communities). This right is uniquely significant to persecuted groups such as queer persons, inter‑caste couples, or interfaith couples who migrate from their hometowns to other places in the country, including cities. Second, they may settle down with another person by entering into a lasting relationship with them. In fact, this mode of exercising the right under Article 19(1)(e) is encompassed by the first mode because, for many people, building a life includes choosing their life partner. Hence, the right to enter into a union is also grounded in Article 19(1)(e)., Facets of the right to life and liberty under Article 21. The atypical family. One's natal family usually consists of one's immediate relatives. The people who constitute one's immediate relatives vary from society to society. For instance, many Indians grow up in a Hindu Undivided Family, which is commonly known as a joint family and which is recognised by law. The family is typically thought of as comprising a mother and a father, to which a life partner is added (usually in a heterosexual relationship). Later, children join this family, and so the cycle continues. While this conception of a family dominates our collective understanding, it is not the only valid mode by which a family can be formed. Many persons do not follow this blueprint for the creation of a family. They instead have their own, atypical blueprint. In Deepika Singh, the Supreme Court of India rightly acknowledged the existence of atypical families: The predominant understanding of the concept of a family both in law and in society is that it consists of a single, unchanging unit with a mother and a father (who remain constant over time) and their children. This assumption ignores both the many circumstances which may lead to a change in one's familial structure, and the fact that many families do not conform to this expectation to begin with. Familial relationships may take the form of domestic, unmarried partnerships or queer relationships. A household may be a single‑parent household for any number of reasons, including the death of a spouse, separation, or divorce. Similarly, the guardians and caretakers (who traditionally occupy the roles of the mother and the father) of children may change with remarriage, adoption, or fostering. These manifestations of love and of families may not be typical but they are as real as their traditional counterparts. Such atypical manifestations of the family unit are equally deserving not only of protection under law but also of the benefits available under social welfare legislation. The black letter of the law must not be relied upon to disadvantage families which are different from traditional ones. Queer relationships may constitute one's family. Persons in such relationships are fulfilling their innate and human need to be a part of a family and to create their family. This conception of a family may be atypical but its atypical nature does not detract from the fact that it is a family. Further, queer persons are often rejected by their natal families and have only their partner or their chosen community to fall back on. In addition to the different forms of kinship recognized in Deepika Singh, the guru‑chela bond of transgender persons may also be a familial bond. Unlike hijras who often have the option of joining the hijra community and forming the guru‑chela bond, transmen do not have traditions or customs which may lead to the creation of non‑biological familial bonds with other transmen as a group. Nevertheless, they form close bonds with other transmen and many consider these bonds to be familial. These atypical manifestations of the family unit equally constitute the fundamental groups of society. The Constitution accounts for plural identities and values. It protects the right of every person to be different. Atypical families, by their very nature, assert the right to be different. Difference cannot be discriminated against simply because it exists. Articles 19 and 21 protect the rights of every citizen and not some citizens. Some petitioners have suggested that the atypical family is a queer person's chosen family. Chosen families comprise people who are selected to be one's kin, with the exercise of one's agency.
id_1381	9	Some have argued that the entire spectrum of queer relationships in India may not always be based on choice, with guru‑chela relationships often assigned rather than chosen. Hence, while some queer relationships may accurately be described as the chosen family, all of them are the atypical family. Purayil (n 96) See generally, Kath Weston, Families We Choose: Lesbians, Gays, Kinship (Columbia University Press 1997) Reddy (n 81)., It is not only formal freedom which is significant but also substantive freedom or the opportunity to achieve what one sets out to achieve and the conditions which enable this. The freedom guaranteed under the Constitution is realised in substance only when the conditions for their effective exercise are created. Formal freedom is translated into substantive freedom through the formulation of schemes and policies. When citizens are prevented from exercising their rights, the courts of India create the conditions for their exercise by giving effect to the laws enacted by the legislative wing or the schemes formulated by the executive wing. In the process, courts interpret the Constitution and the rights and freedoms it recognises. This exercise lies at the core of Article 21 of the Constitution, which guarantees the right to life and personal liberty., A few paragraphs ago, the Supreme Court of India discussed what it means to be human. The question of what it means to be free or to have liberty is of equal significance. It is a question which has plagued philosophers, ethicists, and economists alike. The answer may mean different things to different people and may change depending on the circumstances in which the question is asked. Simply put, the ability to do what one wishes to do and be who one wishes to be (in accordance with law) lies at the heart of freedom., Article 21 is available to all persons including queer persons. Article 21 encompasses the rights to dignity, autonomy, and privacy. Each of these facets animates the others. It is not possible to speak of the right to enter into a union without also speaking of the right to intimacy, which emanates from these rights. These rights demand that each individual be free to determine the course of their life, as long as their actions are not barred by law. Choosing a life partner is an integral part of determining the course of one's life. Most people consider this decision to be one of the most important decisions of their lives, one which defines their very identity. Life partners live together, spend a significant amount of time with one another, merge their respective families, create a family of their own, care for each other in times of sickness, support one another and much more. Hence, the ability to choose one's partner and to build a life together goes to the root of the right to life and liberty under Article 21. Undoubtedly, many persons choose not to have a life partner but this is by choice and not by a deprivation of their agency. The law constrains the right to choose a partner in certain situations such as when they are within prohibited degrees of relationships or are in a consanguineous relationship., Principle 24 of the Yogyakarta Principles (on the application of international human rights law in relation to sexual orientation and gender identity) states that all people have the right to found a family: Everyone has the right to found a family, regardless of sexual orientation or gender identity. Families exist in diverse forms. No family may be subjected to discrimination on the basis of the sexual orientation or gender identity of any of its members. While India is not a signatory to the Yogyakarta Principles, the Supreme Court of India has recognised their relevance to the adjudication of cases concerning sexual minorities. Depriving someone of the freedom to choose their life partner robs them of their autonomy, which in turn is an affront to their dignity. Preventing members of the LGBTQ community from entering into a union also has the result of denying (in effect) the validity of their sexuality because their sexuality is the reason for such denial. This, too, would violate the right to autonomy which extends to choosing a gender identity and sexual orientation. The act of entering into an intimate relationship and the choices made in such relationships are also protected by the right to privacy. As held by the Supreme Court of India in Navtej Singh Johar (supra) and Justice K.S. Puttaswamy (Justice) (supra), the right to privacy is not merely the right to be left alone but extends to decisional privacy or privacy of choice., The right to health is also a crucial component of the right to life and liberty. The health of a person includes both their physical and their mental wellbeing. Parliament enacted the Mental Healthcare Act 2017 to regulate the provision of mental healthcare services. An assessment of the mental health of a person cannot be limited to considering whether they have a mental illness or disease but must also include an assessment of whether their mental health is thriving. The Constitution of the World Health Organization declares that health is a state of complete physical, mental and social wellbeing and not merely the absence of disease or infirmity. Mental health is therefore a state of complete mental wellbeing and not merely the absence of mental illnesses. Parliament is also cognizant of this fact as evident from the overall scheme and provisions of the Mental Healthcare Act. Though this statute is primarily concerned with mental illnesses and access to healthcare, Chapter VI recognises the value of complete mental wellbeing by providing for the promotion of and awareness about mental health. A person's mental wellbeing can only be secured if they are allowed the freedom and liberty to make choices about their lives. If their choices are restrained, their overall mental wellbeing would undoubtedly be degraded. Choices may be restrained by expressly denying them their freedom or by failing to create conditions for the exercise of such freedom., The right of queer persons to access mental healthcare is recognised by Section 18 which stipulates that persons have a right to access mental healthcare without being discriminated against on the basis of their sex, gender, or sexual orientation. This is undoubtedly a progressive step in line with constitutional ideals. The mental health of members of the LGBTQ community may suffer not only because of the discrimination they may face at the hands of their families or society in general but also because they are prevented from choosing their life partner and entering into a meaningful, long‑lasting relationship with them. The effect of the right to life under Article 21 read with Section 18 of the Mental Healthcare Act is that queer people have the right to complete mental health, without being discriminated against because of their sex, gender, or sexual orientation. A natural consequence of this is that they have the right to enter into a lasting relationship with their partner. They also have a right not to be subjected to inhumane and cruel practices or procedures., Article 25(1) of the Constitution is as follows: 'Freedom of conscience and free profession, practice and propagation of religion (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.' Article 25(1) has four components. The first component makes the right available to all persons. The second component indicates that all persons are equally entitled to the rights it codifies. The third component deals with two distinct concepts: the right to freedom of conscience and the right freely to profess, practice and propagate religion. While the freedom of conscience subsumes within its fold the right to profess, practice and propagate religion, it is not restricted to this right alone. The rights with respect to religion are one aspect of the freedom of conscience. The fourth component makes the rights codified in Article 25 subject to public order, morality, health, and the other provisions of Part III. The right under Article 25 is an individual right because conscience inheres in an individual., The right under Article 25 is also available to members of the LGBTQ community since it is available to all persons. But what does this freedom entail, beyond religious rights? Black's Law Dictionary defines conscience as: 'Conscience. The moral sense; the faculty of judging the moral qualities of actions, or of discriminating between right and wrong; particularly applied to one's perception and judgment of the moral qualities of his own conduct, but in a wider sense, denoting similar application of the standards of morality to the acts of others. The sense of right and wrong inherent in every person by virtue of his existence as a social entity.' All persons, including members of the queer community, have the right to judge the moral quality of the actions in their own lives, and having judged their moral quality, have the right to act on their judgment in a manner they see fit. This attribute is of course not absolute and is capable of being regulated by law. In the segment of this judgment on the right to life and liberty, the Supreme Court of India noticed that the meaning of liberty is at its core the ability to do what one wishes to do and be who one wishes to be, in accordance with law. All persons may arrive at a decision regarding what they want to do and who they want to be by exercising their freedom of conscience. They may apply their sense of right and wrong to their lives and live as they desire, in accordance with law. Some of the decisions the moral quality of which they will judge include the decision on who their life partner will be and the manner in which they will build their life together. Each individual is entitled to decide this for themselves, in accordance with their conscience., The right under Article 25 is subject to four exceptions: public order, morality, health, and the other provisions of Part III. The respondents have not demonstrated that public order will be in peril or that the health of the public at large or of individuals will be adversely impacted, if queer persons enter into a union with their partners. As for morality, it is settled law that Article 25 speaks of constitutional morality and not societal morality. In Indian Young Lawyers Association v. State of Kerala, a five‑Judge Bench of the Supreme Court of India (of which one of us, Justice D.Y. Chandrachud, was a part) held: 'Morality for the purposes of Articles 25 and 26 cannot have an ephemeral existence. Popular notions about what is moral and what is not are transient and fleeting. Popular notions about what is or is not moral may in fact be deeply offensive to individual dignity and human rights. Individual dignity cannot be allowed to be subordinate to the morality of the mob. Nor can the intolerance of society operate as a marauding morality to control individual self‑expression in its manifest form. The expression has been adopted in a constitutional text and it would be inappropriate to give it a content which is momentary or impermanent. Then again, the expression \morality\ cannot be equated with prevailing social conceptions or those which may be subsumed within mainstream thinking in society at a given time. The content of morality is founded on the four precepts which emerge from the Preamble. The first among them is the need to ensure justice in its social, economic and political dimensions. The second is the postulate of individual liberty in matters of thought, expression, belief, faith and worship. The third is equality of status and opportunity amongst all citizens. The fourth is the sense of fraternity amongst all citizens which assures the dignity of human life. Hence, the content of morality must be determined on the basis of the preambular precepts of justice, liberty, equality, and fraternity. None of these principles are an impediment to queer persons entering into a union. To the contrary, they bolster the proposition that queer persons have the right to enter into such a relationship. Finally, the other provisions in Part III (which may also restrict the exercise of the right under Article 25) do not act as a bar to the exercise of the right in the present case. Similar to the preambular values, they give rise to the right to enter into a union.', A union may emerge from an abiding, cohabitation relationship of two persons in which each chooses the other to impart stability and permanence to their relationship. Such a union encapsulates a sustained companionship. The freedom of all persons (including persons of the queer community) to form a union was recognised by the Supreme Court of India in Navtej Singh Johar (supra): 'There can be no doubt that an individual also has a right to a union under Article 21 of the Constitution. When we say union, we do not mean the union of marriage, though marriage is a union. As a concept, union also means companionship in every sense of the word, be it physical, mental, sexual or emotional. The LGBT community is seeking realisation of its basic right to companionship, so long as such a companionship is consensual, free from the vice of deceit, force, coercion and does not result in violation of the fundamental rights of others. Such a union has to be shielded against discrimination based on gender or sexual orientation.', In K.S. Puttaswamy (Privacy‑Justice) v. Union of India, one of us (Justice D.Y. Chandrachud) held that discrimination against an individual on the basis of sexual orientation is offensive to their dignity and self‑worth: 'Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the mainstream. Yet in a democratic constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self‑worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.', This Court recognized that equality demands that queer persons are not discriminated against. An abiding cohabitation relationship which includes within its fold a union of two individuals cannot be discriminated against on the basis of sexual orientation. Material and expressive entitlements which flow from a union must be available to couples in queer unions. Any form of discrimination has a disparate impact on queer couples who unlike heterosexual couples cannot marry under the current legal regime., As a consequence of the rights codified in Part III of the Constitution, the Supreme Court of India holds that all persons have a right to enter into an abiding union with their life partner. This right, undoubtedly, extends to persons in queer relationships. At this juncture, it is necessary to clarify the difference between relationships and unions of the kind which the Supreme Court of India speaks of, and unions and marriages. Any person may enter into a consensual romantic or sexual relationship with another person. This may last for a few months or for years. Regardless of the period for which the relationship continues, no legal consequences attach to it, except where provided by law (such as in terms of the Domestic Violence Act). However, when two persons enter into a union with a person whom they consider to be their life partner, certain legal consequences will follow. For instance, if one of them happens to die, their partner will have the right to access the body of the deceased., The right to enter into a union cannot be restricted based on sexual orientation. In Navtej Singh Johar (supra), the concurring opinion authored by Justice D.Y. Chandrachud noted that Article 15 prohibits discrimination, direct or indirect, which is founded on a stereotypical understanding of the role of sex. It was observed that the usage of the word sex in Article 15(1) encapsulates stereotypes based on gender. The judgment expanded on this understanding of the provision by holding that sexual orientation is also covered within the meaning of sex in Article 15(1) because (i) non‑heterosexual relationships question the male‑female binary and gendered roles which are attached to them; and (ii) discrimination based on sexual orientation indirectly discriminates based on gender stereotypes which is prohibited by Article 15. Thus, a law which, directly or indirectly, discriminates based on sexual orientation is constitutionally suspect. In Navtej Singh Johar (supra), Justice Indu Malhotra observed that Article 15(1) prohibits discrimination based on sexual orientation because it is analogous to the other grounds on which discrimination is prohibited. The learned Judge observed that the common thread which runs through the grounds mentioned in Article 15 is that they impact the personal autonomy of an individual., We find it necessary to supplement the observations of the Supreme Court of India in Navtej Singh Johar (supra) on the impermissibility of discrimination based on sexual orientation. The causal relationship between homophobia and gender stereotypes is not the only constitutional approach to grounding the prohibition of discrimination based on sexual orientation in Article 15. Subsuming the discrimination faced by queer persons into the sex‑gender debate runs the risk of being reductionist. Gender theory only captures one part of the complex construction of sexual deviance. Over‑emphasising gender norms as a reason for the discrimination faced by the queer community will be at the cost of reducing their identity., At this juncture, it is important to address the argument of the learned Solicitor General that Article 15 of the Constitution does not include sexual orientation because it is not an ascriptive characteristic since there is a degree of choice in identifying as a queer person. This submission is premised on the erroneous understanding that the common thread which runs through the grounds mentioned in Article 15 is that they are all ascriptive characteristics., Article 15 of the Constitution states that no citizen shall be discriminated against based on religion, race, sex, place of birth, or any of them. Ascribed status is described to be assigned to individuals without reference to their innate differences or abilities and achieved status is described as acquiring special qualities and open to individual achievement. Thus, characteristics attained at birth are termed as ascribed status and characteristics or qualities achieved after birth are termed as achieved status. Before proceeding further, a preliminary point must be made. Status is not a biological phenomenon. It is a social phenomenon. The status of a person is identified based on how a person is perceived. It depends on how the society (conditioned by social norms) sees an individual as a part of a group., The Supreme Court of India has in many judgments held that caste is an ascribed status. The argument of Dr Abhishek Manu Singhvi that Article 15 prohibits discrimination on the ground of sexual orientation because it is an ascribed characteristic, and the argument of the learned Solicitor General that sexual orientation is not an ascribed characteristic (and is thus, not protected under Article 15) fails to give effect to the full purport of the anti‑discrimination principle encompassed in Article 15. A core difference between ascribed and achieved status is that the former is considered to be irreversible (where a person is born with it) but the latter is reversible., The assumption that Article 15 only protects the status that a person is born with and not an identity they choose runs the risk of viewing persons as helpless individuals. It also misses the crucial point that a person who chooses an identity can also be discriminated against. A few of the grounds stipulated in Article 15 may be reversed by the exercise of choice. For example, persons undergo sex reassignment surgeries to alter their body to align it with their gender. When a person wishes to choose a different label for their gender, they face other forms of discrimination and stigma different from the discrimination that they faced earlier. Merely because a person by exercise of choice changes their sex, it cannot be argued that the protection provided under Article 15 is not available to them., The Court must also be conscious of the fact that a person may face discrimination both due to their chosen identity and imposed identity. For example, even after a person changes their religion, it is possible that they face discrimination due to their new religious identity and their old caste or religious identity. This is not to say that all persons choose to change the characteristics that they are born with. While a few people by exercising their choice (successfully and unsuccessfully) alter what is assumed by the society to be their ascribed status, a few others may not wish to change their trait., The discussion above clearly elucidates that the distinction between ascribed and achieved status is not as clear‑cut as it may seem. The understanding of Article 15(1) cannot be premised on the distinction between ascribed and achieved status. Such an understanding does not truly capture the essence of the anti‑discrimination principle. The anti‑discrimination principle incorporated in Article 15 identifies grounds on the basis of which a person shall not be discriminated. These grounds are markers of identity. The reason for constitutionally entrenching these five markers of identity (that is, religion, caste, race, sex, and place of birth) is that individuals (and groups) have historically and socially been discriminated against based on these markers of identities. These identities must be read in their historical and social context instead of through the narrow lens of ascription., When Article 15 is read in the broader manner indicated above, the word sex in Article 15 of the Constitution takes within its meaning sexual orientation not only because of the causal relationship between homophobia and sexism but also because sex is used as a marker of identity. The word sex cannot be read independent of the social and historical context. Thus, sex in Article 15 includes within its fold other markers of identity which are related to sex and gender such as sexual orientation. Thus, a restriction on the right to enter into a union based on sexual orientation would violate Article 15 of the Constitution., Recognising the right of queer persons to enter into a union will not lead to social chaos. The Union of India submitted that if non‑heterosexual couples are permitted to enter into a union, then the State will also have to extend the right to incestuous, polygamous, or polyandrous relationships. To answer this question, the Supreme Court of India has to deal with the issue of whether the State has the power to place restrictions on the right to enter into a union and if so, what is the extent of such restrictions., The right to enter into a union like every other fundamental right can be restricted by the State. It is now established that the courts must use the four‑prong proportionality test to assess if the infringement or restriction of a right is justified. The courts must use the integrated proportionality standard formulated in Akshay N. Patel v. Reserve Bank of India to test a violation of the right to enter into a union because the right is traceable to more than one provision of Part III. However, if the State restricts the right or has the effect of restricting the right (both directly and indirectly) based on any of the identities mentioned in Article 15, such a restriction would be unconstitutional., We do not accept the argument of the Union of India that permitting non‑heterosexual unions would lead to allowing incestuous, polyandrous, and polygamous unions for all communities (the personal laws of some religious and tribal communities currently permit polygamy or polyandry). The restriction on the ground of sexual orientation will violate Article 15 of the Constitution. On the other hand, the restriction on incestuous, polygamous or polyandrous unions would be based on the number of partners and the relationships within the prohibited degree. The Court in that case will determine if the State's interest in restricting the right based on the number of partners and prohibited relationships is proportionate to the injury caused due to the restriction of choice. In view of the discussion above, a restriction based on a marker of identity protected by Article 15 cannot be equated to a restriction based on the exercise of choice. For this reason, we find that the apprehension of the Union of India is unfounded when tested on constitutional principles., Some petitioners have sought a declaration that the right to marry a person of their choice applies to transgender persons. The Union of India seems to have a mixed response to this claim. On one hand, it asserts that marriage must only be between biological men and biological women. On the other hand, the written submissions of the learned Attorney General state that the issues relating to transgender persons arising out of the Transgender Persons (Protection of Rights) Act, 2019 stand on a different footing and can be addressed without reference to the Special Marriage Act. Before addressing the issue, it is necessary to briefly advert to the difference between sex, gender, and sexual orientation, as well as to note the development of the law in relation to transgender persons., The term sex refers to the reproductive organs and structures that people are born with. Intersex persons are those whose sex characteristics do not fit the typical notions of male and female. Sex and gender are not the same. The Yogyakarta Principles describe one's gender identity as: each person's deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms. The gender of a person may not correspond to the sex they were assigned at birth. A transgender person is one whose gender identity does not conform with their sex. Transgender people may choose to undergo hormonal therapy or surgery (commonly known as gender‑affirming surgery or sex reassignment surgery) to alter their bodies to make them conform to their gender. People may be transgendered regardless of whether they choose to or are able to undergo a surgery. As noted in preceding segments of this judgment, the term transgender does not fully capture the rich variation in gender identities in India. Historically and socio‑culturally, Indian persons with a gender‑queer identity go by different names including hijras, kothis, aravanis, jogappas, thirunambis, nupi maanbas and nupi maanbis. Persons who are known by these names may identify as male, female, or the third gender. Intersex persons are not the same as transgender persons. They have atypical reproductive characteristics. Intersex people may identify as male, female, or transgender., Sexual orientation differs from both sex and gender. The Yogyakarta Principles describe sexual orientation as: each person's capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.
id_1381	10	The sex of a person is determined by their reproductive organs and structure, their gender identity depends on their internal experience of gender, and their sexual orientation is defined by the gender of the people that they are attracted to. The present batch of petitions seeks the recognition of the right of persons to marry regardless of their gender identity or sexual orientation. While previous segments of this judgment dealt with the rights of all persons regardless of gender identity or sexual orientation, this segment deals exclusively with the rights of persons who are transgender or intersex., The judgment of the Supreme Court of India in National Legal Services Authority (NALSA) and the Transgender Persons Act. The judgment of the Supreme Court of India in NALSA (supra) recognized the right of transgender persons to be identified by the gender identity of their choice, as well as their right to full protection under the Constitution, on equal terms with any other citizen of the country. The government was enjoined to recognize what the Court termed the third gender. The Court also noticed the absence of suitable legislation dealing with the rights of the transgender community. It issued directions to the Union and State Governments to take steps to ensure that the transgender community was able to realize its rights to the fullest extent. The judgment in NALSA (supra) was affirmed by the Supreme Court of India in Justice K.S. Puttaswamy (supra) and again, in Navtej (supra). The judgement in NALSA (supra) was critiqued for generalizing the gender identities of hijras as belonging to the third gender alone. The directions at paragraphs 135.1 and 135.2 of NALSA (supra) must be read as recognizing the right of all transgender persons (including hijras and those who are socio‑culturally known by other names) to be recognized by a gender of their choice., In 2019, Parliament enacted the Transgender Persons Act to provide for the rights of transgender persons and their welfare. This statute proscribes discrimination against transgender persons, provides for a system by which their identity may be recognized, prescribes that the appropriate government shall take welfare measures, recognizes the right of residence and provides for the obligations of various parties with respect to their right to education, social security, and health. It also creates a National Council for Transgender Persons. A challenge to the constitutional validity of the Transgender Persons Act is pending before a different bench of the Supreme Court of India. We leave the challenge to the validity of the statute to be decided in that or any other appropriate proceeding., During the course of the hearings, the Solicitor General advanced the argument that the Transgender Persons Act prohibits discrimination against any member of the queer community and that consequently, the queer community in India no longer faces any stigma due to their gender identity or sexual orientation. He argued that the Transgender Persons Act is a broad‑based legislation which includes all persons of the queer community within its ambit. This argument does not hold any water. The legislation applies only to persons with a gender‑queer or transgender identity and not to persons whose sexual orientation is not heterosexual. This is evident from the definition of a transgender person as: a person whose gender does not match with the gender assigned to that person at birth and includes trans‑man or trans‑woman (whether or not such person has undergone sex reassignment surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio‑cultural identities as kinner, hijra, aravani and jogta., From the definition, it is clear that the enactment applies to persons whose gender does not match with that assigned to them at birth, which includes: (a) transgender men and women; (b) intersex persons; (c) other genderqueer persons; and (d) persons with socio‑cultural identities such as hijras. The word genderqueer in Section 2(k) does not refer to sexual orientation but to gender identity. As discussed in the preceding paragraphs, gender identity is not the same as sexual orientation. The term transgender is not commonly understood as referring to persons with a sexual orientation other than heterosexual, nor does the Transgender Persons Act use the word transgender to include persons of a different sexuality. The Union of India's argument that the Transgender Persons Act applies to all queer persons including persons who are homosexual, bisexual etc. cannot be accepted. This legislation is clearly applicable only to those people with a gender identity that does not match the one assigned at birth., It is incorrect to state that transgender persons do not face any stigma or discrimination post‑2020, when the Transgender Persons Act came into force. Enacting a statute does not have the same effect as waving a magic wand. For instance, the prohibition against discrimination has not resulted in society abstaining from discrimination overnight. The ground reality is that society continues to discriminate against transgender persons in various ways. Consistent respect for the rights of transgender persons may someday ensure that they are treated as equals, but that day is yet to arrive. Hence, the contention of the Union of India that transgender people are no longer stigmatized in view of the enactment of the Transgender Persons Act cannot be accepted. Since the legislation does not apply to homosexual persons or persons of other sexual orientations, there is no question of such persons being free from discrimination or violence as a result of its enactment., Pursuant to the decision in NALSA (supra), Parliament enacted the Transgender Persons Act which aims to give substance to the rights recognized by the Supreme Court of India in its judgment. However, no such statute was forthcoming pursuant to the decision in Navtej (supra). Although the primary issue in Navtej (supra) was whether Section 377 of the Indian Penal Code was constitutional, the ruling of the Supreme Court of India made it amply clear that sexual orientation cannot be a valid ground for discrimination or hostile treatment. The decision in Navtej (supra) was a clear indication of the fact that the LGBTQ community is entitled to equal treatment before law. Parliament is yet to enact a law to this effect. The Supreme Court of India is of the opinion that there is an urgent need for a law which inter alia prohibits discrimination on the basis of sexual orientation and gives full effect to the other civil and social rights of LGBTQ persons. In the absence of such a law, members of the LGBTQ community will be unable to exercise their rights and freedoms to the fullest extent and will have to approach the courts for their enforcement on a case‑by‑case basis. This is not a desirable outcome. As in this case, courts are not always equipped to deal with all issues which are brought before them. Even if the courts are institutionally equipped to address the grievances in the case before them, no citizen should have to institute legal proceedings for the enforcement of their rights every time they seek to exercise that right. This would be contrary to the very concept of the guarantee of rights., Transgender persons in heterosexual relationships can marry under existing law. We are in agreement with the submission of the Union of India that the issue of whether transgender persons can marry ought to be decided separately from the issues arising under the Special Marriage Act in relation to homosexual persons or those of a queer sexual orientation. Parliament has recognized the rights of the transgender community by enacting the Transgender Persons Act. This Supreme Court of India is therefore bound to apply this statute while adjudicating the issue of whether transgender persons can marry under existing law., The right against discrimination under the Transgender Persons Act. The right of transgender persons to equality under the Constitution and the right against discrimination was recognized by the Supreme Court of India in NALSA (supra). To be equal means to be able to live without discrimination. Section 3 of the Transgender Persons Act codifies the prohibition against discrimination in the following terms: 'Prohibition against discrimination. No person or establishment shall discriminate against a transgender person on any of the following grounds, namely: (a) the denial, or discontinuation of, or unfair treatment in, educational establishments and services thereof; (b) the unfair treatment in, or in relation to, employment or occupation; (c) the denial of, or termination from, employment or occupation; (d) the denial or discontinuation of, or unfair treatment in, healthcare services; (e) the denial or discontinuation of, or unfair treatment with regard to, access to, or provision or enjoyment or use of any goods, accommodation, service, facility, benefit, privilege or opportunity dedicated to the use of the general public or customarily available to the public; (f) the denial or discontinuation of, or unfair treatment with regard to, the right of movement; (g) the denial or discontinuation of, or unfair treatment with regard to, the right to reside, purchase, rent, or otherwise occupy any property; (h) the denial or discontinuation of, or unfair treatment in, the opportunity to stand for or hold public or private office; and (i) the denial of access to, removal from, or unfair treatment in, Government or private establishment in whose care or custody a transgender person may be.', As evident from clauses (a) to (i), this provision is a catch‑all provision which seeks to eliminate discrimination against the transgender community both in public as well as private spaces. It is worded in exceptionally broad terms. The prefatory portion of Section 3 states that no person or establishment shall discriminate against a transgender person. 'Establishment' is defined as any body or authority established by or under a Central Act or a State Act or an authority or body owned or controlled or aided by the Government or a local authority or a Government company and includes a Department of the Government. An establishment also means any company or body corporate or association or body of individuals, firm, cooperative or other society, association, trust, agency, or institution. Establishment therefore includes any public or private entity, authority, or body, including any body of individuals. Individuals are, of course, covered by the word person., Clauses (a) to (i) of Section 3 list the spheres in which transgender persons cannot be discriminated against. They include the spheres of education, employment, healthcare, movement, property, public or private office, care and custody. It also bars any discrimination with respect to goods, accommodation, service, facility, benefit, privilege, or opportunity which is dedicated to the use of the public or customarily available to the public., The prefatory portion of Section 3 read with Section 2(b) delineates who the prohibition against discrimination operates against. In other words, it defines the actors who are prohibited from discriminating against transgender persons. The term establishment has been defined in the broadest possible terms to include all manner of undertakings or groups of people. Clauses (a) to (i) of Section 3 set forth the content of the anti‑discrimination principle. They describe the actions which amount to discrimination as well as the sphere in which the discrimination operates. The actions which amount to discrimination vary depending upon the sphere they refer to and they include denial, discontinuation, unfair treatment, termination, and removal. The spheres, too, are broadly defined and extend to practically every aspect of life. In order to establish a violation of Section 3, an aggrieved person would have to demonstrate: (a) that the person against whom they seek a remedy is either an establishment as defined in Section 2(b) or a person; (b) that they have been discriminated against in one of the spheres listed by Section 3; and (c) that the discriminatory action corresponds to that sphere (for example, a person alleging a violation of the right to movement must prove that there has been a denial, discontinuation of, or unfair treatment of that right)., While Section 18 of the Transgender Persons Act stipulates that certain actions amount to offences which may attract a penalty between six months and two years as well as a fine, violations of Section 3 attract no such penalty. In fact, the Transgender Persons Act does not expressly provide for a remedy for the infringement of Section 3., Section 8 enjoins the appropriate Government to take steps to secure full and effective participation of transgender persons and their inclusion in society. Since clauses (a) to (i) of Section 3 are with a view to ensure the full and effective participation of transgender persons in all arenas of life, Section 8, properly understood, tasks the appropriate Government with ensuring that Section 3 is complied with by all whom it governs. Rule 10(4) of the Transgender Persons (Protection of Rights) Rules 2020 provides that the appropriate Government shall take adequate steps to prohibit discrimination in any Government or private organisation, or private and public educational institution under their purview, and ensure equitable access to social and public spaces, including burial grounds. Rule 11 of these rules requires the appropriate Government to take adequate steps to prohibit discrimination in any Government or private organisation or establishment including in the areas of education, employment, healthcare, public transportation, participation in public life, sports, leisure and recreation, and opportunity to hold public or private office. Under Section 8 read with Rule 10(4) and Rule 11, the appropriate Government has a duty not only to prevent discrimination against transgender persons (by persons and public as well as private establishments) but also to address it where it is found to take place., Section 10 of the Transgender Persons Act inter alia requires establishments to comply with the statute. This provision places a duty on establishments to comply with Section 3 and ensure that they do not discriminate against transgender persons. Section 11 requires establishments to set up a grievance redressal mechanism by designating a person as the complaint officer to deal with complaints relating to the violation of the provisions of the statute. Section 11 is one of the ways in which a person who alleges the violation of the Transgender Persons Act can seek a remedy. However, Section 11 only goes as far as to provide for a mechanism by which the establishment in question can be approached for a remedy., If a public body or actor which falls within the definition of establishment in Section 2(b) of the Transgender Persons Act infringes Section 3, it is open to the aggrieved person to invoke the extraordinary jurisdiction of the High Courts under Article 226 of the Constitution. The High Courts are empowered to issue directions, orders, or writs to any person or authority for the enforcement of the rights codified by Part III and for any other purpose. The body which satisfies the definition in Section 2(b) must be a person or authority under Article 226. The High Courts may exercise their jurisdiction against a body which is performing a public duty as well. While the jurisdiction of the Supreme Court of India under Article 32 is not as expansive as that of the High Courts under Article 226, the Supreme Court of India may rely on Section 3 to guide its interpretation of the law, to enforce the rights recognized by Part III of the Constitution., Aggrieved persons may also approach the High Court under Article 226 for the issuance of a direction, order, or writ against the appropriate Government directing it to fulfil the mandate of Section 8 of the Transgender Persons Act. As discussed in the preceding paragraphs, Section 8 obligates the appropriate Government to prevent and address discrimination inter alia by private bodies. The High Court may direct the appropriate Government to perform its duties vis‑à‑vis private bodies. This is no doubt an imperfect remedy and there is a need for the Transgender Persons Act to provide for a remedy for its enforcement, especially Section 3., Harmonious interpretation of the laws governing marriage and the Transgender Persons Act. Section 3 of the Transgender Persons Act prohibits the state from discriminating against transgender persons. Section 20 of the Transgender Persons Act indicates that the statute is in addition to, and not in derogation from any other law for the time being in force. Parliament was no doubt cognizant of the statutes governing marriage when it enacted the Transgender Persons Act and Section 3(e) in particular., The laws which govern marriage in the country specify conditions which the bride and the bridegroom must satisfy for their marriage to be recognized. This is true of personal laws as well as the Special Marriage Act. The structure of these enactments also regulates marriage between a husband and a wife. They use the words bride and bridegroom, wife and husband, male and female, or man and woman. These legislations regulate heterosexual marriages in India. Laws which are incidental to marriage such as the Domestic Violence Act, the Dowry Prohibition Act 1961 or Section 498A of the Indian Penal Code seek to address the hetero‑patriarchal nature of the relationship between a man and a woman., The gender of a person is not the same as their sexuality. A person is a transgender person by virtue of their gender identity. A transgender person may be heterosexual or homosexual or of any other sexuality. If a transgender person is in a heterosexual relationship and wishes to marry their partner (and if each of them meets the other requirements set out in the applicable law), such a marriage would be recognized by the laws governing marriage. This is because one party would be the bride or the wife in the marriage and the other party would be the bridegroom or the husband. The laws governing marriage are framed in the context of a heterosexual relationship. Since a transgender person can be in a heterosexual relationship like a cis‑male or cis‑female, a union between a transwoman and a transman, or a transwoman and a cisman, or a transman and a ciswoman can be registered under marriage laws. The transgender community consists of, inter alia, transgender men and transgender women. A transgender man has the right to marry a cisgender woman under the laws governing marriage in the country, including personal laws. Similarly, a transgender woman has the right to marry a cisgender man. A transgender man and a transgender woman can also marry. Intersex persons who identify as a man or a woman and seek to enter into a heterosexual marriage would also have a right to marry. Any other interpretation of the laws governing marriage would be contrary to Section 3 of the Transgender Persons Act and Article 15 of the Constitution., In Kanailal Sur v. Paramnidhi Sadhu Khan, this Supreme Court of India held that the first and primary rule of construction was that the intention of the legislature must be found in the words used by the legislature itself. The terms bride and bridegroom, wife and husband, male and female, and man and woman in the statutes which regulate marriage cannot be read as governing marriages between cisgender men and cisgender women alone. Nothing in these statutes indicates that their intended application is solely to cisgender men and cisgender women. The plain meaning of the gendered terms used in these statutes indicates transgender persons in heterosexual relationships fall within their fold. The contention of the Union of India that biological men and women alone fall within the ambit of these statutes cannot be accepted. No law or tool of interpretation supports the interpretation proposed by the Union of India. The provisions on the prohibited degrees of relationship in the laws governing marriage continue to apply. The judgment in NALSA (supra) also recognized the importance of the right of transgender persons to marry. Moreover, State Governments have formulated and implemented schemes which encourage and support transgender persons vis‑à‑vis marriage., In Arunkumar v. Inspector General of Registration, the first petitioner was a man and the second petitioner was a woman who happened to be transgender. They married each other at a temple in Tuticorin and sought to have their marriage registered by the state, which refused. They then approached the Madras High Court under its writ jurisdiction. The Court held that: (a) the expression bride in the Hindu Marriage Act cannot have a static and immutable meaning and that statutes must be interpreted in light of the legal system in its present form; and (b) the fundamental right of the petitioners under Article 25 was infringed. The Court directed the concerned respondent to register the marriage solemnized between the petitioners., The right of queer persons under the Mental Healthcare Act. The first segment of this judgment detailed how the families or relatives of queer persons compel them to undergo conversion therapies (to convert their sexual orientation from homosexual to heterosexual) or make them marry a person of the opposite sex to cure their homosexuality or for other reasons. Other pseudo‑medical treatments are similarly designed to cure queerness. Such practices violate the right to health of queer persons as also their right to autonomy and dignity. In terms of Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights, no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Conversion therapies and other treatments which are aimed at altering sexual orientation amount to cruel, inhuman and degrading treatment of queer persons. They have the effect of denying their full humanity. The mental well‑being suffers to no end because cruel techniques are used in these so‑called treatments. It is the duty of the state to ensure that these inhumane practices do not continue. The deleterious effects of discrimination on the mental health of queer persons was also noticed by the Supreme Court of India in Navtej (supra). Other segments of this judgment discussed instances of queer persons and couples being driven to die by suicide as a result of the discrimination and violence meted out to them. This phenomenon is undoubtedly related to the mental health of queer persons and the state is equally under an obligation to prevent suicides because of one's gender identity or sexual orientation. Section 29 of the Mental Healthcare Act stipulates that: (1) The appropriate Government shall have a duty to plan, design and implement programmes for the promotion of mental health and prevention of mental illness in the country. (2) Without prejudice to the generality of the provisions contained in sub‑section (1), the appropriate Government shall, in particular, plan, design and implement public health programmes to reduce suicides and attempted suicides in the country. The programmes for the promotion of mental health (envisaged by Section 29(1)) must include provisions for the mental health of queer persons. Programmes to reduce suicides and attempted suicides (envisaged by Section 29(2)) must include provisions which tackle queer identity and oppression arising from that identity as causes for suicidal tendencies or feelings. We direct the Union Government as well as the State Governments or governments of Union Territories to carry out the mandate of Section 29 in terms of the observations in this paragraph and to include appropriate modules or provisions which address the unique concerns of the queer community., In exercise of the rights to dignity, autonomy, privacy and health an individual (regardless of their gender identity) may choose to enter into a union with a person (who may be of the same sex as them). Once they enter into an relationship as life partners, a couple has the right and the freedom to determine the significance of that relationship as well as its consequences. A denial of this freedom would be a denial of the many facets of Article 21., The right of LGBTQ persons to freedom from coercion from their families, the agencies of the state, and other persons. The right to enter into a union would be an illusion without the conditions which permit the unrestricted exercise of that right. Various parts of this judgment have detailed the violence and discrimination meted out to members of the LGBTQ community, either because of their gender identity or because of their sexual orientation. One form of this violence is that society often attempts to prevent LGBTQ persons from being with their partner, in a short‑term relationship, a long‑term relationship, a relationship where they choose to live together or any other kind of union. This happens in different ways: the couple may be forcibly separated from one another, their families may file complaints with the police which lead to the registration of FIRs and the consequent harassment of one or both of them, or they may be married off to third parties without their consent. The families of LGBTQ persons as well as the police are the primary actors in such violence., The fundamental rights and freedoms codified by the Constitution demand that the LGBTQ community be left alone so that its members can live their lives as they see fit, in accordance with law. This Supreme Court of India has discussed these rights and freedoms in detail in this judgment. It is the duty of the state machinery (acting through any authority including the police) to protect these rights instead of participating in their violation. Unfortunately, the police often act in concert with the parents of LGBTQ persons to prevent the latter from exercising their rights. This Court finds this to be unacceptable., In Mansur Rahman v. Superintendent of Police, Coimbatore District, the petitioner was a man who had married a woman who happened to be transgender. He claimed that his parents and some persons who belonged to a political outfit were harassing and threatening him and approached the Madras High Court seeking police protection. The Court allowed the petition and directed the police to ensure that no harm befalls the petitioner and his wife., In Latha v. Commissioner of Police, the Madras High Court dismissed a writ petition for the issuance of a habeas corpus filed by the petitioner for the production of her sibling, who happened to be a transgender person. The Court found that the sibling had attained the age of majority and had voluntarily joined other transgender persons., Sushma v. Commissioner of Police concerned a lesbian couple whose families opposed their relationship. Both their families filed complaints with the police that they were missing and an FIR was registered. The police visited the couple and interrogated them. The couple then filed a writ petition before the Madras High Court seeking a direction to the police not to harass them as well as protection from any form of threat or danger to their safety and security from their families. The Court directed the parties to undergo counselling (and the judge personally underwent counselling to understand queerness). Counsel informed the Court that the FIR would be closed and the parents agreed to let their daughters live their lives as they wished to. The Court also issued directions to ensure the protection of LGBTQ couples., We affirm the approach adopted in these cases, which protects the fundamental rights of LGBTQ persons., The right of queer persons to adopt children. Challenge to the Adoption Regulations. The Juvenile Justice (Care and Protection of Children) Act was enacted to consolidate and amend the law catering to the basic needs of children. Chapter VIII (Sections 56 to 73) deals with the provisions relating to adoption. Section 2(49) of the Juvenile Justice Act defines prospective adoptive parents to mean a person or persons eligible to adopt a child according to the provisions of Section 57.
id_1381	11	Section 57 prescribes the eligibility criteria for prospective adoptive parents. (1) The prospective adoptive parents shall be physically fit, financially sound, mentally alert and highly motivated to adopt a child for providing a good upbringing to the child. (2) In case of a couple, the consent of both spouses for the adoption shall be required. (3) A single or divorced person can also adopt, subject to fulfilment of the criteria and in accordance with the provisions of adoption regulations framed by the Central Adoption Resource Authority. (4) A single male is not eligible to adopt a girl child. (5) Any other criteria that may be specified in the adoption regulations framed by the Central Adoption Resource Authority., Section 57(1) prescribes general conditions relating to the physical, mental, and financial well‑being of the prospective parents as well as their motivations. Sub‑section (2) states that the consent of both parties is required if a couple is adopting a child. Sub‑sections (3) and (4) of Section 57 state that single and divorced persons are not precluded from adopting. The only restriction is that a single male cannot adopt a girl child., The Ministry of Women and Child Development notified the Adoption Regulations framed by the Central Adoption Resource Authority in exercise of the powers conferred under Section 68(c) read with Section 2(3) of the Juvenile Justice Act. Regulation 5 of the Adoption Regulations prescribes the eligibility criteria for prospective adoptive parents. The relevant portion of the provision is extracted below for reference: 5. Eligibility criteria for prospective adoptive parents. (1) The prospective adoptive parents shall be physically, mentally, emotionally and financially capable, shall not have any life‑threatening medical condition and shall not have been convicted in a criminal act of any nature or accused in any case of child rights violation. (2) Any prospective adoptive parent, irrespective of marital status and whether or not they have a biological son or daughter, can adopt a child subject to the following: (a) the consent of both spouses for the adoption shall be required in case of a married couple; (b) a single female can adopt a child of any gender; (c) a single male shall not be eligible to adopt a girl child. (3) No child shall be given in adoption to a couple unless they have at least two years of stable marital relationship except in the cases of relative or step‑parent adoption., Clause (1) of Regulation 5 states that prospective adoptive parents must be physically, mentally, emotionally, and financially stable and must not have any life‑threatening medical condition or have been convicted in a criminal act or accused in a case concerning a violation of child rights. The general conditions in clause (1) are aimed at securing the best interest of the child, focusing on physical, emotional, and financial stability. Clause (2) stipulates that any person irrespective of marital status and irrespective of whether they already have a biological child can adopt. Clause (2)(a) provides that in case of a married couple, the consent of both spouses is required; and (b) although a single female can adopt a child of any gender, a single male shall not be eligible to adopt a girl child. Clause (3) prescribes a further restriction that a child shall be given in adoption to a couple only if they have at least two years of a stable marital relationship, except in cases of relative or step‑parent adoption., Though Regulation 5(2)(a) taken alone does not preclude unmarried couples from being prospective adoptive parents, a combined reading of Regulation 5(2)(a) and 5(3) elucidates that only married couples can be prospective adoptive parents and such couples must be in at least two years of stable marital relationship. A reading of the Adoption Regulations indicates that while a person can in their individual capacity be a prospective adoptive parent, they cannot adopt a child together with their partner if they are not married., The Adoption Regulations are framed in exercise of the power conferred under the Juvenile Justice Act. Section 57(5) of the Juvenile Justice Act grants the Central Adoption Resource Authority the power to specify any other criteria. The table below compares the criteria for prospective adoptive parents prescribed under the Juvenile Justice Act and the Adoption Regulations: The Juvenile Justice Act requires prospective adoptive parents to be physically fit, financially sound, mentally alert and highly motivated to provide a good upbringing. The Adoption Regulations add that prospective parents should not have been convicted of a criminal act and should not have a life‑threatening medical condition. Both allow couples to adopt, but the Adoption Regulations require the consent of both spouses and restrict adoption to married couples who have been in a stable marital relationship for at least two years. A single male is not eligible to adopt a girl child, whereas a single female is eligible to adopt a child of any gender., The petitioners submitted that the Adoption Regulations are ultra vires the provisions of the Juvenile Justice Act because they bar unmarried couples from adopting. It was also submitted that the distinction between married and unmarried persons for the purpose of adoption is violative of Article 14 of the Constitution., It is settled law that delegated legislation must be consistent with the parent act and must not exceed the powers granted under the parent Act. The rule‑making authority must exercise the power for the purpose for which it is granted. The provisions of the delegated legislation will be ultra vires if they are repugnant to the parent Act or exceed the authority granted by the parent Act. Section 57(5) delegates to the Central Adoption Resource Authority the power to prescribe any other criteria in addition to the criteria prescribed by the provision. However, in view of the line of cases on subordinate law‑making, this power cannot be read expansively. The Central Adoption Resource Authority's power to prescribe additional criteria is limited by the express provisions and legislative policy of the Juvenile Justice Act., The Adoption Regulations place two restrictions on a couple who wish to adopt: first, the couple must be married, and second, the couple must have been in a stable marital relationship. We will now determine if the prescription of these two additional conditions is violative of the provisions of the Juvenile Justice Act and the Constitution., Regulation 5(3) of the Adoption Regulations exceeds the scope of the Juvenile Justice Act., Section 3 of the Juvenile Justice Act prescribes the general principles to be followed in the administration of the Act, including the principle of best interest, which stipulates that all decisions regarding the child shall be based on the best interest of the child to help the child develop their full potential., The provisions of the Juvenile Justice Act promote the best interest of the child and ensure their development. The eligibility criteria prescribed in Section 57 are an extension of that principle. The legislative intent behind prescribing the conditions of physical and mental fitness is to ensure that the parents are able to prioritise the well‑being of the child. The condition requiring the consent of both spouses ensures that the child receives the attention and care of both partners. The criterion prohibiting a single male from adopting a girl child is in the State’s interest of preventing child sexual abuse. It can be gathered that the State has prescribed the criteria in Section 57 keeping in mind the welfare of the child., Section 57(2) does not stipulate that only married couples can adopt. It states that in case of a couple the consent of both spouses must be secured. This indicates that adoption by a married couple is not a statutory requirement. The usage of the phrase spouse in Section 57(2) does not exclude unmarried couples from adopting., However, Regulation 5(3) of the Adoption Regulations bars unmarried partners from being prospective adoptive parents. These Regulations only permit persons to adopt in an individual capacity and not jointly as an unmarried couple. Regulation 5(2) states that every person irrespective of whether they are married or unmarried will be able to be prospective adoptive parents. The subsequent criteria in clause (a) that the consent of both spouses is required if they are married does not exclude an unmarried couple from adopting. However, Regulation 5(3) expressly excludes unmarried couples from adopting by prescribing the condition that the couple must have been in two years of a stable marital relationship. The Juvenile Justice Act does not preclude unmarried couples from adopting. Though Section 57 grants the Central Adoption Resource Authority the power to prescribe additional criteria, the criteria must not exceed the scope of the legislative policy. Neither the general principles guiding the Juvenile Justice Act nor Section 57 preclude unmarried couples from adopting a child. The Union of India has not proved that precluding unmarried couples from adopting a child is in the child’s best interests. Thus, the Central Adoption Resource Authority has exceeded its authority by prescribing an additional condition by way of Regulation 5(3), which is contrary to the tenor of the Juvenile Justice Act and Section 57., Further, the usage of the phrase stable in Regulation 5(3) is vague. It is unclear whether the provision creates a legal fiction that all married relationships which have lasted two years automatically qualify as a stable relationship or whether there are specific characteristics in addition to those prescribed in Regulation 5(1) (physical, mental, and emotional wellbeing) which would aid in characterising a married relationship as stable. Hence, Regulation 5(3) exceeds the scope of the Juvenile Justice Act., Regulation 5(3) of the Adoption Regulations has classified couples into married and unmarried couples for the purpose of adoption. The intent of the Central Adoption Resource Authority to identify a stable household for adoption is discernible from Regulation 5(3). However, the assumption that only married couples can provide a stable household is not backed by data. While married couples may provide a stable environment, it is not true that all married couples will automatically be able to provide a stable home. Similarly, unmarried relationships cannot be characterised as fleeting relationships which are unstable by their very nature. Marriage is not necessarily the bedrock on which families and households are built., It is a settled position of law that classification per se is not discriminatory and violative of Article 14. Article 14 only forbids class legislation and not reasonable classification. A classification is reasonable when the following test is satisfied: (a) The classification must be based on an intelligible differentia which distinguishes the persons or things that are grouped, from others left out of the group; and (b) The differentia must have a rational nexus to the object sought to be achieved by the statute., The Adoption Regulations use marriage as a yardstick to classify couples. There is an intelligible differentia in using marriage as an indicator to classify couples in the sense that married couples can easily be distinguished from unmarried couples. However, the differentia does not have a rational nexus with the object sought to be achieved by the Central Adoption Resource Authority Regulations, which is to ensure that the best interest of the child is protected. Placing a child in a stable family is undoubtedly in pursuance of a child’s interest. The respondents have not placed any data on record to support their claim that only married relationships can provide stability. While separation from a married partner is regulated by law, live‑in relationships are unregulated except for limited domestic violence provisions. The stability of the household depends on various factors such as effort and involvement of the partners, creation of a safe space, work‑life balance, and absence of violence. There is no single form of a stable household. No material on record proves that only a married heterosexual couple can provide stability to the child. The Supreme Court of India has recognized the pluralistic values of the Constitution which guarantee a right to different forms of association., The Union of India is required to submit cogent material to support its claim that only married partners are able to provide a stable household. It has submitted four studies titled Child Attention‑Deficit Hyperactivity Disorder (ADHD) in same‑sex parent families in the United States: Prevalence and Comorbidities; High School graduation rates amongst children of same‑sex households; Children in planned lesbian families: Stigmatization, psychological adjustment and protective factors; and Children in three contexts: Family, Education and Social Development. The studies submitted by Ms. Aishwarya Bhati, learned Additional Solicitor General, conclude that non‑heterosexual couples cannot effectively take up the role of parents. The studies neither indicate that only married (and not unmarried) couples can be in a stable relationship nor that only married couples have the ability to effectively parent children. Thus, the Union of India has not submitted any cogent material to substantiate the claim that unmarried couples cannot be in a stable relationship. The Union of India has not been able to demonstrate that a single parent who adopts a child will provide a more stable environment for a child than an unmarried couple. For all these reasons, Regulations 5(2)(a) and 5(3) of the Adoption Regulations are violative of Article 14 of the Constitution., Further, in terms of Section 58(2) of the Juvenile Justice Act, the Specialised Adoption Agency is required to prepare a home study report of the prospective adoptive parents. It is only when the prospective adoptive parents are found eligible after the home study report that a child is referred to them for adoption. Section 58(5) provides that the progress and wellbeing of the child shall be ascertained after the adoption. The procedure for adoption provides for the assessment of a couple and their capacity and ability to care for a child. Any areas of concern relating to a couple’s capability as a parent would be discernible in the home study. This is true of both heterosexual couples as well as queer couples. The home study must consider the couple’s capability without reference to their sexual orientation., Regulation 5(3) of the Adoption Regulations violates Article 15 of the Constitution., Ms. Aishwarya Bhati referred to the judgment of the Supreme Court of India in Shabnam Hashmi v. Union of India to argue that the fundamental right to adopt is not recognised under the Constitution and thus, the exclusion of queer persons from the scheme for adoption is not violative of Part III of the Constitution. In Shabnam Hashmi, a petition was filed under Article 32 of the Constitution seeking a declaration that the Constitution guarantees the right to adopt, and in the alternative, requesting the court to lay down guidelines enabling adoption by persons irrespective of religion, caste, and creed. The Supreme Court of India disposed of the petition by observing that the adjudication of whether adoption must be elevated to the status of a fundamental right must await the dissipation of conflicting thought processes. The Court held that while the dimensions and perspectives of fundamental rights are in a process of constant evolution, elevation of the right to adopt or to be adopted to the status of a fundamental right will have to await a dissipation of the conflicting thought processes in this sphere of practice and belief prevailing in the country. The legislature, which is better equipped to comprehend the mental preparedness of the entire citizenry, has expressed its view, for the present, by the enactment of the Juvenile Justice Act 2000, and the same must receive due respect. The Court concluded that the present is not an appropriate time and stage where the right to adopt and the right to be adopted can be raised to the status of a fundamental right or be encompassed by Article 21 of the Constitution., The observations of the Supreme Court of India in Shabnam Hashmi that it is not the appropriate time to recognise a right to adopt and to be adopted does not affect the case of the petitioners. The petitioners challenge Regulation 5(3) of the Adoption Regulations on the ground that it discriminates against the queer community. The challenge is not on the ground that it violates the right to adopt nor is it the petitioners’ case that they have a fundamental right to adopt. The crux of the petitioners’ case is that Regulation 5(3) discriminates against the queer community because it disproportionately affects them., Regulation 5(3), though facially neutral, indirectly discriminates against atypical unions such as relationships between non‑heterosexual partners, which have not been recognised by the State. Queer marriages have not been recognised by the State and queer persons in atypical unions cannot yet enter into a marriage recognised by the State. Though the additional criteria prescribed by the Adoption Regulations would also affect a heterosexual person’s eligibility to adopt a child, it would disproportionately affect non‑heterosexual couples. This is because the State has not conferred legal recognition to unions between queer persons in the form of marriage. Consequently, an unmarried heterosexual couple who wishes to adopt a child has the option of marrying to meet the eligibility criteria for adoption, whereas this option is not available to queer couples. When Regulation 5(3) is understood in this light, a queer person who is in a relationship can only adopt in an individual capacity. This exclusion has the effect of reinforcing the disadvantage already faced by the queer community., The National Commission for Protection of Child Rights has submitted that excluding queer persons from adopting children is backed by cogent reasons. Ms. Aishwarya Bhati submitted four studies to support the claim that permitting non‑heterosexual couples to adopt is not in the best interest of the child. The paper titled Child Attention‑Deficit Hyperactivity Disorder (ADHD) in same‑sex parent families in the United States: Prevalence and Comorbidities examined a sample of 195,240 children including 512 children with same‑sex parents and concluded that children with same‑sex parents in the United States were twice as likely to suffer from ADHD than children with opposite‑sex parents. The paper titled High School graduation rates among children of same‑sex households used the 2006 Canada census to study high school graduation probabilities of children of parents belonging to the queer community and concluded that children living with parents belonging to the queer community perform more poorly in school compared to children living with married heterosexual parents. The paper titled Children in planned lesbian families: Stigmatization, psychological adjustment and protective factors conducted a study to assess the extent to which children between eight and twelve years in planned lesbian families in the Netherlands experience stigmatization. The study concluded that higher levels of stigmatization were associated with such children; boys were found to be more hyperactive and girls suffered from lower self‑esteem. The paper titled Children in three contexts: Family, education, and social development collected a sample of 174 primary school children living with married heterosexual couples, cohabiting heterosexual couples, and homosexual couples to explore the relationship between family environment and the behaviour of primary school children. The study concluded that the children of married couples are more likely to do well at school, in academic and social terms, than children of cohabiting heterosexual and homosexual couples, although the author cautioned that there may be additional factors such as biases held by teachers based on cultural beliefs., On the other hand, Dr. Menaka Guruswamy appearing for the intervenor, Delhi Commission for Protection of Child Rights, argued that there is no evidence or empirical data to show that non‑heterosexual couples are unfit to be parents or that the psychosocial development of children brought up by same‑sex couples will be compromised. The learned counsel relied on the paper titled Lesbian and Gay Parenting by the American Psychological Association, which concluded that the home environment provided by non‑heterosexual couples is not different from that provided by heterosexual parents. In another study titled Same‑sex parenting in Brazil and Portugal: An integrative review, the authors found that the adoption of children by one of the individuals in a non‑heterosexual partnership because of the delay in the recognition of same‑sex marriage became a weakness to such families on issues of health, education, and other responsibilities. In another paper titled Academic achievement of children in same and different sex parented families: A population‑level analysis of linked administrative data from the Netherlands, it was concluded that children raised by same‑sex couples performed at least as well as children of heterosexual parents in socio‑political environments characterised by high levels of legislative or public support, and that children living in same‑sex parented families experience no educational disadvantage relative to children living in heterosexual parented families. The learned counsel also relied on a study based on data from the Netherlands where same‑sex marriages were formalised in 2011. The study found that the academic results of children indicated that children raised by non‑heterosexual parents outperformed children raised by heterosexual parents by 0.139 standard deviations, and that they are 4.8 percentage points more likely to graduate. The studies submitted by both sides support their respective arguments. The studies submitted by Ms. Bhati support the argument that even if Regulation 5(3) discriminates against the queer community, it is justified because the interest of the child would suffer if they are parented by queer partners. The studies submitted by Dr. Menaka Guruswamy support the argument that the interest of the child parented by persons belonging to the queer community does not suffer, and if it does it is not because persons with queer identity are bad parents but because the State, by not recognising queer relationships, treats them as second‑class citizens., The burden which is required to be discharged by the State for an Article 14 violation and an Article 15 violation varies. While Article 14 prohibits unreasonable classification, Article 15 prohibits discrimination based on identity. The interpretation of Article 15 has evolved over the years to incorporate a more substantial effects‑based approach towards the anti‑discrimination principle. The test is whether the law discriminates against persons in effect, based on the identities covered in Article 15. While the Court is undertaking an exercise to determine if Article 14 is violated, the State is required to submit cogent evidence to support its claim that the classification holds a nexus with the object sought to be achieved. On the other hand, there is no justification for discrimination based on identities which are protected under Article 15. State interests, even if established, cannot be used to justify discrimination once the Court holds that the provision in effect discriminates based on identity. Of course, while the Court is assessing if the provision under challenge discriminates in effect based on identity, it must also evaluate whether the provision is a protective provision meant to achieve the guarantee of substantive equality., For example, it cannot be argued that the Transgender Persons Act is violative of Article 15 because it provides special provisions to safeguard the interest of the transgender community in exclusion of cis‑gender persons. A classification based on the identities protected by Article 15 does not automatically lead to discrimination. The Supreme Court of India in State of Kerala v. N. M. Thomas held that protective provisions (such as for reservation) were not an exception to the anti‑discrimination law but are in furtherance of the principle of equality, of which anti‑discrimination is a facet.
id_1381	12	The Supreme Court of India examines if the law is discriminatory not based on whether there is a classification based on the identity but whether there is discrimination based on the identity. While doing so it determines if it is a protective provision. However, once it is established that the law discriminates based on protected identities, it cannot be justified based on state interest. Thus, once it is proved that the law discriminates based on sexual orientation as in this case because it disproportionately affects queer persons, no amount of evidence or material submitted by the State that such discrimination is based on state interest can be used as a justification., We are of the opinion that if the children of persons from the queer community suffer it is because of the lack of recognition at a legal and social plane to same‑sex unions. In fact, one of the studies submitted by Ms Aishwarya Bhati highlights this aspect. The stigmatization, if any, faced by the children parented by persons of the queer community is because of the inherent biases that society holds against the queer community, and in this context, biases about their fitness to be parents. Thus, it is in the interest of children that the State endeavours to take steps to sensitize the society about queer relationships., In fact, the Indian Psychiatric Society, which consists of 7,000 mental health professionals in India, released a statement stating that children brought up by non‑heterosexual parents may face stigmatization and that it is important that civil society is adequately sensitized. The Indian Psychiatric Society is very cognizant that a child adopted into a same‑gendered family may face challenges, stigma and/or discrimination along the way. It is imperative that, once legalized, such parents of the LGBTQA spectrum bring up the children in a gender‑neutral, unbiased environment. It is also of utmost importance that the family, community, school and society in general are sensitized to protect and promote the development of such a child and prevent stigma and discrimination at any cost., The law cannot make an assumption about good and bad parenting based on the sexuality of individuals. Such an assumption perpetuates a stereotype based on sexuality that only heterosexuals are good parents and all other parents are bad parents, which is prohibited by Article 15 of the Constitution. This assumption is not different from the assumption that individuals of a certain class, caste or religion are better parents. In view of the above observations, the Adoption Regulation is violative of Article 15 for discriminating against the queer community., In view of the observations above, Regulation 5(3) is ultra vires the parent Act for exceeding the scope of delegation and for violating Articles 14 and 15 of the Constitution. It is settled that courts have the power to read down a provision to save it from being declared ultra vires. Regulation 5(3) is read down to exclude the word “marital”. It is clarified that the reference to a couple in Regulation 5 includes both married and unmarried couples including queer couples. In bringing the regulations in conformity with this judgment, the Central Adoption Resource Authority (CARA) is at liberty to ensure that the conditions it prescribes for a valid adoption subserve the best interest and welfare of the child. The welfare of the child is of paramount importance; hence, the authorities would be at liberty to ensure that the familial circumstances provide a safe, stable and conducive environment to protect the material well‑being and emotional sustenance of the child. Moreover, CARA may insist on conditions which would ensure that the interest of the child would be protected even if the relationship of the adoptive parents were to come to an end in the future. Those indicators must not discriminate against any couple based on sexual orientation. The criteria prescribed must be in tune with constitutional values. The principle in Regulation 5(2)(a) that the consent of spouses in a marriage must be obtained if they wish to adopt a child together is equally applicable to unmarried or queer couples who seek to jointly adopt a child., The forms in Schedules II (child study report), III (medical examination report and classification of special needs of a child), VI (online registration form) and VII (home study report) use the phrases “male applicant” and “female applicant”. Both married and unmarried couples can adopt under Regulation 5 of the Adoption Regulations. After the judgments of this Court in Gita Hariharan v. Reserve Bank of India, State Bank of Travancore v. Mohammed Khan, Indra Das v. State of Assam, Navtej Singh Johar v. Union of India and National Legal Services Authority v. Union of India recognising non‑binary identity and their freedom to choose a partner irrespective of sexual identity, reference to a couple cannot be restricted to heterosexual relationships. It will include all forms of queer relationships. The phrases “male applicant” and “female applicant” (in case of applicant couples) in Schedules II, III, VI and VII limit reference to only heterosexual couples and have the effect of precluding persons in queer relationships from adopting, violating the anti‑discrimination principle in Article 15(1). Therefore, the phrases are substituted with “prospective adoptive parent 1” and “prospective adoptive parent 2” (in case of applicant couples)., In 2022, CARA issued an Office Memorandum stipulating that a single prospective adoptive parent in a live‑in relationship will be ineligible to adopt a child. The Office Memorandum further provides that this decision is taken in line with Regulation 5(3) of the Adoption Regulations which stipulates that a child can only be placed with a stable family and that a single applicant in a live‑in relationship cannot be considered to be part of a stable family. It states that some single prospective adoptive parents (PAPs) registered with CARA for the adoption process are in relationship with their live‑in partner and that the cases of single PAPs engaged in live‑in relationships have been discussed in the Steering Committee of CARA during its 31st Meeting held on 18 April 2022. The Committee decided to follow the earlier decision of the 14th Steering Committee Meeting held on 10 May 2018 that such cases will not be considered eligible to adopt a child and their registration will not be considered for approval. The decision was taken in line with Regulation 5(3) of the Adoption Regulations 2017, emphasizing that the authority would like the children to be placed only with a stable family and that a single applicant in a live‑in relationship cannot be considered a stable family., CARA, in its 31st meeting held on 18 April 2022, resolved that an application received by a prospective adoptive parent who is in a live‑in relationship may not be considered on the basis of Regulation 5(3) of the Adoption Regulations. The resolution notes that the Steering Committee had not approved adoption to prospective adoptive parents staying in live‑in relationships. However, the NOC section received three cases of children reserved from the Special Need portal and on examination of the home study report it was observed that the parents were in a live‑in relationship. The NOC committee had not approved inter‑country cases of the children on the basis of Regulation 5(3) which states that no child shall be given in adoption to a couple unless they have at least two years of stable marital relationship. Since the matter involves special‑needs children, the issue may be discussed in the Steering Committee. It was decided to apply the earlier decision of the Steering Committee and the same rule should be applicable as that of the domestic PAPs. Any application received from live‑in PAPs may not be considered on the basis of Regulation 5(3) of the Adoption Regulations., The CARA Circular prescribes a condition in addition to the conditions prescribed in the Adoption Regulations. While the Adoption Regulations exclude unmarried couples from jointly adopting a child, the CARA Circular restricts the ability of a person who is in a live‑in relationship to adopt in their individual capacity. The CARA Circular stipulates that the decision is in pursuance of Regulation 5(3) of the Adoption Regulations which requires couples to be in a stable relationship., Regulation 5(1) of the Adoption Regulations prescribes a general criteria (in the form of a guiding principle) for prospective adoptive parents which is that they must be physically, mentally and emotionally fit, must not be convicted of a criminal act, and must not have a life‑threatening disease. These criteria are equally applicable to couples and persons who wish to adopt in their individual capacity. All the other subsequent provisions in Regulation 5 are specific to couples (the requirement of a stable relationship and the consent of both parties) and individuals (that a male cannot adopt a girl child). Hence, the additional criterion prescribed by the CARA Circular for a person to adopt in an individual capacity is neither traceable to the principles in Regulations 5(1) and 5(2)(c) nor to any provision of the Juvenile Justice Act. The CARA Circular has exceeded the scope of the Adoption Guidelines and the Juvenile Justice Act., According to the Adoption Regulations, unmarried couples cannot jointly adopt a child. Though the additional criteria prescribed by the CARA Circular would also affect a heterosexual person’s eligibility to adopt a child, it would disproportionately affect non‑heterosexual couples since the State has not conferred legal recognition in the form of marriage to the union between non‑heterosexual persons. When the CARA Circular is read in light of this legal position, a person of the queer community would be forced to choose between their wish to be an adoptive parent and their desire to enter into a partnership with a person they love. This exclusion has the effect of reinforcing the disadvantage already faced by the queer community. For these reasons, the CARA Circular is violative of Article 15 of the Constitution., In the opinion authored by Justice Ravindra Bhat, my learned brother states that unenumerated rights are recognised by courts in response to State action that threatens the freedom or right directly or indirectly. With due respect, such a narrow understanding of fundamental rights turns back the clock on the rich jurisprudence that the Indian courts have developed on Part III of the Constitution. This Court has held in numerous cases that the rights of persons are infringed not merely by overt actions but also by inaction on the part of the State. Some of these precedents are referred to below., In National Legal Services Authority (supra), this Court held that the State by rendering the transgender community invisible and failing to recognise their gender identity deprived them of social and cultural rights. This Court recognised the duty of the State to enable the exercise of rights by the transgender community and issued a slew of directions to enforce this duty. Justice A K Sikri, in his opinion, declared that hijras, eunuchs and persons of third gender be treated as third gender for the purpose of safeguarding their rights under Part III of the Constitution and that transgender persons’ right to decide their self‑identified gender is upheld. He directed the Centre and State Governments to grant legal recognition of gender identity, to treat them as socially and educationally backward classes, to provide reservation in education and public appointments, to operate separate HIV surveillance centres, to address health and social issues, to provide medical care, separate public toilets, social welfare schemes, and to create public awareness., In Union of India v. Association of Democratic Reforms, proceedings under Article 136 were initiated against the judgment of the High Court of Delhi which recognised the rights of citizens to receive information regarding criminal activities of a candidate. The High Court directed the Election Commission to secure information on whether the candidate is accused of any offence and the assets possessed by a candidate. A three‑Judge Bench of this Court dismissed the appeal and held that it is imperative that the electorate possesses sufficient information to enable them to exercise their right to vote. The Court observed that the electorate should be sufficiently informed so that they may influence intelligently the decisions which may affect themselves, including casting votes. The Court also held that it has ample power to direct the Commission to fill the void in the absence of suitable legislation and that the executive must fill the vacuum by executive orders where the legislature has not acted., While the precedents on the subject are not numerous in the text of the judgment, some of the judgments on this point are footnoted. In view of the discussion above, the observation of Justice Bhat that an overt action of the State is necessary for the court to direct the State to create enabling conditions has no jurisprudential basis. Neither the provisions of the Constitution nor earlier decisions of this Court create such a distinction. Article 32 of the Constitution states that the Supreme Court shall have the power to issue directions for the enforcement of rights conferred by Part III without making any distinction between action and inaction by the State., I also disagree with the observations of Justice Bhat that in the absence of a legal regime, the power of this Court to issue directions to enable the facilitation of rights is limited. In Sheela Barse v. Union of India, the petitioner, a social activist, brought to the attention of this Court that the State of West Bengal jailed persons with mental disabilities who were not suspected, accused, charged or convicted of any offence but only because they were mentally ill. This Court held that the admission of such mentally ill persons to jails was illegal and unconstitutional and directed that hospitals be immediately upgraded, psychiatric services be set up in all teaching and district hospitals, and mental health care be integrated with primary health care., In PUCL v. Union of India, the petitioner submitted that the right to livelihood implies that the State has a duty to provide food to people. This Court identified government schemes which constituted legal entitlements of the right to food and outlined the manner of implementing these schemes., Justice Bhat relies on the example of Article 19(1)(d) to argue that in the absence of a law which casts a duty on the State to provide transportation through roads, a citizen cannot approach the court to seek construction of a road to enforce the right to move freely. This reasoning is contrary to the judgment of a three‑Judge Bench of this Court in State of Himachal Pradesh v. Umed Ram Sharma, where the High Court directed the Superintending Engineer of the Public Works Department to complete the construction of a road benefiting residents, including Dalits. This Court dismissed the appeal, observing that the Constitution places a duty on the State to provide roads for residents of hilly areas because access to roads is encompassed in their right to secure a quality life under Article 21., Justice Bhat holds that the legal dimension of marriage in the United States is different from that in India; that the legality of a marriage in the United States is solely dependent on a validly obtained licence; that in India the legal status of a marriage stems from personal law and customs; and that the terms of marriage are set, to a large extent, independently of the State. While marriage predates the State, I am unable to agree that the status of a marriage in India stems only from personal law and customs. The legal status of a married couple stems from statute. Once the State began regulating marriage, the validity and consequently the status of marriage is traceable to law. Statutes may provide that a marriage is valid if performed in accordance with custom, but the relevance of custom is because of law. Moreover, numerous legislations govern marriage—divorce, custody, maintenance, domestic violence and offences—demonstrating that the terms of marriage are not set independently of the State. Under the Constitution, the State is empowered to reform social institutions including marriage in line with constitutional values., Contrary to what is stated in the judgment of Justice Bhat, the directions in my judgment do not require the State to create a social or legal status or a social institution. The directions are with a view to recognising the choice that a person makes for themselves when they choose another to be their partner for life. The directions give effect to the fundamental rights in Part III of the Constitution. This is the mandate of the Supreme Court of India under Article 32, which empowers the Court to issue directions, orders or writs for the enforcement of any of the rights conferred by this Part. No response is forthcoming to my detailed exposition of the scope of the powers of this Court under Article 32. In fact, Justice Bhat himself recognizes that courts often enable and oblige the State to take measures. My learned brother also arrives at the conclusion that the State is indirectly discriminating against the queer community but fails to exercise the power vested in this Court by Article 32 to alleviate this discrimination in any way. This Court is not creating a legal regime exclusively for persons of the queer community but merely recognising the duty of the State to recognise the entitlements flowing from exercising the right to choose a life partner., Justice Bhat states that no one has contended that two queer persons have the right of a sustained partnership which is traceable to Articles 19(1)(a), (c), (d) and the right to conscience under Article 25. This is not true, as demonstrated by the segment of this judgment on the submissions made by the petitioners., Justice Bhat has held that (a) the classification in legislation is to be discerned by gathering the object sought to be achieved by the enactment; the object of the Special Marriage Act was to enable inter‑faith heterosexual marriage, so the classification is between same‑faith heterosexual couples and inter‑faith heterosexual couples and does not discriminate against queer persons; and (b) the test for discrimination is not the object of the statute but its effect and impact. The effect of the State regulating marriage only for heterosexual couples is that it adversely impacts queer persons, resulting in denial of entitlements and discrimination. The State must address this deprivation and take remedial action. My learned brother contradicts himself by holding that the Special Marriage Act is not discriminatory by relying on its object, while also stating that the State has indirectly discriminated against the queer community because the effect, not the object, is relevant., The central question which arises for consideration of this Court is whether the absence of law or a regulatory framework, or the failure of the State to enact law, amounts to discrimination that is protected under Article 15. Justice Bhat states that there is no known jurisprudence pointing to the absence of law being considered as discrimination as understood under Article 15. His reasoning assesses the objective of a law instead of its effect, deviating from the jurisprudence developed by this Court on the interpretation of Article 15. An example is given where a law enabling only citizens of a particular caste to avail services of a government hospital, without expressly prohibiting others, can have the effect of excluding certain groups on the basis of prohibited markers of identity, illustrating that the absence of a law or an enabling law can have the same restrictive effect as a law that expressly bars certain actions., I disagree with the observation that the State has a positive obligation under Article 21 but such an obligation cannot be read into other fundamental rights other than Article 21. I reiterate the observations made in Section D(ix)(a)., Justice Bhat distinguishes the judgments in Vishaka, Common Cause and National Legal Services Authority from the present case by holding that in each of these cases, directions were passed because the inadequacies were acute and intolerable and faced by entire groups. He does not explain why the inadequacies faced by the queer community in this case are mild or tolerable.
id_1381	13	There is neither a test nor a standard known to law by which discrimination, or the violation of a fundamental right, must reach a level of intolerability for the Supreme Court of India to exercise its jurisdiction. Regardless of the severity of the violation, it is the duty of the Supreme Court of India to protect the exercise of the right in question. Further, in this case too, the rights of an entire group, namely the queer community, are at issue., The opinion of Justice Bhat highlights that the reading of the Adoption Regulations to permit unmarried couples to adopt would have disastrous outcomes because the law, as it stands today, does not guarantee the protection of the child of unmarried parents adopting jointly. A reading of the numerous laws relating to the rights of children qua parents indicates that the law does not create any distinction between children of married and unmarried couples so long as they are validly adopted. Section 12 of the Hindu Adoptions and Maintenance Act, 1956 states that an adopted child shall be deemed to be the child of their adopted parents for all purposes from the date of adoption. Similarly, Section 63 of the Juvenile Justice Act also creates a deeming fiction. The provision states that a child in respect of whom an adoption order is issued shall become the child of the adoptive parents and the adoptive parents shall become the parents of the child as if the child had been born to the adoptive parents, including for the purposes of intestacy., In view of the deeming fiction created by Section 12 of the Hindu Adoptions and Maintenance Act, 1956 and Section 63 of the Juvenile Justice Act, an adopted child is a legitimate child of the adopting couple. The manner of determination of legitimacy prescribed by Section 112 of the Indian Evidence Act, 1872 shall not apply in view of the deeming fiction. Thus, all the benefits which are available under the law to a legitimate child (who has been validly adopted) of a married couple will equally be available to the legitimate child of an unmarried couple. For example, Section 20 of the Hindu Adoptions and Maintenance Act, 1956, which provides that a Hindu is to maintain their children, does not make any distinction between a legitimate child of a married and an unmarried couple. Similarly, succession law in India does not differentiate between the child of a married and an unmarried couple if the child has been adopted by following the due process of law. The breakdown of the relationship of an unmarried couple will not lead to a change in applicable law because the child will continue to be a legitimate child even after the breakdown of the relationship. It is therefore unclear what the disastrous outcomes referred to are. The learned brother has also failed to address whether Regulation 5(3) is discriminatory for distinguishing between married and unmarried couples for the purpose of adoption and for the disproportionate impact that it has on the members of the queer community while simultaneously holding that the State cannot, on any account, make regulations that are facially or indirectly discriminatory on the ground of sexual orientation., Counsel for the petitioners and some counsel for the respondents advanced extensive submissions on the various forms of violence and discrimination that society and the state machinery inflict upon the queer community, especially queer couples. Counsel sought directions to obviate such violence and discrimination. The Union Government, State Governments, and Governments of Union Territories are directed to: (i) ensure that the queer community is not discriminated against because of their gender identity or sexual orientation; (ii) ensure that there is no discrimination in access to goods and services to the queer community, which are available to the public; (iii) take steps to sensitize the public about queer identity, including that it is natural and not a mental disorder; (iv) establish hotline numbers that the queer community can contact when they face harassment and violence in any form; (v) establish and publicise the availability of safe houses or Garima Grehs in all districts to provide shelter to members of the queer community who are facing violence or discrimination; (vi) ensure that treatments offered by doctors or other persons, which aim to change gender identity or sexual orientation, are ceased with immediate effect; (vii) ensure that inter‑sex children are not forced to undergo operations with regard only to their sex, especially at an age at which they are unable to fully comprehend and consent to such operations; (viii) recognize the self‑identified gender of all persons including transgender persons, hijras, and others with sociocultural identities in India, as male, female, or third gender, and no person shall be forced to undergo hormonal therapy or sterilisation or any other medical procedure either as a condition or prerequisite to grant legal recognition to their gender identity or otherwise., The appropriate Government under the Mental Healthcare Act must formulate modules covering the mental health of queer persons in their programmes under Section 29(1). Programmes to reduce suicides and attempted suicides, envisaged by Section 29(2), must include provisions which tackle queer identity. The following directions are issued to the police machinery: (i) there shall be no harassment of queer couples by summoning them to the police station or visiting their places of residence solely to interrogate them about their gender identity or sexual orientation; (ii) they shall not force queer persons to return to their natal families if they do not wish to return to them; (iii) when a police complaint is filed by queer persons alleging that their family is restraining their freedom of movement, the police shall, on verifying the genuineness of the complaint, ensure that their freedom is not curtailed; (iv) when a police complaint is filed apprehending violence from the family for the reason that the complainant is queer or is in a queer relationship, the police shall, on verifying the genuineness of the complaint, ensure due protection; (v) before registering an FIR against a queer couple or one of the parties in a queer relationship (where the FIR is sought to be registered in relation to their relationship), the police shall conduct a preliminary investigation in terms of Lalita Kumari v. Government of U.P., to ensure that the complaint discloses a cognizable offence. The police must first determine if the person is an adult. If the person is an adult and is in a consensual relationship with another person of the same or different gender or has left their natal home of their own volition, the police shall close the complaint after recording a statement to that effect., In view of the discussion above, the following are the conclusions and orders of enforcement: (a) The Supreme Court of India is vested with the authority to hear this case. Under Article 32, the Supreme Court of India has the power to issue directions, orders, or writs for the enforcement of the rights in Part III of the Constitution; (b) Queerness is a natural phenomenon known to India since ancient times; it is not urban or elite; (c) There is no universal conception of the institution of marriage, nor is it static. Under Articles 245 and 246 of the Constitution read with Entry 5 of List III to the Seventh Schedule, it lies within the domain of Parliament and the state legislatures to enact laws recognizing and regulating queer marriage; (d) Marriage has attained significance as a legal institution largely because of regulation by the state. By recognizing a relationship in the form of marriage, the state grants material benefits exclusive to marriage; (e) The State has an interest in regulating the intimate zone to democratize personal relationships; (f) The issue of whether the Constitution recognizes the right to marry did not arise before the Supreme Court of India in Justice K.S. Puttaswamy (J), Shafin Jahan, and Shakti Vahini; (g) The Constitution does not expressly recognise a fundamental right to marry. An institution cannot be elevated to the realm of a fundamental right based on the content accorded to it by law. However, several facets of the marital relationship are reflections of constitutional values including the right to human dignity and the right to life and personal liberty; (h) The Supreme Court of India cannot either strike down the constitutional validity of the Special Marriage Act or read words into the Special Marriage Act because of its institutional limitations. The Court, in the exercise of the power of judicial review, must steer clear of matters, particularly those impinging on policy, which fall in the legislative domain; (i) The freedom of all persons, including queer couples, to enter into a union is protected by Part III of the Constitution. The failure of the State to recognise the bouquet of entitlements which flow from a union would result in a disparate impact on queer couples who cannot marry under the current legal regime. The State has an obligation to recognise such unions and grant them benefit under law; (j) In Article 15(1), the word \sex\ must be read to include sexual orientation, not only because of the causal relationship between homophobia and sexism but also because the word \sex\ is used as a marker of identity which cannot be read independent of the social and historical context; (k) The right to enter into a union cannot be restricted based on sexual orientation. Such a restriction will be violative of Article 15. Thus, this freedom is available to all persons regardless of gender identity or sexual orientation; (l) The decisions in Navtej Singh Johar v. Union of India and Justice K.S. Puttaswamy (J) recognise the right of queer couples to exercise the choice to enter into a union. This relationship is protected from external threat. Discrimination on the basis of sexual orientation will violate Article 15; (m) Transgender persons in heterosexual relationships have the right to marry under existing law, including personal laws which regulate marriage; (n) Intersex persons who identify as either male or female have the right to marry under existing law, including personal laws which regulate marriage; (o) The State must enable the LGBTQ community to exercise its rights under the Constitution. Queer persons have the right to freedom from coercion from their natal families, agencies of the State including the police, and other persons; (p) Unmarried couples, including queer couples, can jointly adopt a child. Regulation 5(3) of the Adoption Regulations is ultra vires the Juvenile Justice Act, Articles 14 and 15 of the Constitution. Regulation 5(3) is read down to exclude the word \marital\. The reference to a couple in Regulation 5 includes both married and unmarried couples as well as queer couples. The principle in Regulation 5(2)(a) that the consent of spouses in a marriage must be obtained if they wish to adopt a child together is equally applicable to unmarried couples who seek to jointly adopt a child; however, while framing regulations, the State may impose conditions which will subserve the best interest and welfare of the child; (q) The Central Adoption Resource Authority Circular disproportionately impacts the queer community and is violative of Article 15; (r) The Union Government, State Governments, and Governments of Union Territories shall not discriminate against the freedom of queer persons to enter into a union with benefits under law; (s) The Solicitor General assures that the Union Government will constitute a Committee chaired by the Cabinet Secretary for the purpose of defining and elucidating the scope of the entitlements of queer couples who are in unions. The Committee shall include experts with domain knowledge and experience in dealing with the social, psychological, and emotional needs of persons belonging to the queer community as well as members of the queer community. The Committee shall, before finalising its decisions, conduct wide stakeholder consultation amongst persons belonging to the queer community, including persons belonging to marginalized groups, and with the governments of the States and Union Territories. The Committee shall consider, inter alia, (i) enabling partners in a queer relationship to be treated as part of the same family for the purposes of a ration card and to have the facility of a joint bank account with the option to name the partner as a nominee in case of death; (ii) in terms of the decision in Common Cause v. Union of India, as modified by Common Cause v. Union of India, medical practitioners have a duty to consult family or next of kin or next friend in the event patients who are terminally ill have not executed an Advance Directive, and parties in a union may be considered family for this purpose; (iii) jail visitation rights and the right to access the body of the deceased partner and arrange the last rites; (iv) legal consequences such as succession rights, maintenance, financial benefits under the Income Tax Act, 1961, rights flowing from employment such as gratuity, family pension and insurance. The report of the Committee chaired by the Cabinet Secretary shall be implemented at the administrative level by the Union Government and the governments of the States and Union Territories., The petitions in these proceedings are disposed of in terms of this judgment. Pending applications, if any, are disposed of. [Dr. Dhananjaya Y. Chandrachud] New Delhi; 17 October 2023., This case presents a new path and a new journey in providing legal recognition to non‑heterosexual relationships. I have had the benefit of the exhaustive and erudite judgment of the Hon'ble Chief Justice Dr. D.Y. Chandrachud, which enumerates the prevalence of these relationships in history, the constitutional recognition of the right to form unions (in other words civil unions), and the necessity of laying down guidelines to protect non‑heterosexual unions. In a way, this is a step forward from the decriminalisation of private consensual sexual activities by the LGBTQ+ community in Navtej Singh Johar & Ors. v. Union of India., Historical prevalence of non‑heterosexual unions: In their submissions, the respondents raised doubts about the social acceptability of non‑heterosexual relationships. Before we address the same, it is no longer integral that the duty of a constitutional Court is to uphold the rights enshrined in the Constitution and not be swayed by majoritarian tendencies or popular perceptions. The Supreme Court of India has always been guided by constitutional morality and not by social morality., A pluralistic social fabric has been an integral part of Indian culture and the cornerstone of our constitutional democracy. Non‑heterosexual unions are well‑known to ancient Indian civilization as attested by various texts, practices, and depictions of art. These markers of discourse reflect that such unions are an inevitable presence across human experience. Hindu deities were multi‑dimensional and multi‑faceted and could appear in different forms. One of the earliest illustrations is from the Rig Veda itself. Agni, one of the most important deities, has been repeatedly described as the child of two births (dvijanman), child of two mothers (dvimatri), and occasionally, child of three mothers (the three worlds)., In Somdatta's Kathasaritsagara, same‑sex love is justified in the context of rebirth. Somaprabha falls in love with Princess Kalingasena and claims that she loved her in her previous birth as well. Hindu mythology is replete with several such examples. The significant aspect is that same‑sex unions were recognised in antiquity, not simply as unions that facilitate sexual activity, but as relationships that foster love, emotional support, and mutual care., Even in the Sufi tradition, devotion is often constructed around the idea of love as expressed through music and poetry. In several instances, the human relationship with the divine was expressed by mystics through the metaphor of same‑sex love. Love across genders is also reflected in the Rekhti tradition of Lucknow, which is centred around male poets writing in a female voice and is characterised by its homoeroticism. Significantly, the depictions of same‑sex relationships are charged with affects such as love, friendship, and companionship., Marriage as an institution developed historically and served various social functions. It was only later in its long history that it came to be legally recognised and codified. However, these laws regulated only one type of socio‑historical union, i.e., the heterosexual union., It would thus be misconceived to claim that non‑heterosexual unions are only a facet of the modern social milieu. The objective of penning down this section is to provide perspective on the existence of non‑heterosexual unions, despite continued efforts towards their erasure by the heteronormative majority., Non‑heterosexual unions are entitled to protection under our constitutional schema. In Maqbool Fida Husain, I observed: Our Constitution, by way of Article 19(1), which provides for freedom of thought and expression, underpins a free and harmonious society. It helps to cultivate the virtue of tolerance. It is said that the freedom of speech is the matrix, the indispensable condition of nearly every other form of freedom. It is the wellspring of civilisation and without it liberty of thought would shrivel., The necessity of recognising civil unions: The judgment of the Hon'ble Chief Justice notes that the right to form unions is a feature of Articles 19 and 21 of the Constitution. Therefore, the principle of equality enumerated under Articles 14 and 15 demands that this right be available to all, regardless of sexual orientation and gender. Having recognised this right, the Supreme Court of India has taken on board the statement of the Learned Solicitor General to constitute a Committee to set out the scope of benefits available to such unions. I agree with the Hon'ble Chief Justice., The petitioners' submissions demand that the Special Marriage Act, 1872 be tested on the touchstone of Part III of the Constitution, i.e., whether it is discriminatory on the basis of sex and thus violative of Articles 14 and 15 of the Constitution. It is now settled law that Article 14 contemplates a two‑pronged test: (i) whether the classification made by the Special Marriage Act is based on an intelligible differentia; and (ii) whether the classification has a reasonable nexus to the objective sought to be achieved by the State. The first prong, i.e., intelligible differentia, implies that the differentia should be clear and not vague. Section 4 of the Special Marriage Act is clear in so far as it contemplates a marriage between a male who has completed the age of twenty‑one years and a female at the age of eighteen years. In defining the degrees of prohibited relationships, Section 2(b) of the Special Marriage Act exclusively applies to a relationship between a man and a woman. Thus, by explicitly referring to marriage in heterosexual relationships, the Special Marriage Act by implication creates two distinct and intelligible classes: heterosexual partners who are eligible to marry and non‑heterosexual partners who are ineligible., Under the second prong, the Court examines whether the classification is in pursuit of a State objective. The Special Marriage Act's Statement of Objects and Reasons assists us in determining the objective. It is reproduced hereunder: \This Bill revises and seeks to replace the Special Marriage Act of 1872 so as to provide a special form of marriage which can be taken advantage of by any person in India and by all Indian nationals in foreign countries irrespective of the faith which either party to the marriage may profess. The parties may observe any ceremonies for the solemnisation of their marriage, but certain formalities are prescribed before the marriage can be registered by the Marriage Officers. For the benefit of Indian citizens abroad, the Bill provides for the appointment of Diplomatic and Consular Officers as Marriage Officers for solemnising and registering marriages between citizens of India in a foreign country. Provision is also sought to be made for permitting persons who are already married under other forms of marriage to register their marriages under this Act and thereby avail themselves of these provisions. The Bill is drafted generally on the lines of the existing Special Marriage Act of 1872 and the notes on clauses attached hereto explain some of the changes made in the Bill in greater detail.\ From the above, we see that the Special Marriage Act postulates a special form of marriage available to any person in India irrespective of faith. Therefore, the Special Marriage Act provides a secular framework for solemnisation and registration of marriage., I respectfully disagree with Justice Bhat that the sole intention of the Special Marriage Act was to enable marriage of heterosexual couples exclusively. To my mind, the stated objective of the Special Marriage Act was not to regulate marriages on the basis of sexual orientation. This cannot be so as it would amount to conflating the differentia with the object of the statute. Although substantive provisions of the Special Marriage Act confer benefits only on heterosexual relationships, this does not automatically reflect the object of the statute. For as we are all aware, we often act in ways that do not necessarily correspond to our intent. Therefore, we cannot look at singular provisions to determine the substantive intent of the statute. Doing so would be missing the forest for the trees., If the intent of the Special Marriage Act is to facilitate inter‑faith marriages, then there would be no rational nexus with the classification it makes, i.e., excluding non‑heterosexual relationships. In any event, regulating only heterosexual marriages would not be a legitimate State objective. It is settled law that the Court can also examine the normative legitimacy and importance of the State objective, more so in a case such as this where sex (and thereby sexual orientation) is an ex‑facie protected category under Article 15(1) of the Constitution. An objective to exclude non‑heterosexual relationships would be unconstitutional, especially after this Court in Navtej Singh Johar has elaborately proscribed discrimination on the basis of sexual orientation. Therefore, the Special Marriage Act is violative of Article 14., However, I recognise that there are multifarious interpretive difficulties in reading down the Special Marriage Act to include marriages between non‑heterosexual partners. These have been enumerated in significant detail in the opinions of both the Hon'ble Chief Justice and Hon'ble Justice Bhat. I also agree that the entitlements devolving from marriage are spread out across a proverbial spider's web of legislations and regulations. As rightly pointed out by the Learned Solicitor General, tinkering with the scope of marriage under the Special Marriage Act can have a cascading effect across these disparate laws., In fact, the presence of this web of statutes shows that discrimination under the Special Marriage Act is but one example of a larger, deeper form of social discrimination against non‑heterosexual people that is pervasive and structural in nature. Ordinarily, such an intensive form of discrimination should require keener and more intensive judicial scrutiny. However, due to limited institutional capacity, the Supreme Court of India does not possess an adequate form of remedy to address such a violation. As pointed out in the judgment of the Hon'ble Chief Justice, substantially reading into the statute is beyond the powers of judicial review and would be in the legislative domain. It would also not be prudent to suspend or strike down the Special Marriage Act, given that it is a beneficial legislation and is regularly and routinely used by heterosexual partners desirous of getting married. For this reason, this particular methodology of recognising the right of non‑heterosexual partners to enter into a civil union, as opposed to striking down provisions of the Special Marriage Act, ought to be considered as necessarily exceptional in nature. It should not restrict the Courts while assessing such deep‑seated forms of discrimination in the future., Non‑heterosexual unions and heterosexual unions/marriages ought to be considered as two sides of the same coin, both in terms of recognition and consequential benefits. The only deficiency at present is the absence of a suitable regulatory framework for such unions. The Supreme Court of India in Navtej noted that: \History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.\ I believe that this moment presents an opportunity of reckoning with this historical injustice and casts a collective duty upon all constitutional institutions to take affirmative steps to remedy the discrimination., Thus, the next step in due course would be to create an edifice of governance that would give meaningful realisation to the right to enter into a union, whether termed as marriage or a union. Charting a course: interpreting statutes using constitutional principles. As noted above, the benefits pertaining to marriage are spread out across several incidental legislations and regulations. These statutes presently do not explicitly extend to civil unions. However, now that we have recognised the right to enter into civil unions, such statutes must be read in a manner to give effect to this right, together with the principle of equality and non‑discrimination under Articles 14 and 15. In other words, statutory interpretation must be in consonance with constitutional principles that are enumerated by this Court. Needless to say, this should not detract from the Committee's task of ironing out the nitty‑gritties of the entitlements of civil unions., This exercise is necessary to foster greater coherence within the legal system as a whole, both inter se statutes and between statutes and the Constitution. Reading statutes in this manner will facilitate interconnectedness by allowing constitutional values to link statutes within the larger legal system. Constitutional values emanate from a living document and thus are constantly evolving. Applying constitutional values to interpret statutes helps update statutes over time to reflect changes since the statutes' enactment. Ordinarily, constitutional principles come in contact with statutes when the validity of such statutes is being tested. However, constitutional values should play a more consistent role, which can be through the everyday task of statutory interpretation., This interpretive technique has gained currency across jurisdictions. In the famous L\u00fctke case, the Federal Constitutional Court of Germany recognised that the constitutional right of freedom of expression as enumerated under the German Basic Law also radiates into the statutory law of defamation. The Court noted that: \But far from being a value‑free system the Constitution erects an objective system of values in its section on basic rights, and thus expresses and reinforces the validity of the basic rights. This system of values, centring on the freedom of the human being to develop in society, must apply as a constitutional axiom throughout the whole legal system: it must direct and inform legislation, administration, and judicial decision.\ The Constitution of South Africa has an explicit provision which directs that the interpretation of statutory law shall be in due regard to the spirit, purport and objects of the chapter on fundamental rights.
id_1381	14	It needs to be revisited and revitalized with the spirit of the constitutional values defined in Chapter 3 of the Constitution and with full regard to the purport and objects of that Chapter. Although no such provision exists in the Indian Constitution, the Supreme Court of India is no stranger to interpreting statutory laws through fundamental rights. In Central Inland Water Transport Corporation v. Brojo Nath Ganguly, the Supreme Court of India was concerned with the interpretation of public policy under Section 23 of the Indian Contract Act, 1872. In this context, the Supreme Court observed: It is thus clear that the principles governing public policy must be and are capable, on proper occasion, of expansion or modification. Practices which were considered perfectly normal at one time have today become obnoxious and oppressive to public conscience. If there is no head of public policy which covers a case, then the court must in consonance with public conscience and in keeping with public good and public interest declare such practice to be opposed to public policy. Above all, in deciding any case which may not be covered by authority, the Supreme Court of India has before it the beacon light of the Preamble to the Constitution. Lacking precedent, the court can always be guided by that light and the principles underlying the Fundamental Rights and the Directive Principles enshrined in our Constitution., This technique of reading in constitutional values should be used harmoniously with other canons of statutory interpretation. In this context, legislations that confer benefits on the basis of marriage should be construed to include civil unions as well, where applicable., I am wholeheartedly in agreement with the opinion of the Honorable Chief Justice that there is a need for a separate anti‑discrimination law which inter alia prohibits discrimination on the basis of sexual orientation. Presently, there are several laws that have an anti‑discrimination aspect to them. However, they are fragmented and may fail to capture the multitudinous forms of discrimination. Another compelling reason for a law that places a horizontal duty of anti‑discrimination is provided by the spirit of Article 15, which prohibits discrimination by both the State and private actors. Presently, although the Supreme Court of India assumes its role as the sentinel on the qui vive, the only method to enforce this constitutional right under Article 15 would be through its writ jurisdiction. There are significant challenges for marginalized communities to access this remedy. Therefore, the proliferation of remedies through an anti‑discrimination statute can be a fitting solution. Such legislation would also be in furtherance of the positive duty of the State to secure social order and to promote justice and social welfare under Article 38 of the Constitution., My suggestions for an anti‑discrimination law are as follows. First, such a law should recognize discrimination in an intersectional manner. That is to say, in assessing any instance of discrimination, the Supreme Court of India cannot confine itself to a singular form of discrimination. Instead, discrimination must be looked at as a confluence of factors and individual instances of oppression that intersect and create a distinct form of disadvantage. Discrimination laws can only be effective if they address the types of inequality that have developed in the given society. This principle has already been recognized by this Court in Navtej Singh Johar v. Union of India. Second, the duties under an anti‑discrimination law can be proportionately distributed between different actors depending on factors such as the nature of functions discharged, their control over access to basic resources, and the impact on their negative liberty. Third, an anti‑discrimination statute must also enumerate methods to redress existing discrimination and bridge the advantage gap. This could be through policies that distribute benefits to disadvantaged groups., The principle of equality mandates that non‑heterosexual unions are not excluded from the mainstream socio‑political framework. However, the next step would be to examine the framework itself, which cannot be said to be neutral. On the contrary, it is inherently value‑laden. One particularly pernicious value is patriarchy, which manifests in various oppressive ways. Gendered stereotypes and sex‑based violence are lived realities of many. This is something both society and law recognise., I believe that the legal recognition of non‑heterosexual unions can challenge culturally ordained gender roles even in heterosexual relationships. For a long period of time, marriage has been viewed in gendered terms. That is to say, one’s status as husband or wife determines their duties and obligations towards each other, their family, and society. Marriage enforces and reinforces the linkage of gender with power by husband/wife categories, which are synonymous with social power imbalances between men and women. This is notwithstanding the fact that there has been progressive awareness of these issues. Non‑heterosexual unions can make an important contribution towards dismantling this imbalance while emphasizing alternative norms. As Eskridge puts it: In a man‑man marriage where tasks are divided up along traditional lines, a man will be doing the accustomed female role of keeping house. It is this symbolism that represents the deeper challenge to traditional gender roles. Once female‑female and male‑male couples can marry, the wife‑housekeeper/husband‑breadwinner model for the family would immediately become less normal, and perhaps even abnormal over time. The wife as someone who derives independent satisfaction from her job outside the home would immediately become a little bit more normal., In a non‑heterosexual union, duties and obligations are not primarily dictated by culturally ordained gender norms. In other words, both partners are not limited by extant gender norms to shape their relationship, including the division of labour. For instance, studies have found that partners in non‑heterosexual relationships share unpaid labour more equally than those in heterosexual relationships. This is not to suggest that other imbalances of power do not exist within non‑heterosexual unions. Nevertheless, non‑heterosexual unions are not limited by the legally and socially sanctioned gendered power dynamic that can be present in heterosexual unions., Legal recognition aids social acceptance, which in turn increases queer participation in public spaces. Through the medium of legal recognition, queer persons will have a greater opportunity to be seen and heard in ways not previously possible. Queer expression will help facilitate an expansive social dialogue, cutting across communities and generations. This dialogue will help us reimagine all our relationships in a manner that emphasizes values such as mutual respect, companionship, and empathy., Conclusion. Is this the end where we have arrived? The answer must be an emphatic no. Legal recognition of non‑heterosexual unions represents a step forward towards marriage equality. At the same time, marriage is not an end in itself. The Constitution contemplates a holistic understanding of equality, which applies to all spheres of life. The practice of equality necessitates acceptance and protection of individual choices. The capacity of non‑heterosexual couples for love, commitment and responsibility is no less worthy of regard than heterosexual couples. Let us preserve this autonomy, so long as it does not infringe on the rights of others. After all, it is my life., Sanjay Kishan Kaul, New Delhi, October 17, 2023., Table of Contents. II. State interest in regulating social practices, through legislation. A. The trinity – autonomous choice, dignity and non‑discrimination. B. Rights flowing from previous decisions of this Court relating to the queer community. IV. Positive obligations in furtherance of fundamental rights. A. Challenge to the Special Marriage Act on the ground of impermissible classification. VII. Transgender persons in heterosexual relationships can marry under existing law. A. Not a case of delegated legislation being ultra vires the parent Act. B. Not a case for reading down or other interpretive construction. C. Discriminatory impact of adoption regulations on queer persons., At the centre of the dispute lies the definition and the content of two willing individuals’ right to marry. On the one hand the petitioners assert that marriage is an evolving social institution, capable of embracing the union of two willing non‑heterosexual, queer or LGBTQ+ individuals and necessitating state recognition; on the other, the respondents assert that the institution of marriage rests on certain constant and unchanging premises, the most prominent of which is that it is a heterosexual union. The task of the Supreme Court of India lies in determining how the Constitution speaks on the issue., Having had the benefit of reading the draft and revised opinions circulated by the learned Chief Justice, Justice Dhananjaya Y. Chandrachud, we find it necessary to pen our reasoning and conclusions in this separate judgment. The learned Chief Justice has recorded in detail the submissions made by counsel, and claims made; they consequently do not require reiteration. Similarly, the sections addressing the Union Government’s preliminary objections, i.e., the discussion on the Court’s authority to hear the case (Section D(i)), and that queerness is a natural phenomenon that is neither urban nor elite (Section D(ii)), are parts we have no hesitation in agreeing with. However, we do not agree with the conclusions arrived at by the learned Chief Justice and the directions issued. We do agree with certain premises and conclusions that he has recorded: (a) that there exists no fundamental right to marry under the Constitution; (b) that the Special Marriage Act, 1956 is neither unconstitutional nor can it be interpreted in such a manner as to enable marriage between queer persons; and (c) that transgender persons in heterosexual relationships have the right to solemnise marriage under existing legal frameworks. We have briefly highlighted our main points of agreement, and reasoned in more detail those aspects with which, respectfully, we cannot persuade ourselves to concur. We had the benefit of perusing the concurring opinion of Justice Narasimha. We endorse those observations and conclusions fully; the reasoning and conclusions shall be read as supplementing that of the present judgment., The common ground on which the batch of petitions claim relief is that LGBTQ+ persons are entitled to solemnise and register their marriage; in other words, they claim a right to legal recognition of their unions within the marriage fold. The petitioners rely on fundamental rights to equality and non‑discrimination, dignity and autonomy, and expression and association, and specifically focus on Section 4(c) of the Special Marriage Act as well as the first and second schedules thereof, to state that particular references to husband or wife in its provisions are to be read down, and a neutral expression needs to be substituted instead. A few petitioners also claim that Section 4(c) and Section 17 of the Foreign Marriage Act, 1969 need to be similarly read down. Some of the prayers also relate to the right of such couples to adopt under existing laws in India. Some of the prayers specifically challenged Chapter II of the Special Marriage Act relating to notice and objections procedure prescribed. However, during the course of hearing, the Court indicated that this was not a question of law that necessitated a five‑judge bench ruling, and hence this issue was to be left for consideration by a numerically smaller bench., Marriage, as a social institution, predates all rights, forms of political thought and laws. The institution of family has no known origin in the sense that there has been no stage of human existence in which family was absent leading to another time in which it emerged. Marriage, however, has been regarded for the longest time as a relationship of man to woman which is recognized by custom, and thereafter law; it involves certain rights and duties in the case of both persons entering the union. It is considered to be one of the most important relationships, as it affects not only the individuals’ happiness and well‑being but also that of others. It has long been regarded as the reason for society’s continuance on the one hand, and its building block on the other. What is marriage and the conceptualisation of its role in society has undergone change over time; it has engaged the attention of philosophers, from Plato to Hegel, Kant and John Stuart Mill and of religious leaders, like St. Augustine., Different traditions view marriage as sacraments and indissoluble unions (Hindus and Catholic Christians); Islam regards marriage as both contractual and sacred; Parsis regard it as both a sacrament and contractual. Most, if not all, place importance on procreation, creation of family, co‑habitation, shared values as important markers; at the same time, these traditions also recognise – in varying degrees – importance of companionship, spiritual union, friendship and togetherness of the spouses., The respondents are right, in one sense, in underlining that all conceptions of what constitutes marriage, all traditions and societies, have historically understood marriage as between heterosexual couples. The contexts of culture, social understanding of what constitutes marriage, in every social order are undoubtedly very important. At the same time, for the purpose of determining the claims in these petitions, it is also necessary to mark the progression of what were deemed constitutive and essential constituents, and essential boundaries within which marriages were accepted., Marriages have not always been dictated by voluntary choice. In medieval European societies, when a girl was physically able to consummate marriage, she was eligible for matrimony. Among the nobility and landed gentry, the principal consideration for marriage was exchange of property in the form of dowry. Thus, it was not uncommon that among the upper classes marriages were loveless and unhappy. The sole reason for marriage was touted to be procreation, which the church dictated; thus, consummation of marriage and physical sexual relations were considered the most important features of every marriage, since this meant the establishment of family. Among Hindus, barriers of other kinds, such as ban on sagotra and sapinda marriages, and impermissibility of non‑endogamous marriages, were widely prevalent for a long time. Although amongst Muslims, marriage is both sacramental and contractual, and requires exercise of free will, nevertheless, it is premised on the agreement of mehar, or the amount the groom would offer, for the bride. Muslims are permitted to marry others of the same faith, or from the People of the Book (known as Kitabiyas), such as Jews, Sabians and Christians. No marriage with polytheists is permitted. Similarly, widow remarriage amongst Hindus was prohibited. Likewise, injunctions against inter‑caste marriages were widely prevalent. Child marriages were widely prevalent too. Inter‑religious marriages were impossible. In the United States, various laws had, in the past, prohibited interracial marriages. Arranged marriages were very common throughout the world until the 18th century., It is therefore evident that for long periods, in many societies, the choice of a matrimonial partner was not free; it was bounded by social constraints. Much of the time, marriage was seen as an institution meant for procreation and sexual union of the spouses. In most societies marriage had cast roles for the spouses; they were fairly inflexible, with men controlling most decisions, and women placed in subordinate positions, with little or no voice, and, for the longest time, no legal authority, autonomy or agency. For millennia, custom, tradition and law subordinated wives to husbands. Notions of equality of partners or their roles were uncommon, if not totally unheard of. All these underwent radical change., The greater part of history shows that choice of a spouse, based on love or choice, played almost no role at all. The Enlightenment and Western thinkers of the eighteenth century established that pursuit of happiness was important to life. They advocated marrying for love, instead of status, or wealth or other considerations. The Industrial Revolution gave impetus to this thought. Marriages were solemnised and celebrated with increasing frequency in Western cultures, based on choice, voluntary consent, and without parental approval. This movement increased tremendously as women’s‑rights movement expanded and gained impetus in the nineteenth and twentieth centuries; wives started being regarded as their husbands’ equals, not their property. Couples were also enabled to choose whether to have, and if so, how many children to have. If they were unhappy with each other, they could divorce – a choice exercised by a large number of couples. Marriage became primarily a personal contract between two equals seeking love, stability, and happiness. Therefore, although social mores prevailed in relation to marriage, traditions and legal regimes were not static; the changes that society underwent or the forces that brought change also carried winds that breathed new content, new contexts and new values into the institution of marriage., Laws progress stresses individuals’ rights for equality. The form of marriage, or the legally prescribed procedures assume a secondary role – they are matters of belief and practice. They cannot be regarded as the essential content of marriage. Tying thali is necessary in South India among many Hindu communities; and in some parts the exchange of rings, garlands and some rituals is necessary in North India. Many Hindu marriage customs and traditions insist on the saptapadi; amongst Muslims, the nikah ceremony, witnessed by invitees, and other customary rituals and practices, is generally followed; Christian customs emphasize solemnisation by the couples taking marriage vows. The rich diversity of this country and its pluralism is reflected in customary practices surrounding marriage solemnisation, all if not most of which involve the couple, the members of their family, and the larger community. Ritualistic celebration of marriage is considered by some as essential, while many in other sections may deem that the factum of marriage sufficient. For relationships that did not have customary practice dating back in history, the State enacted law much like the petitioners seek., Therefore, legislations governing inter‑caste and inter‑faith marriages, and adoption, are two important social relations relating to the family, through which secularism finds its base for an egalitarian social order under the Constitution. The enactment of laws to facilitate this aspect is testimony of the right of individuals to personal choice and autonomy. For instance, enactment of the Hindu Marriage (Removal of Disabilities) Act, 1946 enabled persons from the same gotra or pravara to marry. Likewise, the bar to Hindu widows’ remarriage was removed by enacting the Hindu Widows’ Remarriage Act, 1856. Inter‑caste and inter‑faith marriages became a possibility under the Special Marriage Act after 1954., The legal dimension of marriage, in the United States the jurisprudence of which the petitioners relied on, is markedly different from the nature of marriage in India, and its evolution. This contextual difference is of great relevance when considering a constitutional question of this kind. Marriage in countries like the United States was earlier a sacramental institution that flowed from the Church and its divine authority. However, in modern times, it flows from the State, which created a licence regime for marriage. The result is that marriages may be performed and celebrated with religious traditions or rituals that have great meaning personally for the individuals but the legality of the marriage is solely dependent on a validly obtained licence. This regime has since been extended to queer couples as well in the United States. The law relating to marriage in India, however, has had a different trajectory. A deeply religious affair, it gained its legitimacy and legal status from personal law and customs that govern this aspect of life for members belonging to all faiths. The matrimonial laws that have been enacted were a result of the codification project in the 19th and 20th centuries, which expressly recognise these social practices, while continuing to offer space to unwritten customary practices as well (barring aspects like marriageable age, etc., which are regulated by law). As mentioned, the Special Marriage Act is the only avenue for a form of secular/non‑religious civil marriage which too still ties into personal law for succession and other aspects. The Indian context is elaborated in the following Part II., State interest in regulating social practices, through legislation. Before undertaking a study on whether there is a fundamental right to marry, and an obligation on the State to create such an avenue, it is necessary to traverse the brief history of state intervention in social practices including in relation to marriage. These laws were enacted in relation to different subject areas. However, a pattern certainly emerges on the limited scope of interference., The social practices resulting in stigma and exclusion of large sections of society impelled the Constitution framers to frame specific provisions like Article 15(1) and (2), Articles 17, 23 and 24, which were left to Parliament to flesh out through specific legislation. This resulted in statutes such as the Protection of Civil Rights Act, 1955; Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989; Bonded Labour System (Abolition) Act, 1976; Immoral Traffic (Prevention) Act, 1956; the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013; and their respective amendments. The laws removing barriers which prevented large sections of society from entering into temples and places of public worship is another example., In a somewhat similar vein, legislative activity aimed at bringing about gender parity through prohibiting prevailing practices that further inequality and sometimes even criminalising certain customs resulted in legislations such as the Equal Remuneration Act, 1976 (which guaranteed equal pay for equal work regardless of the sex of the worker), the Dowry Prohibition Act, 1961 as amended subsequently, introduction of provisions in criminal law which gave teeth to such provisions (Sections 498A and 304B of the Indian Penal Code, and Sections 113A and 113B of the Evidence Act, 1872 which enabled courts to raise presumptions in the trial of such offences)., Other practices aimed at realisation of social goals and furthering the mandate of Article 15(3) in respect of children such as the right to free universal education under Article 21A of the Constitution, and the Right to Free Education Act, 2009; the Child Labour (Prohibition and Regulation) Act, 1986; Protection of Children from Sexual Offences Act, 2012; the Juvenile Justice Act, 2016, etc. In all these, the Parliament or the concerned legislatures donned the role of reformers, and furthered the express provisions of the Constitution, enjoining State action, in furtherance of Articles 15(2), 15(3), 17, 23 and 24., Marriage has historically been a union solemnised as per customs, or personal law tracing its origin to religious texts. Legislative activity in the personal law field so far has been largely, though not wholly, to codify prevailing customs and traditions, and regulating them only where needed. The instances that stand out are the enactment of the Indian Succession Act, 1925; Hindu Women’s Right to Property Act, 1937; Hindu Marriage Act, 1955; the Hindu Adoptions and Maintenance Act, 1956; the Hindu Succession Act, 1956; the Hindu Minority and Guardianship Act, 1956; the Indian Divorce Act, 1869 (as amended in 2001); the Muslim Personal Law (Shariat) Application Act, 1937; and the Anand Marriage Act, 1909 (as amended). These laws mostly codified traditions and customs which existed, and to an extent, regulated marriages and succession laws. These laws also sought to introduce reforms: for the first time, monogamy was enacted as a norm applicable to all Hindus; likewise, the option of divorce was enacted, together with grounds on which other remedies (like judicial separation) could be sought. Further, the minimum age of marriage was also enacted, through provisions in various personal laws, and enforced through the Prohibition of Child Marriage Act, 2006 (which repealed the pre‑existing Child Marriage Restraint Act, 1929). This law applies to all sections of society., Existing conditions of women, especially in respect of issues such as maintenance, were considered inadequate even before the Constitution was brought into force. The earliest reform introduced was through the Bengal Sati Regulation, 1829 (by the colonial rulers). This was later followed by the Hindu Widow Remarriage Act, 1856 which enabled remarriage of Hindu widows. These enactments pre‑date the Constitution, and can be seen as reforms meant to outlaw abhorrent practices viewed as evil, and needing prohibition, to protect women’s lives; in the case of widow remarriage, it was to enable child and young widows an opportunity to lead lives. Given the diversity of Hindu traditions and the differing approaches in various schools of law, which prevailed in different parts of the country, it was considered necessary to enact the Hindu Women’s Right to Property Act, 1937 (later with the enactment of the Hindu Succession Act, 1956, some rights were expanded through its provisions). For a long time, daughters were treated unequally in regard to succession to the estate of their deceased father; this changed with the enactment of the Hindu Succession Amendment Act, 2005, and the substitution of Section 6, whereby daughters (who were hitherto excluded from succession to any coparcenary properties) became entitled to claim the share that a son was entitled to, in the case of death of a coparcener in relation to ancestral property., The right to maintenance (pendente lite, as well as alimony) was given statutory force under the Hindu Marriage Act, 1955 as well as the Hindu Maintenance and Guardianship Act, 1956, for Hindus. All married women and children of their marriage, regardless of their religious or social backgrounds, were enabled to claim maintenance, by virtue of Section 488 of the Criminal Procedure Code, 1898. This provision was re‑enacted and progressively amended through Section 125 of the Code of Criminal Procedure, 1973. The Supreme Court of India, in its five‑judge decision in Mohd. Ahmad Khan v. Shah Bano Begum upheld the right of Muslim women, including divorced Muslim women, to claim maintenance. However, soon after that decision, Parliament enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986, which diluted the ruling in Shah Bano and restricted the right of Muslim divorcées to alimony from their former husbands for only 90 days after the divorce (the period of iddat in Islamic law). The restriction imposed was however interpreted narrowly, and this Court, through a Constitution Bench, in Danial Latifi v. Union of India held that nowhere has Parliament provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time., The Age of Consent Act in 1891 raised the age of marriage from 10 to 12 years.
id_1381	15	The Child Marriage Restraint Act of 1929 prescribed the minimum age of marriage for females at 14 years and for males at 18 years. The Child Marriage Restraint Act of 1929 (also known as the Sarda Act) was enacted as a result of prolonged pressure from social reform organisations and concerned people who fought against the negative repercussions of child marriage. The age limitations were later raised to 18 years for females and 21 years for males under the Prohibition of Child Marriage Act, 2006. The practice of marrying off children at a young age, which prevailed before these enactments, was therefore interdicted by legislation., Even while exercising personal choice in marriage, these choices are regulated by law, including the prohibition of marriage between persons related by blood (consanguineous marriages). Other restrictions include the requirement to be of sound mind to give valid consent and not to be unfit for marriage or procreation of children. If a spouse is incurably of unsound mind, the other spouse can secure divorce. Bigamy among Hindus was abolished by the enactment of the Hindu Marriage Act in 1955. Reform has been the underlying theme, impelling the state to intervene., The legislative trajectory and the debates that preceded the enactment of measures such as monogamy and divorce showed a division of opinion. The first President, Rajendra Prasad, expressed strong sentiments against adopting foreign concepts that were opposed to Hindu society. Other voices, most prominently women in public life, supported the need to empower women., It can be seen that two kinds of legislation have regulated marriage. The first, such as the Special Marriage Act, the Hindu Marriage Act, the Hindu Disabilities Removal Act, and the Hindu Widows Remarriage Act, removed barriers and enabled the exercise of meaningful choice, specifically for women. The second kind of legislation enacted restrictive regulations, essentially to further an orderly society and protect women: prohibiting bigamy; defining a minimum age for marriage; and addressing child marriage. Prohibited degrees are defined under Section 3(g) of the Hindu Marriage Act, 1955, which includes not only marriages related by blood but also non‑biological ties such as the widow of a brother, a son's widow, mother‑in‑law, etc. Similar provisions exist in Section 3(1)(a) of the Parsi Marriage and Divorce Act, 1936; Section 19 of the Indian Divorce Act, 1869; and Section 88 of the Indian Christian Marriages Act, 1872., Among Muslims, the concept of consanguinity is known as qurabat, i.e., blood relationships such as marrying a mother, grandmother, sister, aunt, niece, etc. Other grounds, such as affinity or mushaarat, are also prohibited relationships, for example marriage with a mother‑in‑law, daughter‑in‑law, step‑grandmother, step‑granddaughter, or a foster relationship where a child under two years has been fed by a woman other than his mother, or when the woman becomes his foster mother; a man cannot marry his foster mother or her daughter, i.e., foster sister. Prohibited degrees are also defined in Section 5(i)(ii)(iii) of the Hindu Marriage Act, 1955; Section 13 of the Hindu Marriage Act; Section 32(b) and (bb) of the Parsi Marriage Act, 1936; Section 10(1)(iii) of the Indian Divorce Act, 1869; and under Section 2(v) of the Dissolution of Muslim Marriages Act, 1939., Some restrictions codify and recognize existing customs, such as enacting prohibited degrees of relationships, rules against insanity, and provisions enabling declaration of nullity or divorce on the ground of impotence. Others are meant to further the interests of women and children and also enable the exercise of choice., Such reforming and codification, however, did not cover the entire field. In the area of succession and inheritance, the Hindu Succession Act, 1956 enacts certain broad features but leaves untouched the rights of various communities and sections of Hindus to determine their rights in succession to joint family, Hindu Undivided Family, and coparcenary property. This unwritten, uncodified law, often based on customs and local traditions, is enforced not only in regard to inheritance but also in taxation. Likewise, the law accommodates and accords primacy to custom, for example Section 2(d), which states that persons other than Hindus—including Jews, Muslims, and Christians who may be following Hindu customs—would continue to do so; Section 7, which spells out the ceremonies of Hindu marriage, states that they shall be based on customary rites and ceremonies of either party; and similarly, customary divorce among Hindus is accorded primacy by Section 29(2). Neither the Hindu Marriage Act nor the Hindu Succession Act applies to members of the Scheduled Tribe communities; the Hindu Adoptions and Maintenance Act applies to them in a nuanced manner., The Hindu Minority and Guardianship Act contains Section 2, which states that the Act does not apply to any person domiciled in the territories to which the Act extends who is not a Muslim, Christian, Parsi, or Jew by religion, unless it is proved that such a person would not have been governed by Hindu law or any custom or usage as part of that law in respect of the matters dealt with therein if the Act had not been passed. Section 29(2) provides that nothing contained in the Act shall be deemed to affect any right recognized by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of the Act. Section 2(2) of the Hindu Marriage Act and the Hindu Succession Act are identically worded, stating that, notwithstanding anything contained in sub‑section (1), nothing contained in the Act shall apply to members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs. The Hindu Adoptions and Maintenance Act, 1956 is worded differently and includes provisions similar to those under the Hindu Minority and Guardianship Act, as well as exclusions for members of Scheduled Tribe communities., In the recent three‑judge bench decision of the Supreme Court of India in Revanasiddappa v. Mallikarjuna, the Court clarified that with the enactment of Section 16 of the Hindu Marriage Act, the legitimacy conferred upon children born of void or voidable marriages entitles them only to a share in their parents' property but does not allow them to claim ownership in their own right, and consequently they cannot seek partition during the lifetime of their parents. The Court also held that they cannot claim any rights other than those expressly provided for. Thus, uncodified law and custom were upheld., Legislative action initiated at different points in time was reformatory or meant to effectuate certain fundamental rights. Practices and customs that resulted in the degradation or diminution of individuals, and were seen as inconsistent with democratic society, were sought to be eliminated by these laws. When codification attempts resulted in residual discrimination, the courts stepped in to eliminate and enforce the fundamental rights, as in Independent Thought v. Union of India and Anr. and Shayara Bano v. Union of India and Anr., The legislations that created social status or facilitated the status of individuals in private fields are the Special Marriage Act, 1954; the Protection of Women from Domestic Violence Act, 2005 (Domestic Violence Act); and Section 41 of the Juvenile Justice (Care and Protection of Children) Act, which enables adoption among members of all faiths, including (a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jains, or Sikhs, and (b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina, or Sikh and who is brought up as a member of the tribe, community, group, or family to which such parent belongs. Section 3(2) states that, notwithstanding anything contained in sub‑section (1), nothing contained in this Act shall apply to members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs. The provision enabling adoption was preceded by guidelines that facilitated inter‑country adoptions. These guidelines, initially pioneered in the judgment of the Supreme Court of India in Laxmi Kant Pandey v. Union of India, were accepted. Executive instructions filled the vacuum to some extent, but the limitation in law that prevented adoption of children from different faiths and backgrounds persisted. These limitations were finally overridden through the enactment of the Juvenile Justice Act, 2016., The Protection of Women from Domestic Violence Act, 2005 was enacted for the purpose of more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family. For the first time, a legal status was given to unmarried couples, which enabled women subjected to domestic violence to claim the right to residence, apart from other remedies provided under the Act. The culture of the Constitution has impelled the removal of barriers that previously existed. Traditional barriers based on social practice and stereotypes such as gender roles have, through express constitutional provisions like Articles 14, 15, and 16, which shaped legislation, and where these fell short, through judicial intervention, been overcome and in some cases eliminated., The role of the legislature has been to act as a codifier, and in many instances, to not merely enact or codify existing customs or practices but, wherever necessary, to intervene, and in furtherance of Article 14 and Article 15(3), to enact laws. Parliament has intervened and facilitated the creation of social status (marriage) through the Special Marriage Act, and enabled the creation of the institution of adoption, which was previously available only among certain communities. These and other legislative interventions are a result of state interest in reforms or furthering the interests of particular communities or persons. For these reasons, we do not particularly subscribe to the characterisation of democratising intimate zones as discussed in the learned Chief Justice's draft opinion. These outcomes were driven by enacted law; furthermore, there was state interest, which impelled regulation of such relationships, for instance, in ensuring the minimum age for marriage of girls. Likewise, there is state interest in regulating the kinds of relationships, i.e., prohibited degrees of relationship, that should be enacted as disqualifications to marriage. Marital offences such as desertion or cruelty (not confined to physical violence) are also grounds afforded to spouses to seek matrimonial remedies. The absence of such legislation would have meant that children of any age would continue to be married off, to the peril of the girl child's health and life; similarly, the codification and enactment of prohibited degrees of relationships were meant to further certain public health interests., III. Tracing the rights enjoyed by queer persons A. The trinity – autonomous choice, dignity and non‑discrimination i. Importance of personal choice under the Constitution. The journey of constitutional progression and the understanding of personal liberties, especially the right to life (Article 21) and equality (Article 14), has revealed multiple layers of prejudice, insensitivity, and indifference of the social order or other collectives regarding a person's freedom to exercise volition and free will in several matters. For instance, a woman's choice and bodily autonomy in exercising her reproductive rights has been acknowledged as a fundamental right integral to the right to life, in Suchita Srivastava & Ors. v. Chandigarh Administration, reiterated in Devika Biswas v. Union of India; X v. Principal Secretary, Health and Family Welfare Department; Independent Thought and other decisions., A person's autonomy to choose a spouse or life partner has been declared as integral to the fundamental right to life. In Asha Ranjan v. State of Bihar, the choice of a partner in life was held to be a legitimate constitutional right founded on individual choice, and the Court decried the concept of 'class honour' or 'group thinking' as barriers to the exercise of free choice. Similarly, In re (Gang‑Rape Ordered by Village Kangaroo Court in West Bengal) echoed the same idea and said that the State is duty‑bound to protect fundamental rights and that an inherent aspect of Article 21 of the Constitution is the freedom of choice in marriage. Shafin Jahan v. Asokan K.M. & Ors. brought home that expressing choice is in accord with the law and is an acceptance of individual identity., The nine‑judge decision in K.S. Puttaswamy v. Union of India, through Justice Dr. Chandrachud writing for himself and five other judges, explored the various nuances of the right to privacy and observed that personal choices governing a way of life are intrinsic to privacy., The choice of a woman to seek employment was upheld in Anuj Garg v. Hotel Association of India, where gender and age barriers were held unconstitutional. The choice of an individual patient has been held to be the exercise of a legal right to euthanasia, or to make decisions for a patient who is unconscious or incapacitated., Traditional barriers to temple entry based on gender have been challenged. Choice was also the central theme in Gian Devi v. Superintendent, Nari Niketan (1976) 3 SCC 234; Soni Gerry v. Gerry Douglas (2018) 2 SCC 197; and Nanda Kumar v. State of Kerala (2018) 16 SCC 602, as well as in the Supreme Court of India's ruling in Indian Young Lawyers Association & Ors. v. State of Kerala & Ors., ii. Dignity as a dimension of equality and all our liberties. The promise of the Preamble to the Constitution is of 'fraternity assuring power, conflicts, and oppression, denial of participation.' These occupied centre‑stage in the struggle for Swaraj. The founders realized that millennia‑old practices of marginalisation, oppression and exclusion produced humiliation and dehumanisation. The relation of self to other self, the dominant or powerful self to the oppressed self, ventures on the concept of equality. It thus seeks to eliminate untouchability, sex and caste‑based discrimination, and ensure dignity., Dignity is understood to mean the intrinsic worth of a person or the inherent value of a human being which entitles one to respect. The crucial aspect of substantive dignity lies in the State's role in providing basic conditions of life which enable individuals to fully realise the potential of intrinsic dignity by living a dignified life., In the Indian context, the idea of equality and dignity is to fulfil the constitutional commitment to be a republic based on democracy. In Francis Coralie Mullin v. Administrator, Union Territory of Delhi, the Supreme Court of India said that the right to life includes the right to live with human dignity. Prem Shankar Shukla v. Delhi Administration voiced the same idea, stating that the Preamble sets the humane tone of the Founding Document and highlights justice, equality, and the dignity of the individual. The Court held that Article 21 is the sanctuary of human values, prescribes fair procedure, and forbids barbarities, whether punitive or procedural., The Supreme Court of India, in Jeeja Ghosh v. Union of India, spoke about human dignity as a core value and that the right to life is given a purposeful meaning to include the right to live with dignity. The Court quoted from Aharon Barak, stating that human dignity has a central normative role and, as a constitutional value, is the factor that unites human rights into one whole. It ensures the normative unity of human rights expressed in different ways, serves as a basis for constitutional rights, an interpretive principle for determining the scope of constitutional rights, and plays an important role in determining the proportionality of a statute limiting a constitutional right., In Kesavananda Bharati v. State of Kerala, the value of dignity was underlined: the basic dignity of a person does not depend upon the codification of fundamental rights nor is such codification a prerequisite for a dignified way of living. This view has been adopted in several other decisions., The Supreme Court of India in K.S. Puttaswamy also recognized the value of dignity. The judgment in National Legal Services Authority v. Union of India & Ors. (NALSA) is significant; it underlines how dignity forms the basis of enjoyment of fundamental freedoms., In Navtej Johar, Justice Dipak Misra said that this is the essence of dignity and that it is the constitutional duty to allow the individual to behave and conduct himself or herself as he or she desires and to express oneself, of course, with the consent of the other. That is the right to choose without fear. It must be ingrained as a necessary prerequisite that consent is the real fulcrum of any sexual relationship., The constitutional emphasis on dignity is not without reason. Dr. B.R. Ambedkar and several of the Constitution framers meticulously sought to carve out, from the remnants of a socially repressive, hierarchical, and unequal society, a modern Constitution reflecting the aspirations of a confident people in a vibrant democracy. The society envisioned by the Constitution was to emerge from the darkness of caste and other forms of social prejudice and oppression into the light of the rule of law, social justice, and egalitarianism. To Ambedkar and other Constitution makers, political freedom (swaraj) meant precisely the freedom to shape the self, to make choices with dignity, and to break from historical suffering and humiliation. The drafting history of the equality code (Articles 14, 15, 16, 17, and 18) bears poignant testimony to this aspect., Dignity has both an internal and external aspect. Internally, dignity and privacy are intrinsically intertwined. Externally, dignity is multidimensional: it is a right to be treated as a fellow human, with all attributes of a human personality, and the right and expectation to be accorded due respect, treated with dignity and equal worth. Denial of these has a disproportionate impact on the individual; they are diminished in their own eyes and in the eyes of the world, resulting in a loss of self‑worth and moral worth. This is the vision of equality, social justice, welfare, and dignity articulated by the Constitution., iii. Equality, non‑discrimination and non‑exclusion. The equality code – Articles 14, 15, 16, and 17 (and Articles 23 and 24) – as referred to in various decisions of the Supreme Court of India, for instance as the Constitution's identity in M. Nagaraj v. Union of India, is not a mere statement of equality before law and equal protection of law. It contains specific injunctions prohibiting the State from discriminating on certain grounds, such as caste, race, sex, place of birth, religion, or any of them in Article 15; and caste, sex, religion, place of residence, descent, place of birth, or any of them in Article 16. The inclusion of these explicit prohibitions is as much a part of the equality code as the principle of equality endorsed in Article 14., The protected attribute of sex has been held to include sexual orientation and gender expression by the Supreme Court of India in NALSA and Navtej Johar & Ors. v. Union of India., The rationale for enacting proscribed grounds under Article 15 or 16 (or both) is the awareness of the Constitution makers that courts could use these markers to determine if reasonable classification was permissible. Hence, absent the prohibited ground of sex, gender could have been a plausible basis for an intelligible differentia. To prevent such classifications, specific proscribed grounds were enacted as injunctions against State action. The provisions and the equality code are therefore not only about the declaratory sweep of equality but also about the total prohibition against exclusion from participation in specified, enumerated activities., A closer look at Article 15, especially Article 15(2), shows that most of the proscribed grounds in Article 15(1) were engrafted to ensure that access to public resources – even those not maintained by the State but available to the public generally – could not be barred. This provision was made to right a historical wrong, i.e., the denial of access to the most deprived sections of society to basic resources such as water and food. The aim of the Constitution was to act as the ultimate leveller, ensuring that equality in practice and substance became the constitutional culture of the nation., Together with the affirmative action provisions – Articles 15(3) and (4), 16(4) and 16(5) – the Constitution intended to guarantee that not only facial discrimination was forbidden but also that existing inequalities were ultimately eradicated., The Supreme Court of India has, time and again, emphasized that non‑discrimination is essential for the enjoyment of all rights and freedoms of citizens, to realise their worth and potential., In the present debate, in NALSA, the Supreme Court of India took note of the Yogyakarta Principles, which state: 'The rights to equality and non‑discrimination – Everyone is entitled to enjoy all human rights without discrimination on the basis of sexual orientation or gender identity. Everyone is entitled to equality before the law and equal protection of the law without any such discrimination, whether or not the enjoyment of another human right is also affected. The law shall prohibit any such discrimination and guarantee all persons equal and effective protection against any such discrimination.', In this backdrop, the declaration of law in Navtej Johar has provided impetus for LGBTQ+ persons. Consensual queer relationships are not criminalised; their right to live their lives and exercise choice of sexual partners has been recognised. They are no longer to be treated as sub‑human by law. Yet, the petitioners allege that this is not sufficient, because merely being allowed to exist, even in the privacy of their homes, is inadequate. Discrimination and prejudice faced by the queer community have been acknowledged and discussed at length by the Supreme Court of India in NALSA and Navtej Johar. The draft opinion of the Chief Justice also highlights these aspects, which are briefly touched upon in the following section for completeness., The principle of non‑discrimination was explained in Rajive Raturi v. Union of India & Ors. (2017) SCR 827 as existing to ensure that all persons can equally enjoy and exercise all their rights and freedoms. Discrimination occurs due to arbitrary denial of opportunities for equal participation., The Constitution assures dignity; various fundamental rights guarantee a panoply of rights, including equality, non‑discrimination on enumerated grounds, freedom of speech and expression, freedom of association, the right to travel freely, the right to reside, the right to trade, commerce and business, personal liberty, and freedom to profess one's religion. Various rights not expressly stated or enumerated have been declared as facets of the right to life, such as the right to livelihood, access to healthcare, the right to shelter, and the right to a clean environment., Sexual relations between persons of the same sex were outlawed by Section 377 of the Indian Penal Code, which characterized such acts as unnatural sex, enacted an offence, and prescribed a sentence. This provision was read down by a Division Bench ruling of the Delhi High Court in Naz Foundation v. State (NCT of Delhi), which de‑criminalised consensual sex between persons of the same sex. However, Naz Foundation was overturned and its holding disapproved by the Supreme Court of India in Suresh Kumar Kushal v. Naz Foundation, resulting in the criminalisation of physical intimacy between consenting adults of the same sex. This had a chilling effect on the exercise of other freedoms by such couples, particularly in expressing even bare, decent affection, a position that prevailed until the later five‑judge bench decision in Navtej Johar., NALSA was a significant ruling regarding the rights of transgender persons. It was held that discrimination on the ground of sexual orientation or gender identity impairs equality before law, equal protection of law, and violates Article 14 of the Constitution of India. The Court, for the first time, recognized that transgender persons have the same rights and must be treated as full citizens, entitled to self‑expression of gender identity. In other words, every person's right to assert their gender is not limited by the sex assigned at birth. The Court unequivocally declared that the right of transgender persons to non‑discrimination is equally contained as it is for other citizens. The Court also acknowledged the right to self‑determination of one's gender as intrinsic to Article 21 of the Constitution. It further declared that the fundamental right to live with dignity under Article 21 extends to equal access to all facilities to achieve full potential as human beings, such as education, social assimilation, access to public spaces, and employment opportunities. The Court expressly alluded to their rights under Articles 15 and 16 of the Constitution of India and was cognizant of the acute form of discrimination resulting in their degradation., The Court's intervention in the oft‑cited decisions on behalf of petitioners has been to protect citizens or those approaching the courts against threats of violence or creation of barriers in the exercise of free choice, such as in Shakti Vahini v. Union of India, Lata Singh v. State of Uttar Pradesh, Shafin Jahan, and Laxmibai Chandragiri v. State of Karnataka. These decisions were based on the State's duty to protect citizens and enable the exercise of their individual choice in the face of external threats. Other decisions, such as Joseph Shine v. Union of India, Navtej Johar, and Independent Thought, were instances where specific provisions that criminalised or made exceptions to criminal behaviour were struck down or read down in enforcement of fundamental rights, i.e., Articles 14, 15(3), and 21. Along the way, K.S. Puttaswamy articulated the broadest right to privacy, which embraces the right to choose a life partner and to lead one's life free from external barriers., C. Is there a fundamental right to marry?
id_1381	16	Supreme Court of India has recognized that marriage is a social institution. As elaborated in Part I, marriage existed and exists historically and chronologically in all senses because people married before the rise of the state as a concept. Therefore marriage as an institution is prior to the state; it precedes it. The status is not one conferred by the state (unlike the licence regime in the United States). This implies that the marriage structure exists regardless of the state, which can utilise or accommodate it but cannot abolish it as a concept. Under this view, terms of marriage are set, to a large extent, independently of the state. Its source is external to the state and defines the boundaries of marriage. This implies that state power to regulate marriage does not sit easily with the idea of marriage as a fundamental right. In attempting to analyse the claim to a fundamental right to marry, there are primarily two competing claims about the nature of marriage: one being that the state should exercise more control over marriage to support and protect traditional purposes and perceptions, and the other that each individual should have the right to define marriage for themselves and state involvement should be minimal., If indeed there is a right to marry unless it is elevated to a right akin to Articles 17, 23, and 24, which apply to both state and non‑state agencies and actors, it cannot be operationalized. These provisions, most emphatically, create positive obligations; likewise Articles 15(3), 15(4) and 15(6), as well as Articles 16(4) and 16(6) highlight state interest in creating conditions to further the goal of non‑discrimination. Yet previous decisions of the Supreme Court of India have carefully held such provisions to enable the state and, in a sense, oblige it to take measures, but have ruled out court‑mandated policies and laws. In our considered opinion, this is not a case where the court can depart from such rule and require the state to create a social or legal status., What is being asked for by the petitioners is state intervention in enabling marriage between queer or non‑heterosexual couples. Civil marriage or recognition of any such relationship, with such status, cannot exist in the absence of statute. The demand, hence, is that of a right of access to a publicly created and administered institution. There is a paradox that the creation of the institution depends on state action, which is sought to be compelled through the agency of this court., Most of the precedents cited contain discussions on how the institution of marriage involves issues of basic importance. Many decisions, including Obergefell v. Hodges, recall tradition to underline that marriage is of utmost significance and underlines the importance of the commitment of two individuals towards each other as a foundational relationship of society. Traditions of marriage per se may not support the basis of recognition of marital relationship between non‑heterosexual couples. Many decisions by United States courts have underlined the rationale for declaring the right to marry a fundamental right as essential to the orderly pursuit of happiness by free persons. This strand of reasoning is apparent from Loving v. Virginia to Obergefell., This is not sound, at least as applied to state licensing of marriage (as in the United States), which is what civil marriage is. The fundamental importance of marriage remains that it is based on personal preference and confers social status. Importance of something to an individual does not per se justify considering it a fundamental right, even if that preference enjoys popular acceptance or support. Various claims such as education, internet access, or essential medication being fundamental rights cannot be enforceable rights that courts can compel the state to provide. Such recognition can be achieved only by enacted law., All decisions relied on by the petitioners—K.S. Puttaswamy, Navtej Johar, Shakti Vahini and Deepika Singh v. Central Administrative Tribunal—contain broad observations with respect to an individual's choice of partner and non‑conventional relationships. However, there cannot be a per se assertion that an unqualified right to marry flows from the provisions of Part III. We agree with the conclusion of the learned Chief Justice that the Constitution does not expressly recognise a right to marry., The conclusion arrived at by the learned Chief Justice is that while there is no express fundamental right to marry, there is a right or freedom to enter into a union, as spelt out in Navtej Johar, K.S. Puttaswamy, NALSA, Shakti Vahini, Shafin Jahan, etc., and that, having regard to our constitutional values, which entail respect for the choice of a person whether or when to enter into marriage and the right to choose a marital partner, this right to an abiding co‑habitational relationship can be traced to the provisions of Article 19(1)(a), (c), and (e), Article 21 and Article 25., While we agree that there is a right—characterised as a right to relationship—to avoid confusion we recognise it to fall within Article 21, as already recognised in the aforesaid cases. The right to relationship includes the right to choose a partner, cohabit and enjoy physical intimacy, to live the way they wish, and other rights that flow from the right to privacy, autonomy and dignity. They are, like all citizens, entitled to live freely and express this choice undisturbed in society. Whenever their right to enjoyment of such relationship is under threat of violence, the state is bound to extend necessary protection. This is a natural consequence of the Supreme Court of India's judgments in Navtej Johar, K.S. Puttaswamy, Shafin Jahan and Shakti Vahini., The learned Chief Justice, in a detailed discussion of the goal of self‑development, rights under Article 19 (including freedom of speech and expression, and to form intimate associations, to settle in any part of India), Article 21 and Article 25, arrives at the conclusion that the right to union can be traced to these express provisions, which in turn enrich this right. The positive postulate of fundamental rights does not, in our opinion, place a positive obligation on the State to accord recognition to such relationships or unions., The conception of fundamental rights in terms of their negative and positive content requires no citation. However, the extent to which this positive obligation may reach is where reasoning arrives at a fork in the road. Every fundamental right is not enjoyed by an individual to the same degree of absoluteness. For example, Article 19 has a clear stipulation of reasonable restrictions for each freedom; Articles 15 and 16 contain negative injunctions on the State against discrimination, within which substantive equality is baked in and requiring the State to step in or facilitate; Article 25 is subject to other fundamental rights. A discussion of Article 21 elucidates this point. Even while tracing numerous unenumerated rights such as the right to a clean environment or right to shelter, the courts have been circumspect in how these can be enforced., When the law is silent and leaves parties to express choice, Article 19(1)(a) does not oblige the State to enact a law or frame a regulation that enables facilitation of that expression. Judgments such as Sakal Papers, Bennet Coleman and Express Newspapers were based on the effect of laws or policies. In the absence of a legal framework enabling citizens to form a particular kind of association, the court could not validly create a regime enabling recognition or regulation of such associations. Similarly, the court cannot be asked to create a road to enforce the right to travel under Article 19(1)(d) or to create a housing scheme to enforce Article 19(1)(e)., History or traditions may not be the only methods to trace constitutional values, yet the court cannot stray too far from the express provisions and the manner in which they are cast. In the case of free speech and expression, right to association and the rights spelt out in Article 25, the core content of these are freedoms directed against state action. To locate an entitlement that leads to a positive obligation to facilitate the exercise of free speech by mandating a parliamentary law would be a self‑evident negative., There is no difficulty about the right of two consenting persons to decide to live together, cohabit and create their unique idea of a home, unconstrained by what others may say. That is the natural sequitur to K.S. Puttaswamy and Navtej Johar. Conduct previously criminalised is now permissible. The liberative effect of Section 377 being read down is that two individuals, regardless of sexual orientation, are enabled to live together with dignity and are protected from violence. Therefore, the right to be left alone, the right to exercise choice, the right to dignity and to live one's life with the person of one's choice is an intrinsic and essential feature of Article 21., The idea that one right can lead to other rights emanating from it has been conclusively rejected by the Supreme Court of India in All India Bank Employees Association v. National Industrial Tribunal. That decision was quoted with approval in Maneka Gandhi v. Union of India, where the Court rejected the theory of a series of concentric circles of concomitant rights. The right to go abroad, for example, cannot be treated as part of the right to carry on trade, business, profession or calling guaranteed under Article 19(1)(g)., While two‑judge bench decisions have affirmed an interconnectedness of various fundamental rights, their manifestations under Article 19 and the distinct grounds on which they can be circumscribed set each freedom apart. The right to protest in the form of a procession is subject to reasonable restrictions in the interests of public order, decency or morality. The same test of reasonableness applies to other freedoms. Thus, every right enumerated in Article 19 and Article 25 can be exercised freely without hindrance, but the assertion of the right in the face of state action becomes the subject of court scrutiny., The right to freedom of conscience is also subject to other provisions of Part III and any measure in the interests of public order or morality. It is open to all to exhibit and propagate their beliefs for the edification of others, subject to State regulation to secure order, public health and morals. The state on occasions has intervened to promote social welfare and reforms; the Supreme Court of India has intervened when state action was inconsistent with the right to equality and dignity., We do not agree with the learned Chief Justice who has underlined that the positive postulate of various rights leads to the conclusion that all persons, including two consenting adult queer persons, have an entitlement to enter into a union or an abiding cohabitational relationship which the State is under an obligation to recognise. There is no recorded instance where the court was asked to facilitate the creation of a social institution like in the present case., Observations from the judgment of Justice D.Y. Chandrachud in Navtej Johar state that social institutions must be arranged so that individuals have the freedom to enter into relationships untrammeled by binary notions of sex and gender and receive institutional recognition to perfect their relationships. The law provides legitimacy for social institutions. In a democratic framework governed by the rule of law, the law must be consistent with the constitutional values of liberty, dignity and autonomy. These observations underscored the need to respect and give worth to the choice of queer couples. While the de‑criminalising impact of the decisions is undoubted, the broader observations obliging social institutions to accommodate and facilitate the exercise of choice beyond the right to privacy were not necessary and constitute obiter dicta.
id_1381	17	That the State should or ought to order such social institutions is different from a direction issued by the Supreme Court of India, which they must carry out; the latter is what we take exception to and place our reservations against., Therefore, even if we were to, for argument’s sake, recognise an entitlement under the Constitution to enter into an abiding cohabitation relationship or union, it cannot lead to a claim for an institution. There are almost intractable difficulties in creating, through judicial diktat, a civil right to marry or a civil union of the kind sought by the petitioners. Ordering a social institution or rearranging existing social structures by creating an entirely new parallel framework for non‑heterosexual couples would require conception of an entirely different code and a new universe of rights and obligations. This would entail fashioning a regime of state registration of marriage between non‑heterosexual couples, the conditions for a valid matrimonial relationship amongst them, spelling out eligibility conditions such as minimum age, relationships which fall within prohibited degrees, grounds for divorce, right to maintenance, alimony, etc., With due respect, we are unable to agree with the conclusions of the Chief Justice of India regarding tracing the right to enter into or form unions from the right to freedom of speech and expression (Article 19(1)(a)), the right to form associations (Article 19(1)(c)), along with Article 21 and any corresponding positive obligation. It is reiterated that all queer persons have the right to relationship and choice of partner, cohabit and live together as an integral part of choice linked to their privacy and dignity. No one has contested that two queer partners have the rights enumerated under Article 19(1)(a), (c), and (d), or the right to conscience under Article 25. The elaboration of these rights to say that the exercise of choice in such relationships renders these rights meaningful, and that the State is obliged to recognise a bouquet of entitlements flowing from such an abiding relationship, is not called for. We therefore respectfully disagree with that part of the Chief Justice’s reasoning which forms the basis for some of the final conclusions and directions recorded in his draft judgment., The petitioners complained that provisions of the Special Marriage Act, inasmuch as they exclude or do not provide for marriage of non‑heterosexual couples, are discriminatory because the classification made in its various provisions is heteronormative, thus discriminating against non‑heterosexual couples. This exclusion is the basis of their challenge., Hostile classification, which results in exclusion from the benefits of a statute or policy, is based on the understanding that where equals are treated differently without any reasonable basis, as held in D.S. Nakara v. Union of India: the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those left out, and that differentia must have a rational nexus to the object sought to be achieved by the statute. There must be a causal connection between the basis of classification and the object of the statute. An executive action can be sustained only if the twin tests of reasonable classification and a rational principle related to the object sought to be achieved are satisfied., The intelligible differentia on which classification is drawn distinguishes objects, persons, or conditions for legislative or executive policy. The premise of classification is to discriminate; the theory of permissible classification rests on the basis for differentiation and its relation to the object of the measure or law. Permissible classification should result in valid differentiation but crosses the line when it has a discriminatory effect by excluding persons, objects, or things that otherwise form part of the included group. In Kedar Nath Bajoria v. State of West Bengal, it was explained that Article 14 does not require all laws to be general in character and universal in application, nor does it prevent the State from distinguishing and classifying persons or things for legislative purposes. Simply put, legislative classification must not be arbitrary but should be based on an intelligible principle having a reasonable relation to the object the legislature seeks to attain., In Chandan Banerjee v. Krishna Prasad Ghosh, the Supreme Court of India explained the principles applicable to determine whether classification by any law or policy can be upheld. The principles that emerge can be summarised as follows: (i) Classification between persons must not produce artificial inequalities; the classification must be founded on a reasonable basis and must bear a nexus to the object and purpose sought to be achieved to satisfy Articles 14 and 16. (ii) Judicial review in matters of classification is limited to determining whether the classification is reasonable and bears a nexus to the object sought to be achieved. Courts cannot indulge in a mathematical evaluation of the basis of classification or replace the wisdom of the legislature with their own. In Transport & Dock Workers Union v. Mumbai Port Trust, the Court explained that differential treatment may not always result in discrimination and it violates Article 14 only when there is no conceivable reasonable basis for the differentiation., The differentiation or classification must be based on the object or end sought to be achieved, as highlighted in Union of India v. M.V. Valliappan, where the Court held that if differentiation has a rational nexus with the object sought to be achieved by a particular provision, then such differentiation is not discriminatory and does not violate Article 14. Earlier, in State of J&K v. Triloki Nath Khosa, the Court ruled that the object to be achieved ought not to be a mere pretense for indiscriminate imposition of inequalities and the classification should not be characterized as arbitrary or absurd., The discussion on equality and the limits of permissible classification was summarized by the seven‑judge bench in In Re the Special Courts Bill, 1978. The Court observed that the State, in exercising its governmental power, necessarily makes laws that operate differently on different groups or classes of persons to attain particular ends and must possess large powers of distinguishing and classifying persons or things to be subjected to such laws. The constitutional command to afford equal protection of laws does not require an exact scientific exclusion or inclusion of persons; courts should not insist on delusive exactness or apply doctrinaire tests. Classification is justified if it is not palpably arbitrary. The principle underlying Article 14 is that all persons similarly circumstanced shall be treated alike in privileges and liabilities. The law may create classes according to societal needs, but the classification should never be arbitrary, artificial, or evasive. It must be rational, based on qualities found in all persons grouped together and not in others, and those qualities must have a reasonable relation to the object of the legislation. Two conditions must be fulfilled: (1) the classification must be founded on an intelligible differentia distinguishing those grouped together from others, and (2) that differentia must have a rational relation to the object sought to be achieved. The differentia and the object of the Act are distinct, but a nexus between them is necessary. While Article 14 forbids class discrimination by arbitrarily conferring privileges or imposing liabilities, it does not forbid classification for legislation provided it is not arbitrary. Classification necessarily implies a distinction between persons classified and those not, casting duties and burdens different from those on the general public. Inequality per se does not determine constitutionality; the differentiation must be examined in light of the object sought to be achieved by the enactment., If it is assumed, as the petitioners argue, that the classification is suspect because non‑heterosexual couples are not provided the facility of marriage, yet such classification is not per se discriminatory. This aspect was highlighted by the Supreme Court of India in Ambica Mills: since the classification does not include all who are similarly situated with respect to the purpose of the law, it might appear at first blush unreasonable. However, the Court has recognised the real difficulties legislatures face, arising from the legislative process and societal changes, and has refused to strike down indiscriminately all legislation embodying classificatory inequality., In an earlier decision, the Supreme Court of India upheld the tax imposed upon joint families in Kerala based on Marumakkattayam law. The law imposed an expenditure tax on those professing the Marumakkattayam system and omitted to include Mapillas (non‑Hindus) who also followed that system. The Court held that such under‑inclusion did not attract the vice of discrimination, observing that the mere fact that the law could have been extended to another class of persons with similar characteristics is not a ground for striking down the law., The question of some categories being left out when new legislation is introduced was addressed in Ajoy Kumar Banerjee & Ors. v. Union of India, where it was held that Article 14 does not prevent the legislature from introducing a reform by applying legislation to certain institutions, objects, or areas according to the exigency of the situation, and that classification can be sustained on historical or administrative reasons or a piecemeal method of introducing reforms. The law need not apply universally to all persons. A law can be sustained if it deals equally with people of a well‑defined class, such as employees of insurance companies, and is not open to a charge of denial of equal protection because it does not apply to other persons. These judgments underline that exclusion or under‑inclusion, per se, cannot be characterised as discriminatory unless the excluded category belongs to the same class as the included class., The Statement of Objects and Reasons of the Special Marriage Act reads as follows: This Bill revises and seeks to replace the Special Marriage Act of 1872 to provide a special form of marriage that can be taken advantage of by any person in India and all Indian nationals abroad, irrespective of the faith either party may profess. The parties may observe any ceremonies for the solemnisation of their marriage, but certain formalities are prescribed before the marriage can be registered by marriage officers. For the benefit of Indian citizens abroad, the Bill provides for the appointment of Diplomatic and Consular Officers as Marriage Officers for solemnising and registering marriages between citizens of India in a foreign country. It also seeks to permit persons already married under other forms of marriage to register their marriages under this Act and thereby avail themselves of its provisions. The Bill is drafted generally on the lines of the existing Special Marriage Act of 1872, and the notes on clauses attached explain some of the changes made in the Bill in greater detail., The Statement of Objects and Reasons of the Special Marriage Act clearly suggests that the sole reason for the enactment of the Act was to replace the earlier colonial‑era law and provide certain new provisions; it does not refer to any specific object sought to be achieved or the reasons that necessitated the new Act other than that it was meant to facilitate marriage between persons professing different faiths., If one looks at the enacted provisions, especially Sections 19‑21, 21A, 24, 25, 27, 31, 37 and 38 of the Special Marriage Act, there can be no doubt that the sole intention was to enable marriage, as understood then for heterosexual couples, of persons professing or belonging to different faiths, an option previously available subject to various limitations. There was no intention to exclude non‑heterosexual couples because at that time even consensual physical intimacy of such persons was outlawed by Section 377 of the Indian Penal Code. While the Act sought to provide an avenue for marriages that did not enjoy societal support or custom, it would be a stretch to say that it included same‑sex marriages. Therefore, the challenge to the constitutionality of the statute must fail. It is settled by decisions of the Court that as long as an objective is clearly discernible, it cannot be attacked merely because it does not make a better classification. The need for a law or legal regime that provides or facilitates matrimony of queer couples is similar to the need to facilitate inter‑faith marriages, which drove Parliament to enact the Special Marriage Act., The next question urged is that the passage of time has rendered the exclusion of queer couples from the benefit of the Special Marriage Act discriminatory. This argument is based on the Court’s reasoning that with the passage of time, a classification once valid could become irrelevant and discriminatory. The first such decision was Motor and General Traders v. State of Andhra Pradesh, wherein a provision of the state rent control legislation that exempted premises constructed after 26‑08‑1957 was challenged. The idea was to provide impetus to construction of houses; however, the long passage of time resulted in two classes of tenants—those residing in older premises covered by the law and those in later‑constructed premises. The Court held that the continued operation of such exemption rendered it unconstitutional because there was no justification for the continuance of the benefit to a class of persons without any rational basis, and the adverse effects caused more harm to society than anticipated. What was justifiable during a short period turned into hostile discrimination after nearly a quarter of a century., The second response to the contention is that mere lapse of time does not lend constitutionality to a provision that is otherwise bad. Almost identically, in Rattan Arya v. State of Tamil Nadu, the validity of Section 30(ii) of the Tamil Nadu Buildings (Lease and Rent) Control Act, 1960 was challenged. The Court held that the provision exempted tenants of residential buildings paying monthly rent of more than Rs 400 from the protection of the Rent Control Act, whereas no such restriction was imposed on tenants of non‑residential buildings. The Court upheld the challenge, holding that a provision perfectly valid at the commencement of the Act could be challenged later on the ground of unconstitutionality and struck down. What was once valid legislation may, over time, become discriminatory and liable to challenge as violative of Article 14., The judgment cited by the petitioners, Satyawati Sharma v. Union of India, also dealt with rent legislation that differentiated between residential and non‑residential buildings regarding the remedy of eviction on the ground of bona‑fide requirement. In all the judgments cited by the petitioners, the Court was able to discern that a classification made at an earlier point in time had lost its relevance and operated in a discriminatory manner. In some circumstances, rather than declaring the entire law void, the Court read down the relevant provision to the extent the statute could be so read., In the present case, the petitioners’ arguments for reading down provisions of the Special Marriage Act are insubstantial. The original rationale for the Special Marriage Act was to facilitate inter‑faith marriages, and that reason is as valid today as it was at the time of its enactment. It cannot be condemned on the ground of irrelevance due to the passage of time. The classification was primarily not between heterosexual and non‑heterosexual couples, but between heterosexual couples of differing faiths. All its provisions are geared to provide a framework to govern the solemnisation or registration of marital relationships, replicating the status conferred by different personal laws. Since there was no single law applicable to couples professing differing religions, the Special Marriage Act created governing norms such as procedure, minimum age, prohibited degrees of relationship, and grounds of divorce. The relevance of the Special Marriage Act has increased with growing awareness and the exercise of choice by intending spouses belonging to different faiths. It cannot be said that the exclusion of non‑heterosexual couples has caused the Act to lose its rationale or become discriminatory. If the legislative policy is clear and a discretion is vested upon administrators to make selective application of the law to certain classes, the statute itself cannot be condemned as discriminatory. Without a finding of such discrimination, the Court cannot invoke the doctrine of reading down., We therefore agree with the reasoning elaborated by Justice Dr. Dhananjaya Y. Chandrachud that the challenge to the Special Marriage Act fails., The provisions of the Special Marriage Act are incapable of being read down or interpreted in the manner suggested by the petitioners. We have supplemented the Chief Justice’s conclusions with further reasoning briefly below., The petitioners have sought to persuade the Supreme Court of India to interpret the provisions of the Special Marriage Act in a manner that accommodates non‑heterosexual couples and facilitates such marriages. Their arguments centered on reading specific provisions—Section 2(b) read with Part I (for a male) and Part II (for a female) concerning degrees of prohibited relationships, Section 4(c), Sections 12, 15, 22, 23, 27(1), 27(1A) (special ground of divorce for wife), 31(1)(iiia) and (2) (special provision for jurisdiction in case of proceeding for the wife), Sections 36 and 37 (alimony for the wife), and Section 44 (bigamy)—which present a dominant heteronormative content. They argue that the Court should adopt a purposive construction of the provisions of the Special Marriage Act and interpret them in light of previous decisions in Dharani Sugars and Chemicals Ltd. v. Union of India and X v. Principal Secretary., In Dharani Sugars, the challenge was against a new policy introduced by the Reserve Bank of India. The petitioners contended that there was no authorization under the RBI Act to frame the impugned policy. Although the Court acknowledged that new facts can influence the interpretation of existing law, it ultimately upheld the policy based on existing provisions that empowered the RBI to issue such policies. A careful examination of the judgment reveals that, unless a contrary intention appears, an interpretation should be given to the words used to take in new facts and situations if the words are capable of comprehending them. However, the Court also noted that this doctrine does not permit construing the language of an old statute to mean something conceptually different from what contemporary evidence shows Parliament intended., In X v. Principal Secretary, while reading down the exclusion of unmarried women from the benefit of the Medical Termination of Pregnancy Act, 1971, the Court also relied on Dharani Sugars to invoke the principle that a statute always speaks. Noting that the Act and its amendment were intended to enable women to terminate unwanted pregnancies for manifold reasons, the Court held that such exclusion was arbitrary and discriminatory. The Court further relied on Badshah v. Urmila Badshah Godse, which held that change in law precedes societal change and is intended to stimulate it, and that responsiveness to change in social reality is the life of the law. Similarly, in All Kerala Online Lottery Dealers Association v. State of Kerala, the Court referred to State v. S.J. Choudhary, observing that, although the language of an Act is necessarily embedded in its own time, it must be construed in accordance with the need to treat it as current law., The petitioners also relied on the interpretation of the Court in Githa Hariharan v. Union of India, wherein the Court construed the word 'after' in Section 6(a) of the Hindu Minority and Guardianship Act, 1956 to mean 'in the absence of the father, whether temporary or permanent, or total apathy of the father towards the child, or inability of the father by reason of ailment or otherwise,' thereby saving it from discrimination. Reliance was placed on Association of Old Settlers of Sikkim & Ors. v. Union of India, where an exemption provision discriminated against Sikkimese women who had their names registered in the Register of Sikkim subjects, married non‑Sikkimese on or after 1 April 2008, and excluded them from the benefit. The Court held such discrimination violative of equality under Article 14. In Independent Thought, the Court invalidated as discriminatory a provision that permitted sexual relations between a man and a young woman married to him above the age of 15 years, resulting in a classification that defined sex with any woman below 18 years, irrespective of consent, as rape., The petitioners relied on the principle of purposive interpretation to urge a gender‑neutral interpretation that includes non‑heterosexual couples. The Court, in S.R. Chaudhuri v. State of Punjab, remarked that the words used may be general in terms but their full import and true meaning must be appreciated considering the context in which they are used and the purpose they seek to achieve., Ahron Barrack, in his treatise, stated that purposive interpretation is based on three components: language, purpose, and discretion. Language shapes the range of semantic possibilities within which the interpreter acts as a linguist. Once the interpreter defines the range, he or she chooses the legal meaning of the text from among the express or implied semantic possibilities. The semantic component thus sets the limits of interpretation by restricting the interpreter to a legal meaning that the text can bear in its public or private language.
id_1381	18	Supreme Court of India has also held that there can be occasions when words may be read in a particular manner, if it is sure that the draftsman would have wished it to be so, given the nature of the expressions, and, at the same time, indicated the limits for that principle, while quoting from the treatise Principles of Statutory Interpretation by G.P. Singh, in Ebix Singapore Private Limited and Ors. v. Committee of Creditors of Educomp Solutions Ltd & Ors.: A departure from the rule of literal construction may be legitimate so as to avoid any part of the statute becoming meaningless. Words may also be read to give effect to the intention of the Legislature which is apparent from the Act read as a whole. Application of the mischief rule or purposive construction may also enable reading of words by implication when there is no doubt about the purpose which Parliament intended to achieve. But before any words are read to repair an omission in the Act, it should be possible to state with certainty that these or similar words would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law., Other decisions have endorsed this line of reasoning. The objects of a statute acquire primacy while interpreting its provisions, if the need so arises. Therefore, in interpretation of any statute or provision, Supreme Court of India, long ago, in Workmen of Dimakuchi Estate v. Management of Dimakuchi Tea Estate underlined that where there are doubts about the meaning of a provision, they are to be understood in the sense which best harmonises with the subject of the enactment and that popular meanings, or strict grammatical import, may yield to the subject or the occasion on which they are used, and the object to be attained. This object‑based interpretation was adopted in several decisions., Supreme Court of India emphasized in Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. & Ors. that interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. The interpretation that makes the textual interpretation match the contextual is best., In M. Nizamuddin v. Chemplast Sanmar Ltd & Ors. (2010) 4 Supreme Court Cases 240, it was observed: Purposive construction has often been employed to avoid a lacuna and to suppress the mischief and advance the remedy. It is a settled rule that if the language used is capable of bearing more than one construction and if a construction results in absurdity or anomaly, such construction has to be rejected and preference should be given to a construction that brings it into harmony with its purpose and avoids absurdity or anomaly, as it may always be presumed that while employing a particular language in the provision absurdity or anomaly was never intended., Girodhar G. Yadalam v. Commissioner of Wealth Tax & Ors. [2015] 15 Supreme Court Reports 543; K.H. Nazar v. Mathew K. Jacob, (2020) 14 Supreme Court Cases 126, state that in interpreting a statute the problem or mischief that the statute was designed to remedy should first be identified and then a construction that suppresses the problem and advances the remedy should be adopted., In New India Assurance Co. Ltd. v. Nusli Neville Wadia [2007] 13 Supreme Court Reports 598, this Court explained purposive interpretation to mean one which enables a superior court to interpret a statute in a reasonable manner; the court must place itself in the chair of a reasonable legislator. Thus, the rules of purposive construction have to be resorted to which would require the construction of the Act in such a manner so as to see that the object of the Act is fulfilled., In Bipinchandra Parshottamdas Patel v. State of Gujarat [2003 (4) Supreme Court Cases 642], a provision enabling the suspension of an elected official of a municipality, under detention during trial, was held to include detention during investigation, having regard to the object or the mischief sought to be addressed by the law., In Bank of India v. Vijay Transport & Ors., the Court dealt with the plea that a literal interpretation is not always the only interpretation of a provision in a statute and that the Court has to look at the setting in which the words are used and the circumstances in which the law came to be passed to decide whether there is something implicit behind the words used which controls the literal meaning of such words., The five‑judge decision of Supreme Court of India in Central Bank of India v. Ravindra held: Ordinarily, a word or expression used at several places in one enactment should be assigned the same meaning so as to avoid a head‑on clash between two meanings assigned to the same word or expression occurring at two places in the same enactment. It should not be lightly assumed that Parliament gave with one hand what it took away with the other. That construction is to be rejected which will introduce uncertainty, friction or confusion into the working of the system. While embarking upon interpretation of words and expressions used in a statute it is possible to find a situation when the same word or expression may have somewhat different meaning at different places depending on the subject or context. This is however an exception which can be resorted to only in the event of repugnancy in the subject or context being spelled out. It has been the consistent view of the Supreme Court of India that when the legislature used the same word or expression in different parts of the same section or statute, there is a presumption that the word is used in the same sense throughout. The House of Lords in Farrell v. Alexander held that where the draftsman uses the same word or phrase in similar contexts, he must be presumed to intend it in each place to bear the same meaning., The objects that a statute seeks to achieve are to be gleaned not merely from a few expressions in the statement of objects and reasons, but also from the enacted provisions. The setting in which words are placed may be taken into consideration, but that does not mean that even though the words convey a clear meaning, a different interpretation should be given because of the setting. The Court has not ruled that the setting is the only and surest method of interpretation., The provisions and the objects of the Special Marriage Act (SMA) clearly point to the circumstance that Parliament intended only one kind of couples, i.e., heterosexual couples belonging to different faiths, to be given the facility of a civil marriage. Section 4 (conditions relating to solemnisation of special marriages) contemplates marriages between a man and a woman. To read the SMA in any other manner would be contrary to established principles of statutory interpretation. It is also not permissible for the Supreme Court of India to read up and substitute the words 'any two persons' to refer to a marriage between non‑heterosexual couples., Gender‑neutral interpretation, while seemingly progressive, may not be equitable at times and can result in women being exposed to unintended vulnerability, especially when genuine attempts are made to achieve a balance in a social order that traditionally favoured cis‑heterosexual men. The purpose of terms like wife, husband, man and woman in marriage laws and other laws on sexual violence and harassment is to protect a socially marginalised demographic. For instance, women facing violence by their partner have a right to seek recourse under the Domestic Violence Act, which assures that they are safeguarded and provided relief against such injustice. Provisions in the SMA for alimony and maintenance (Sections 36 and 37) confer rights to women; certain grounds of divorce (conviction of husband for bigamy, rape) entitle the wife additional grounds (Section 27) to seek divorce. Other provisions such as Section 2(b) read with Part I (for a male) and Part II (for a female) enact separate degrees of prohibited relationships; Section 4(c) uses the terms husband and wife; Sections 12, 15, 22, 23, 27(1), Section 31(1)(iiia) and (2) (special provision for jurisdiction in case of proceeding for the wife), Sections 36 and 37 provide for maintenance and alimony for the wife; Section 44 provides punishment of bigamy. The general pattern of these provisions, even if Section 4 of the SMA were read in gender‑neutral terms, would lead to anomalous results, rendering the SMA unworkable., If provisions of the SMA are construed as gender‑neutral (such as 'persons' or 'spouses' in substitution of wife and husband) as the petitioners propose, it would be possible for a cis‑woman's husband to file a case or create a narrative to manipulate the situation. Gender‑neutral interpretation of existing laws would complicate an already exhausting path to justice for women and leave room for the perpetrator to victimise them. A law is not merely meant to look good on paper; it is an effective tool to remedy a perceived injustice, created and fought for by women, and cannot be diluted by an interpretive sleight., Supreme Court of India stated in Delhi Transport Corporation v. Delhi Transport Corporation Mazdoor Congress that when a provision is cast in definite and unambiguous language and its intention is clear, it is not permissible either to mend or bend it even if such recasting is in accord with good reason and conscience. In such circumstances, the Court cannot remake the statute; its only duty is to strike it down and leave it to the legislature to amend it. Similarly, in Cellular Operators Association of India v. Telecom Regulatory Authority of India, the Court applied the rule of Delhi Transport Corporation and held that the construction suggested would lead the Court to add something to the provision which does not exist, which would be nothing short of the Court itself legislating and therefore impermissible., There is no rule by which a word or group of words in one provision can have two different meanings. The effect of the petitioners' argument would be to say that generally, provisions of the SMA should be read in a gender‑neutral manner (spouse for wife and husband; persons instead of male and female, etc.). While it could in theory be possible to read such provisions in the manner suggested, their impact on specific provisions such as the separate lists for wives and husbands for purposes of age, determining prohibited degrees of relationships, and remedies such as divorce and maintenance, leads to unworkable results. Most importantly, the Supreme Court of India cannot look at a text containing words with two optional meanings in the same provision., With regard to the Foreign Marriage Act (FMA), the petitioners sought that certain conditions and provisions be read in gender‑neutral terms to enable same‑sex marriage. The FMA is a secular legislation wherein Section 4 states that a marriage between parties may be solemnised under this Act, provided that at least one of the two parties is a citizen of India. However, the terms bride and bridegroom are used in Section 4 (relating to the age of the parties at the time of solemnisation), the Third and Fourth Schedule (which prescribe the declarations by both parties and certification of marriage). The conditions for such marriages, under Section 4(1)(c) of the FMA, specifically require the parties to be a bride and a bridegroom, i.e., it is gendered in nature. Furthermore, the terms husband and wife are used in Sections 13 and 18 in relation to the solemnisation of marriage and provisions where matrimonial reliefs (as under the SMA) are available under the FMA. The petitioners' prayer that the Supreme Court of India read the references to husband or wife or spouse in the same manner as discussed in relation to the SMA is unsustainable., The Supreme Court of India agrees with the reasoning that our courts should exercise caution when relying on foreign jurisdictions such as Ghaidan, Fourie, and other precedents. We should be mindful of the distinct contextual framework within which those decisions were given., The words of the statutes have to be read, taking into account the fabric of concepts, rights, obligations and remedies which they create. Removing or de‑contextualising provisions from their setting and purposively construing some of them cannot be resorted to, even in the case of the SMA., The object‑based test favored and applied in A.K. Gopalan was discarded decisively by the eleven‑judge Bench in R.C. Cooper. The true test is that it is not the object of the authority making the law that determines the protection; it is the effect of the law and of the action upon the right which attracts the jurisdiction of the Supreme Court of India to grant relief. If this is the true view, then in determining the impact of State action upon constitutional guarantees which are fundamental, the extent of protection against impairment of a fundamental right is determined not by the object of the Legislature nor by the form of the action, but by its direct operation upon the individual's rights. This line of reasoning was applied and commended in Maneka Gandhi; it is now an intrinsic part of constitutional lore., In recent times, the Supreme Court of India has applied, in relation to claims of discrimination, the test of indirect discrimination. This dimension was explained in Lt. Col. Nitisha v. Union of India: the doctrine of indirect discrimination is founded on the insight that discrimination can often be a function, not of conscious design or malicious intent, but unconscious or implicit biases or an inability to recognise how existing structures and institutions have the consequence of freezing an unjust status quo. To achieve substantive equality prescribed under the Constitution, indirect discrimination, even without discriminatory intent, must be prohibited. In Navtej Johar, the concurring judgment relied on the directive of the European Parliament which defines indirect discriminatory impact as: 'where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.', An earlier decision of the Supreme Court of India, Om Kumar and Ors. v. Union of India, discussed the principle of proportionality: 'If indirect discrimination were established, the Government would have to show very weighty reasons by way of objective justification, bearing in mind that derogations from fundamental rights must be construed strictly and in accordance with the principle of proportionality.' Later judgments such as S.K. Nausad Rahaman & Ors. v. Union of India and Ravinder Kumar Dhariwal v. Union of India also applied the indirect discrimination test to judge the validity of the measure in question., The common feature of the effect of the law and of the action upon the right in R.C. Cooper and the decisions which applied the indirect discrimination lens is that the objects of the legislation or policy are irrelevant. It is their impact, or the effect, on the individual, which is the focus of the Supreme Court of India's inquiry. In one sense, the development of the indirect discrimination test is a culmination of the methods which this Court adopted in judging the discriminatory impact of any law or measure on an individual., Supreme Court of India has concluded that the claim for reading a fundamental right to marry into the Constitution cannot be granted. However, the Court cannot be oblivious of the various intersections which the existing law and regulations impact on queer couples., The Constitution speaks for all, not the many or some. The felt indignities of persons belonging to the LGBTQIA+ community need no forensic proof; they have been outlined in Navtej Johar. The refusal to acknowledge choice by society is based on long tradition dating back to times when the Constitution did not exist. The question is whether the State's silence comes in the way of the Supreme Court of India recognizing that petitioners have been denied the right to choose their partner., While the State ipso facto may have no role in the choice of two free‑willed individuals to marry, its characterisation of marriage for various collateral and intersectional purposes as a permanent and binding legal relationship recognised between heterosexual couples only impacts queer couples adversely. The intention of the State in framing regulations or laws is to confer benefits to families or individuals who are married. This results in the exclusion of queer couples. By recognising heterosexual unions and cohabitation as marriages in various laws and regulations—such as employment (pension, provident fund, gratuity, life and personal accident insurance), credit (joint loans based on total earning capacity), and compensation in fatal accidents—and not providing such recognition to non‑heterosexual couples, exclusion occurs., Benefits such as employee state insurance, provident fund, compensation, medical and insurance benefits that become payable to a partner or their family in case of injury or death are denied to queer partners. The denial of these benefits and inability of the earning partner in a queer relationship has an adverse discriminatory impact. The State may not intend the discrimination, yet the framework of such policies, expressed in favour of matrimonial relationships, results in denial of entitlements despite the professional abilities and contributions of such individuals., The objective of many of these laws or schemes is to confer entitlements based on individual earning and contribution. For example, provident fund is payable due to the employee's personal contribution and status as an employee. Similarly, benefits under the Employee State Insurance Act and the Workmen's Compensation Act flow from the individual's status, work and effort. The restrictive definition of dependents or nominees (spouse or family members in a heteronormative manner) excludes queer partners from enjoying the intended benefits., This deprivation has to be addressed. For instance, a queer couple may live together as spouses without legal recognition for decades. If one partner dies in a motor vehicle accident, the surviving partner would be unable to claim any share of the deceased's estate or compensation, and benefits would go to the family members of the deceased, even if they had ostracised the couple. The same result would occur for family pension and death benefits. Such injustice results in discrimination unless remedial action is taken by the State and central governments., It is relevant to note that while the right to marry or have a legally recognised marriage is only statutory, the right to cohabit and live in a relationship in the privacy of one's home is fundamental and enjoyed by all. This is not to say that the latter is unqualified or without restriction, but it is a right afforded to all irrespective of the State's recognition of the relationship. The discriminatory impact recognised above highlights the effect of a legislative vacuum on long‑term queer couples who do not have the avenue of marriage to entitle them to earned benefits., Could the same logic be extended to heterosexual couples who choose not to marry despite having the avenue? With respect, this would require further consideration by the State and was not argued nor called upon to decide in the present petitions. Therefore, the State must remain cognizant of the unwitting consequence of creating two parallel frameworks for live‑in or domestic partnerships and marriages, and the confusion or anomalies this may cause to gendered legal frameworks while trying to remedy discrimination faced by queer couples., Addressing these aspects means considering a range of policy choices involving multiple legislative architectures governing regulations, guided by diverse interests and concerns. On 03 May 2023, during the hearing, the learned Solicitor General, on instructions, expressed the Union's position that a high‑powered committee headed by the Union Cabinet Secretary would be formed to undertake a comprehensive examination of such impacts and make necessary recommendations., We agree with Part XI of the learned Chief Justice's opinion which discusses the right of transgender persons to marry. We also agree with the discussion relating to gender identity—that sex and gender are not the same, and that there are people whose gender does not match the sex assigned at birth, including transgender men and women, intersex persons, other queer gendered persons, and persons with socio‑cultural identities such as hijras—as well as the right against discrimination under the Transgender Persons Act, 2019. The discussion on the provisions of the Transgender Persons Act, 2019 and enumeration of various remedies it provides, and harmonious construction of its provisions with other enactments, do not need any separate comment. Consequently, we agree that transgender persons in heterosexual relations have the right to marry under existing laws, including personal laws regulating marriage. The Supreme Court of India's affirmation of the High Court judgment in Arun Kumar v. Inspector General of Registration is based upon a correct analysis., Some petitioners have challenged Regulation 5(3) of the 2020 Central Adoption Resource Agency (CARA) Regulations. By Section 57(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015, consent of both spouses for adoption is required. By Section 57(5), the authority is enabled to frame any other criteria. CARA notified regulations in furtherance of Section 57(3) which inter alia mandate that the prospective adopting couple should have been in a stable marital relationship for at least two years. The petitioners argued that these regulations relating to adoption were ultra vires the parent enactment, the Juvenile Justice Act, and arbitrary for classifying couples on the basis of marital status for the purpose of joint adoption. We have perused the reasoning and conclusion by the learned Chief Justice on this aspect and are unable to concur.
id_1381	19	No child shall be given in adoption to a couple unless they have at least two years of stable marital relationship except in the cases of relative or step‑parent adoption. The interpretation placed on Section 57(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 by the learned Chief Justice is that it contemplates joint adoption by both married and unmarried couples, but the condition requiring both spouses to consent applies only to married couples. Therefore, while the Juvenile Justice (Care and Protection of Children) Act, 2015 is wider in its scope, the Child Adoption Regulation Act 5(3) [in furtherance of Section 57(5) which delegates power to prescribe any other criteria] stipulating a stable marital relationship exceeds the power granted by the parent Act, and is ultra vires the express provisions and legislative policy of the Juvenile Justice (Care and Protection of Children) Act, 2015. Our disagreement with this characterization is laid out in Part A below. Thereafter, the learned Chief Justice has read down the offending part marital from Regulation 5(3), and held that the requirement of consent embodied in Regulation 5(2)(a) would be equally applicable on both married and unmarried couples. We are of the firm opinion that the exercise of reading down itself is unsustainable [see Part B below] and hence, this consequence though favourable cannot apply. Our reasoning in relation to the aspect of adoption by queer couples, and the indirect discrimination faced, is elaborated in Part C., A. Not a case of delegated legislation being ultra vires the parent Act. With respect, we disagree with the interpretation of Section 57(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 itself. A reading of the provision as a whole makes it clear that it intends joint adoption only to married couples. While the word couple is not preceded by married, the use of spouse later in the sentence rules out any other interpretation. The principle of noscitur a sociis (meaning of a word should be known from its accompanying or associating words) is squarely applicable; a provision is to be seen as a whole, wherein words are to be read in the context of accompanying or associating words. In K. Bhagirathi G. Shenoy and Ors. v. K.P. Ballakuraya & Anr., it was observed: “It is not a sound principle in interpretation of statutes to lay emphasis on one word disjuncted from its preceding and succeeding words. A word in a statutory provision is to be read in collocation with its companion words. The pristine principle based on the maxim noscitur a sociis has much relevance in understanding the import of words in a statutory provision. Furthermore, such an interpretation of construing a part of one provision as operating to one set of people, and not others, is simply not known to law.”, To read Section 57(2) as enabling both married and unmarried couples to adopt, but that the statutory provision contemplates a restriction or requirement of consent only on the former kind of couple is not based on any known principle of interpretation. There is a strong legislative purpose in the requirement of obtaining consent of the spouse, which is rooted in the best interest of the child; for their welfare and security. The parent Act and delegated legislation are clear that a prospective adoptive parent can be a single person (whether unmarried, widower, etc.) and there exists no restriction other than a single male being barred from adopting a girl child. The restriction of consent of partner applies only in the case of a couple because the child will enter into a family unit consisting of two parents as a result of the adoption and will enjoy the home made of both partners. Acceptance of the other partner is imperative; it would not be in the best interest of the child if one of the partners was unwilling to take on the responsibility. The only other legislative model is Section 7 and 8 of the Hindu Adoption and Maintenance Act, 1956 which mandates consent of both spouses (which, like other personal laws, uses the gendered language of wife and husband)., Therefore, given that we differ on the starting point itself that Section 57(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 permits joint adoption by both married and unmarried couples (as held by the learned Chief Justice) we are of the considered opinion that this is not a case of delegated legislation being ultra vires the parent Act., The legislative choice of limiting joint adoption only to married couples needs to be understood in the broader context of the Juvenile Justice (Care and Protection of Children) Act, 2015, whose purpose is the best interest of the child. Legal benefits and entitlements flow either from the individual adopting (when a single person adopts) or the married couple adopting as a unit. In the case of bereavement of a single parent, custody of the child may be taken by a relative, whereas it continues with the surviving spouse in the case of a married couple. If a married couple experiences breakdown of marriage or abandonment/neglect of one partner and the child, there are protections in law that enable the deserted or neglected spouse to receive maintenance and other protections. The Protection of Women from Domestic Violence Act offers protection even to those in an unmarried live‑in relationship, but a situation that does not involve domestic violence and is simply neglect or desertion raises the question of how to enforce protection due to the child., The Juvenile Justice (Care and Protection of Children) Act, 2015 merely enables adoption, but for all other consequences relating to the rights of a child qua their parents and the obligations of a parent, reference must be made to prevailing law (law relating to marriage and divorce, maintenance, succession, guardianship, custody, etc.). When a single person adopts as an individual, their capabilities are assessed as per Section 57(1) and Regulation 5(1), and the responsibility of that child falls squarely on this individual. If that person enters into a relationship, whether it later succeeds or fails, the responsibility of the child remains with the individual until they are married and the partner legally adopts the child. When a couple adopts, they are jointly assessed and the responsibility falls on both parents. If one parent abandons the relationship and the other is unable to maintain the child, recourse lies in other statutory provisions. Reading the law in the manner adopted by the learned Chief Justice would have disastrous outcomes because the ecosystem of law would be unable to guarantee protection to the child in the case of breakdown of an unmarried couple adopting jointly. This would not be in the best interest of the child., B. Not a case for reading down or other interpretive construction. Counsel relied on the case of X v. Principal Secretary where this Supreme Court of India read down “married woman” to “just woman” for the purpose of interpreting the Medical Termination of Pregnancy Act, to argue that a similar interpretation be adopted for the law relating to adoption. In our considered opinion, that case was on a different footing altogether; it related to an individual woman's right to choice and privacy affecting her bodily autonomy. The classification on the basis of marital status was wholly arbitrary. The Juvenile Justice (Care and Protection of Children) Act, 2015 and its regulations are on a different footing. Here, the object of the Act and guiding principle is the best interest of the child (and not to enable adoption for all)., It is agreeable that all marriages may not provide a stable home, and that a couple tied together in marriage are not a morally superior choice or per se make better parents. Undoubtedly, what children require is a safe space, love, care, and commitment which is also possible by an individual, or a couple married or unmarried. There is no formula for a guaranteed stable household. Principally, these are conclusions we do not differ with. As a society and in the law, we have come a long way from the limited conception of a nuclear family with gendered roles, and privileging this conception of family over other atypical families. However, the fact that Parliament has made the legislative choice of including only married couples for joint adoption (i.e., where two parents are legally responsible) arises from the reality of all other laws wherein protections and entitlements flow from the institution of marriage. To read down marital status as proposed may have deleterious impacts that only the legislature and executive could remedy, making this much like the discussion on interpretation of the Special Marriage Act, an outcome that cannot be achieved by the judicial pen. Nevertheless, there is a discriminatory impact on queer couples, perhaps most visible through adoption regulation, that requires urgent state intervention (elaborated in Part C)., Furthermore, the previous analysis of the Special Marriage Act has led this Supreme Court of India to conclude that its provisions cannot be modified through any process of interpretation and that the expression “spouse” means husband and wife or a male and female as the case may be, on an overall reading of its various provisions. By Section 2(64) of the Juvenile Justice (Care and Protection of Children) Act, 2015, expressions not defined in that Act have the same meanings as defined in other enactments. The Special Marriage Act is one example. Likewise, the Hindu Adoption and Maintenance Act contains the expression wife and husband. In these circumstances, we are of the opinion that the manner in which Section 57(2) is cast, necessitating the existence of both spouse and their consent for adoption of a child, means that Regulation 5(3) cannot be read down in the manner suggested by the learned Chief Justice., Therefore, in our opinion, while the argument of the petitioners is merited on some counts, the reading down of the provision as sought would result in the anomalous outcome that heterosexual couples who live together but choose not to marry may adopt a child together and would become indirect beneficiaries without the legal protection that other statutes offer, making it unworkable., C. Discriminatory impact of adoption regulations on queer persons. Section 57(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 spells out the eligibility conditions of prospective adoptive parents. The petitioners argued that the expression “marital” results in discrimination insofar as a single parent can adopt, the only prohibition being that a single man cannot adopt a girl child. Further, if a single man or a single woman chooses to adopt separately as an individual and live together, the resultant de facto parents would still have a choice of marrying each other for the child to be legally the child of both parents. Conversely, a heterosexual couple can adopt jointly by entering into marriage, thereby becoming eligible for joint adoption. However, in the absence of legal recognition of a queer couple union, they are left to adopt as individuals and the resultant de facto family has no avenue for legal recognition. This inequitable result also affects the children adopted by them, who have no say in the matter., Given the social reality that queer couples are having to adopt in law as individuals but are residing together and raising these children together, the State arguably has an even more urgent need to enable the full gamut of rights to such children as both parents. For instance, in an unforeseen circumstance of death of the partner who adopted the child as an individual, the child may become the ward of the deceased’s relatives, who might not be known to the child, whereas the surviving partner who has been a parent to the child is left a stranger in law. This is another consequence of the non‑recognition of queer unions that the State must address and eliminate by appropriate mitigating measures., This is not to say that unmarried couples, whether queer or heterosexual, are not capable or suitable to be adoptive parents. However, once the law permits adoption by single individuals, the likelihood of their joining and co‑habiting cannot be ruled out. In such events, de facto family units can and do arise. The underlying assumption in the law that such unmarried heterosexual or queer couples should not adopt needs to be closely examined. Similarly, the need of such couples to have and raise a family in every sense of the term has to be accommodated within the framework of the law, subject to the best interests of the child. The existing state of affairs, which permits single individuals to adopt and later to live as a couple, in effect deprives the children of such relationships of various legal and social benefits that are otherwise available to children of a married couple. In other words, given the objective of Section 57 and other allied provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015, which is beneficial for children, the State as parens patriae needs to explore every possibility and not rule out any policy or legislative choice to ensure that maximum welfare and benefits reach the largest number of children in need of safe and secure homes with a promise for their fullest development. This aspect is extremely important given that a large number of children remain neglected or orphaned., It goes without saying that the welfare and benefit of the children is paramount in every case, and the State has the duty to act as parens patriae. Our country has countless children who are orphaned or neglected and in need of loving homes; this is a concern that the State is acutely aware of. In these circumstances, it would be in the general interest of all children that such discriminatory impact be removed at the earliest instance, after undertaking an in‑depth study and analysis of the various permutations that would arise in opening adoption more widely, without hampering the children’s rights. In its exercise of reframing the regulations or laws, it is reiterated that the State cannot make regulations that are facially or indirectly discriminatory on the ground of sexual orientation. It would be entirely wrong if the observations herein are construed as saying that the State should hamper or interfere in queer persons who have in the past, or are seeking to adopt as individuals. These observations are to be construed to enable the State to consider all options and implications, with the object of promoting the best welfare of children, especially whether joint adoption can be facilitated to such willing couples, while ensuring that the legal web of statutory protections and entitlements guaranteed to children are operationalised for these children as well., These observations are not meant to impede all possibilities and make all necessary policy and legislative changes, enabling children’s welfare. In other words, the possibility of queer couples adopting children should be given equal concern and consideration having regard to the larger interest of the largest number of children and their development., Moulding relief. The breadth and amplitude of the Supreme Court of India’s jurisdiction is incontestable. The Constitution framers created this as a fundamental right in most emphatic terms. This jurisdiction enables the court to create and fashion remedies suited for the occasion, often times unconstrained by previous decisions. Yet the breadth of this power is restrained by the awareness that it is essentially judicial. The court may feel the wisdom of a measure or norm that is lacking; nevertheless, its role is not to venture into functions which the Constitution has authorised other departments and organs to discharge., Social acceptance is an important aspect of the matrimonial relationship, but that is not the only reality; even in the exercise of choice by the parties to a marriage, there may be no acceptance at all by members of their respective families; others may shun them. Yet, their relationship has the benefit of the cover of the law, since the law would recognize their relationship and afford protection and extend benefits available to married persons. This, however, eludes those living in non‑heterosexual unions, who have no such recognition in all those intersections with laws and regulations that protect individual and personal entitlements that are earned, welfare based, or compensatory. The impact, therefore, is discriminatory., Does the existence of such discriminatory impacts, in these intersections with the State, and arising out of a variety of regulations and laws, impel this Supreme Court of India to fashion a remedy, such as a declaration, which enjoins legislative activity, or instructs the executive to act in a specified manner, i.e., achieving non‑heterosexual couple marriage? This aspect cannot be viewed in isolation, but in the context of our Constitution’s entrenchment of separation of powers, which according to Kesavananda Bharati, Indira Gandhi and other judgments constitutes an essential feature of the Constitution. It is one thing for this Supreme Court of India to commend the State to eliminate the discriminatory impact of the intersections with laws and publicly administered policies and institutions upon non‑heterosexual couples, and entirely another to indirectly hold that through a conflation of positive obligations cast on the State, that such individuals’ right to cohabit and form abiding relationships extends to the right to a legally recognised union that must be actualised by State policy or legislation., The petitioners relied on three judgments specifically to argue that this Supreme Court of India could issue directions to fill the legal lacunae: Common Cause, Vishaka & Ors v. State of Rajasthan and National Legal Services Authority. We have briefly summarized why these were in a context different from the case before us., In Common Cause, the court elaborated on the theme of liberty under Article 21 of the Constitution and the façade of dignity inherent in it. The Court relied on Port of Bombay v. Dilipkumar Raghavendranath Nadkarni, Maneka Gandhi, and State of A.P. v. Challa Ramkrishna Reddy. The court also relied on K.S. Puttaswamy, National Legal Services Authority and Shabnam v. Union of India to underline the intrinsic value of dignity and further stated that life is not confined to the integrity of the physical body. Having said that, the Court formulated the right under Article 21 to include the right to die with dignity of a dying or terminally ill person and approved the application of only passive euthanasia. The Court further approved the idea of individual autonomy and self‑determination, building upon the directions granted in the earlier judgment in Aruna Ramchandra Shanbaug v. Union of India. The Court was also influenced by the recommendations of the 241st Law Commission Report which suggested incorporation of additional guidelines in addition to an elaboration of what had been spelt out in Aruna Shanbaug. The Court rejected the argument that the previous ruling in Gian Kaur v. State of Punjab did not rule that passive euthanasia can only be given effect to through legislation and further that the Court could only issue guidelines., The approach of Common Cause, as can be seen from the varied opinions of the Judges forming the Bench, was one of seeing the workability and the need to elaborate guidelines formulated in Aruna Shanbaug. The Court had no occasion, really speaking, but to consider whether the directions given could not have been given. Furthermore, there were reports in the form of Law Commission recommendations which formed additional basis for the Court’s discretion and the final guidelines. An important aspect is that all judgments in Common Cause located the right to passive euthanasia premising upon the right to human dignity, autonomy and liberty under Article 142., Vishaka was an instance where, in every sense of the term, there was all‑round cooperation as is evident from the position taken by the Union of India which had expressly indicated that guidelines ought to be formulated by the Court. The trigger for these guidelines was the resolve that gender equality (manifested in Articles 14 and 15 of the Constitution as well as the right to pursue one’s profession and employment [Article 19(1)(g)]) needed some express recognition to ensure protection from sexual harassment in the workplace and to work with dignity, a basic human right which needed to be addressed in the context of women at workplace. The Court took note of international conventions and instruments and also held that guidelines had to be formulated for enforcement of Fundamental Rights till a suitable law is made. The Court expressly indicated what kind of behaviour was sexual harassment and further that regulations had to be formulated for prohibited sexual harassment and providing for appropriate penalties at workplace. Other directions were that if the conduct amounted to an offence, the employer had to initiate appropriate action according to law and also ensure that the victims had the option of transfer of their perpetrator or their own transfer. Furthermore, disciplinary action in terms of the rules was directed with a further requirement that necessary amendments were to be carried out. The Court then went on to request the State to consider adopting suitable measures indicating legislation to ensure that the guidelines in the order were employed by the Government., Central to the idea of issuing directions or guidelines in Vishaka was the felt need to address a living concern – that of providing redressal against socially repressible conduct suffered by women in the course of employment. The Court stepped in, so to say, to regulate this behaviour in public places, which though not criminalised or outlawed (other than in the limited context of Section 354 of the Indian Penal Code) actually tended towards criminal behaviour. The Court articulated the constitutional vision for bringing about gender parity and, to that end, elimination of practices which tended to lower the dignity and worth of women through unacceptable behaviour. Guided by Article 15(3), the court stepped in, while limiting itself to regulate workplaces essential in the public field (State or State agencies). The Union of India was actively involved and had given suggestions at the time of formulation of these guidelines. At the same time, the court realised its limitation and declared that such guidelines shall continue till appropriate laws are made. Existing service rules were in fact amended to accommodate these concerns, to the extent of incorporating the forums through which such grievance could be articulated. This later culminated in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 which applies not merely to public but all establishments., In National Legal Services Authority, the Court was confronted with an acute concern wherein the personhood of transgender persons itself was not recognised. The court held that the intrinsic worth of every individual and the value of individuals to fully realise their rights was a premise embedded in the Constitution. The Court sought to address hostile discriminatory practices, which included violence that transgender persons were subjected to routinely. Given all these circumstances, the Court located the right of those identifying themselves as transgender persons squarely under Article 21 of the Constitution. Any discriminatory practice against such persons would violate their Article 15 right. The directions given by the Court were that such persons should be treated as third gender where appropriate, and granted legal protection to their self‑identified gender identity. Further, the State and Central Government should seriously address problems faced by them by providing measures for medical care and facilities in hospitals, permitting them access to social welfare schemes for their betterment and take other measures. The court also constituted an expert committee to make an in‑depth study of problems faced by transgender persons., In the present case, however, the approach adopted in the above three cases would not be suitable. The court would have to fashion a parallel legal regime, comprising of defined entitlements and obligations. Furthermore, such framework containing obligations would cast responsibilities upon private citizens and not merely the State. The learned Chief Justice’s conclusions also do not point towards directions of the kind contemplated in Vishaka. However, the outlining of a bouquet of rights and indication that there is a separate constitutional right to union enjoyed by queer couples, with the concomitant obligation on the State to accord recognition to such union, is what we take exception to., Conclusion and directions. Marriage, in the ultimate context, is not defined merely by the elements which delineate some of its attributes, and the differing importance to them, depending on times, such as permanence of a sexual partner; procreation and raising of children, stability to family, and recognition in the wider society. Some, or most of these elements may be absent in many relationships: there may be no procreative possibility due to choice, or otherwise; some marriages may have no wider context, such as absence of the larger family circle, due to several reasons, including alienation or estrangement; there may be no matrimonial home, in some marriage, because of constraints including spouses being located in different places; some marriages may be (by choice or otherwise) bereft of physical or sexual content. Yet, these marriages might be as successful, as fulfilling and complete as any other. The reason, in this author’s opinion, is that at its core, marriage has significant companionship, friendship, care and spiritual understanding, a oneness, which transcends all other contents and contexts. Thus, home is not a physical structure; it is rather the space where the two individuals exist, caring, breathing and thinking, living for each other. This is how traditionally it has been understood., This feeling need not be unique to marriage; and in fact has come to be enjoyed by many without the cover of it (for example, those who are simply in committed cohabitative relationships). While many others may only be able to experience such a feeling and way of life if it were to have legitimacy in society, akin to marriage. That law has the potential to play such a legitimising role cannot be overstated. The feeling of exclusion that comes with this status quo is undoubtedly one which furthers the feeling of exclusion on a daily basis in society for members of the queer community. However, having concluded that there exists no fundamental right to marry, or a right to claim a status for the relationship through the medium of a law and acknowledged the limitations on this Supreme Court of India in moulding relief, this court must exercise restraint; it cannot enjoin a duty or obligation on the State to create a framework for civil union or registered partnership, or marriage, or abiding co‑habitational relationship. Yet, it would be appropriate to note that everyone enjoys the right to choice, dignity, non‑discrimination, and privacy. In a responsive and representative democracy which our country prides itself in being, such right to exercise choices should be given some status and shape. Of course, what that should be cannot be dictated by courts. At the same time, prolonged inactivity by legislatures and governments can result in injustices. Therefore, action in this regard would go a long way in alleviating this feeling of exclusion that undoubtedly persists in the minds and experiences of this community., The resultant adverse impact suffered by the petitioners in relation to earned benefits, solely because of the State’s choice to not recognise their social union or relationship, is one which results in their discrimination. This discriminatory impact cannot be ignored by the State; the State has a legitimate interest necessitating action.
id_1381	20	The form of action whether it will be by enacting a new umbrella legislation, amendments to existing statutes, rules, and regulations that as of now, disentitle a same‑sex partner from benefits accruing to a spouse (or family as defined in the heteronormative sense), etc., are policy decisions left to the realm of the legislature and executive. However, the recognition that their non‑inclusion in a legal framework which entitles them, and is a prerequisite eligibility criteria for myriad earned and accrued benefits, privileges, and opportunities has harsh and unjust discriminatory consequences, amounting to discrimination violating their fundamental right under Article 15, is this court's obligation, falling within its remit. The State has to take suitable remedial action to mitigate the discriminatory impact experienced by the members of the queer community, in whatever form it deems fit after undertaking due and necessary consultation from all parties, especially all state governments and Union Territories, since their regulations and schemes too would have to be similarly examined and addressed., Supreme Court of India hereby summarizes its conclusions and directions as follows: There is no unqualified right to marriage except that recognised by statute including space left by custom. An entitlement to legal recognition of the right to union akin to marriage or civil union, or conferring legal status upon the parties to the relationship can be only through enacted law; consequently, the court cannot enjoin or direct the creation of such regulatory framework resulting in legal status. The finding in the previous point should not be read as to preclude queer persons from celebrating their commitment to each other, or relationship, in whichever way they wish, within the social realm. Previous judgments of the Supreme Court of India have established that queer and LGBTQ+ couples also have the right to union or relationship (under Article 21) be it mental, emotional or sexual flowing from the right to privacy, right to choice, and autonomy; this, however, does not extend to a right to claim entitlement to any legal status for the said union or relationship. The challenge to the Special Marriage Act on the ground of under classification is not made out. Further, the petitioners' prayer to read various provisions in a gender‑neutral manner so as to enable same‑sex marriage is unsustainable. Equality and non‑discrimination are basic foundational rights. The indirect discriminatory impacts in relation to earned or compensatory benefits, or social welfare entitlements for which marital status is a relevant eligibility factor, for queer couples who in their exercise of choice form relationships, have to be suitably redressed and removed by the State. These measures need to be taken with expedition because inaction will result in injustice and unfairness with regard to the enjoyment of such benefits, available to all citizens who are entitled and covered by such laws, regulations or schemes (for instance, those relating to employment benefits: provident fund, gratuity, family pension, employee state insurance; medical insurance; material entitlements unconnected with matrimonial matters, but resulting in adverse impact upon queer couples). As held earlier, the Supreme Court of India cannot within the judicial framework engage in this complex task; the State has to study the impact of these policies and entitlements. Consistent with the statement made before the Supreme Court of India during the course of proceedings on 03.05.2023, the Union shall set up a high‑powered committee chaired by the Union Cabinet Secretary, to undertake a comprehensive examination of all relevant factors, especially including those outlined above. In the conduct of such exercise, the concerned representatives of all stakeholders, and views of all States and Union Territories shall be taken into account. The discussion on discriminatory impacts is in the context of the effects of the existing regimes on queer couples. While a heterosexual couple’s right to live together is not contested, the logic of the discriminatory impact faced by queer couples cohabiting together would definitionally, however, not apply to them. Transgender persons in heterosexual relationships have the freedom and entitlement to marry under the existing statutory provisions. Regulation 5(3) of the Central Adoption Resource Authority Regulations cannot be held void on the grounds urged. At the same time, the Supreme Court of India is of the considered opinion that the Central Adoption Resource Authority and the Central Government should appropriately consider the realities of de facto families, where single individuals are permitted to adopt and thereafter start living in a non‑matrimonial relationship. In an unforeseen eventuality, the adopted child in question could face exclusion from the benefits otherwise available to adopted children of married couples. This aspect needs further consideration, for which the court is not the appropriate forum. Furthermore, the State shall ensure – consistent with the previous judgments of the Supreme Court of India in K.S. Puttaswamy (supra), Navtej Johar (supra), Shakti Vahini (supra) and Shafin Jahan (supra) – that the choice exercised by queer and LGBTQ+ couples to cohabit is not interfered with and they do not face any threat of violence or coercion. All necessary steps and measures in this regard shall be taken. The respondents shall take suitable steps to ensure that queer couples and transgender persons are not subjected to any involuntary medical or surgical treatment. The above directions in relation to transgender persons are to be read as part of and not in any manner whittling down the directions in National Legal Services Authority (supra) so far as they apply to transgender persons. The Supreme Court of India is alive to the feelings of being left out, experienced by the queer community; however, addressing their concerns would require a comprehensive study of its implications involving a multidisciplinary approach and polycentric resolution, for which the court is not an appropriate forum to provide suitable remedies., Postscript. We have the benefit of the final draft by the learned Chief Justice, which contains Section E responses to the opinion of the majority as well. Similarly, we have the benefit of perusing the separate opinion of Justice Sanjay Kishan Kaul, J. While it would not be necessary to deal pointedly with the responses of my learned brothers, certain broad aspects are addressed in the following paragraphs, to clear the air or dispel any misunderstanding., The learned Chief Justice in his response seeks to highlight that the Supreme Court of India has in the past exercised its powers under Article 32 in respect of enforcement of various fundamental rights and cited certain precedents. A close look at each of them would reveal that in almost all cases, the Court enforced facets of personal liberty, or an aspect that was the subject of legislation. The allusion to cases dealing with subjects, particularly, incarceration of persons with mental disabilities (Sheela Barse), the right to speedy trial (State of Punjab v. Ajaib Singh), legal aid (Manubhai Pragji Vashi) etc., are directly concerned with personal liberty. The reference to cases dealing with clean environment is also a facet of Article 21; in fact, there are enacted laws in the field of environment protection. The allusion to the directions in PUCL v. Union of India is pertinent; in that judgment, the Court issued a series of directions to the State, operationalising existing government schemes and issuing consequential directions to mitigate large‑scale loss of grains by directing that they be distributed/channelised by the State into the Public Distribution System. The other decision, State of Himachal Pradesh v. Umed Ram Sharma, was a case where the High Court had directed speedy implementation and construction of a road which had been sanctioned by the State but had been left incomplete. It was held that direction was not to supervise the action but only to apprise the State of the inaction to bring about a sense of urgency. The Court also observed that it is primarily within the domain of the executive to determine the urgency and manner of priorities of any law. This Court, by its judgment, observed that there was nothing wrong in such directions, since a sanction for the road had been obtained but there was tardy implementation of the same., That certain fundamental rights have positive content, or obligation, is not disputed. In paragraph 57 this has been elaborated; the exception was instead taken to the approach suggested by the learned Chief Justice, of tracing the right to union from a conjoint reading of multiple Articles (clauses of Article 19, Article 25 and Article 21), as necessitating the creation of a legal status to the relationship (a result of the obligation to accord recognition) and enunciation of a bouquet of entitlements flowing from this. With respect, such a direction is in the nature of creating a legal status. Further, the discussion on the absence of law, and limited extent of positive rights under Article 19 and Article 25, was in fact to insist that rather than ordering liberties and enumerating every possible right or the way in which it is to be enjoyed, the content of fundamental rights is that they take up all the space, until restricted which can be tested on the ground of its reasonableness, as per the limitations in Part III. This in no manner takes away from the previous jurisprudence of this Court where positive obligation under Article 21 has been expounded to locate several obligations upon the State., This Court's observations with respect to the learned Chief Justice's reasoning centred around the enunciation of the bouquet of rights emanating from various provisions other than Article 21 (Article 19 and Article 25), and locating an obligation, have to be seen in the backdrop of the unanimous view of this Court that the fundamental right to marry is not found within the Constitution. Therefore, it is our considered opinion that to create an overarching obligation upon the State to facilitate through policies the fuller enjoyment of rights under Article 19 and Article 25 is not rooted in any past decision or jurisprudence. That queer couples have the right to exercise their choice, cohabit and live without disturbance is incontestable. In the same vein, that they are owed protection against any threat or coercion to their life is a positive obligation that binds the State; this is a natural corollary of their right under Article 21., Consider in this context also the nature of the relief sought and the positive obligation fashioned. While there are innumerable judgments on the positive content of rights under Article 21, there are also countless judgments that insist upon the separation of powers when it comes to matters of policy, and that the courts are not the appropriate forum for the adjudication of the same. The polycentric nature of the issue is compelling., Next, on the charge levelled that our conclusion on the challenge to the Special Marriage Act (Part V of this judgment) and subsequently the finding on the disparate or discriminatory impact faced by the queer community (Part VI) being contradictory, a small comment is called for. The section discussing the provisions of the Special Marriage Act and the challenge to its validity was based entirely upon whether it violated the Constitution on the ground of impermissible classification (under Article 14) for which the object of the Act (i.e., to facilitate marriage between inter‑faith couples, wherein at the time marriage or even a couple only denoted heterosexual couples in light of same‑sex relations being criminalised) and its provisions are relevant factors. Classification involves differentiation; further, this Court has discussed how under classification per se does not warrant invalidation. In contrast, in the latter segment on discriminatory impact (Part VI), the issue that this Court was considering was not reasonable classification but the impact upon queer couples through neutral laws or regulations that they encounter in their everyday lives; the purpose of which, or even their substantive provisions, have nothing to do with matrimony. It is rather to confer other benefits, many of which are earned or accrued on account of individual skill and attainment. Yet the framing of some benefits or their intended beneficiary wherever articulated in terms of entitlement to families or spouses tends to exclude from its ambit queer couples and their lived realities. When such queer couples are entitled to benefits wherever they fulfil other eligibility criteria, it is the disparate impact of these neutral laws in disbursal of entitlements or benefits which is seen through the effect/impact lens. Therefore, the discussion on the constitutionality of the Special Marriage Act is markedly different from the section on discriminatory impact in certain points for queer persons, as they have no avenue for marriage like heterosexual persons. In the latter, the impact of various laws was pointed as a starting point for the State to take remedial action., What is apparent, however, from our judicial differences and the manner in which we have articulated them is that a certain question of fair significance arises: whether the absence of law or a regulatory framework, or the failure of the State to enact law, amounts to discrimination that is protected against under Article 15. With respect, this was perhaps neither argued nor answered by us; our opinion is limited to testing the provisions of the Special Marriage Act for violation of fundamental rights and noticing that there are various cracks through which the queer community slips through in other neutral laws, policies and frameworks, due to the manner in which they privilege marital/spousal status (access to which is not enabled/possible under existing law). Article 15(1) now can be understood as permitting a classification for the purpose of fashioning policies. Can the State's omission to create a classification, and further, its absence of a policy for a distinct group, which in the Court's opinion deserves favourable treatment, amount to violation of Article 15? There is no known jurisprudence or case law (yet) pointing to the absence of law being considered as discrimination as understood under Article 15., The learned Chief Justice has dealt in some detail with that section of our judgment on adoption (Part VIII). The underlying premise of his comments seeks to highlight that the existing legal framework affords protection in the event of an unforeseen eventuality like abandonment, or sudden death of one partner. It is incontestable that Section 63 of the Juvenile Justice (Care and Protection of Children) Act provides legal status to the child in relation to their adoptive parent(s). However, that per se is not adequate to address all concerns relating to the child. There would be difficulties faced by children in claiming entitlements such as maintenance in the absence of a general law. The example given by the learned Chief Justice illustrates this: benefit under the Hindu Adoption and Maintenance Act (which is available only to Hindus, but accommodates both genders, unlike other laws). A suggestion of Section 125 of the Criminal Procedure Code would give rise to the same set of difficulties as the earlier discussion on the Special Marriage Act. In other words, to obviate the gendered language, an interpretive exercise of the kind ruled out for the interpretation of the Special Marriage Act would be necessary. It is for these reasons that we highlighted the need for the State to consider all aspects. This Court would reiterate that there is no basis for interpreting the term \couple\ under Section 57(2) of the Juvenile Justice Act as including both married and unmarried couples, given the use of the word \spouse\ in the very same provision. It is pertinent to highlight that Section 2(61) of the Juvenile Justice Act prescribes that expressions not defined would have the same meaning as in other enactments., As far as the learned Chief Justice's comment with respect to this Court not reading down \marital\ or striking down Regulation 5(3) of the Central Adoption Resource Authority Regulations, the earlier discussion in Part VIII clarified that there was a conscious legislative policy while highlighting the interpretation of the term \spouse\. At the same time the Court recognised the disparate, and even discriminatory impact, on children of individuals who formed de facto families with their unmarried partner. In our opinion, striking down the term \marital\ under Regulation 5(3) would likely have unintended consequences, which cannot be comprehended by the Court as it involves policy considerations. This is the reason for desisting from invalidating the provision but leaving it to the State to take measures to remedy these impacts., Lastly, a small note of caution is expressed in relation to a few conclusions of our learned brother Justice Kaul, J. There can hardly be any dispute of the positive outcomes or the need for a broadly applicable non‑discriminatory law as elaborated by Justice Kaul, J. However, the wisdom or unwisdom of such a law, the elements that go into its making are matters that are not before this Court to comment on. Nor can we anticipate what its content would be. We are of the opinion that it is not possible to hold that a positive obligation to enact such a law exists. We, therefore, expressly place our disagreement with the reasoning of Justice Kaul, J on this aspect., The known canons of interpretation require the courts to take any statute and interpret its provisions keeping in mind their contextual setting. Likewise, the meaning of words has to be understood in the totality of provisions of the statute. Thus, wherever a word is used, the overall context of its location plays a role; sometimes, its meaning changes wherever the context is different. We have hence held that the expressions in the Special Marriage Act [\wife\ and \husband\ or \male\ and \female\] cannot have a uniform meaning, because there is an intended gendered binary in the specific enacting provisions. As far as inter‑se statutes are concerned, the inexpedience of a singular, gender‑neutral meaning is not a possible outcome, as explained previously. Therefore, it is our considered view that there is no known interpretive tool enabling an exercise inter‑se and in‑between statutes, as held by Justice Kaul, J., Undoubtedly, constitutional values endure; they are not immutable. To the extent it is possible, statutes may be interpreted in tune with such evolving values. Yet statutes are neither ephemeral nor their terms transient, and are meant to confer rights, duties, and obligations and sometimes impose burdens and sanctions. This means that their contents have to be clear and capable of easy interpretation. The text of the statute therefore must be given meaning and any interpretive exercise must therefore begin with the text of the enacted law., The gaps and inadequacies outlined earlier by this judgment result in wide‑reaching impacts and concern crucial aspects of everyday life. Therefore, the respondents and all institutions should take note of the lived realities of persons across the range of gender identities and suitably prioritize their needs of social acceptance. There is also need for a move towards greater acceptance of personal choices and preferences, and an equal marking of our differences in all their varied hues., In various countries that have since legislated on same‑sex marriage, the precursor to this regime was often the civil‑union route. Known by many names, the concept of civil union enjoys varying rights and entitlements in different jurisdictions. This was a legal relationship for unmarried, yet committed couples, who cohabited together and sought certain rights and the protection of law. The rights that flowed were not identical in scope or extent to those arising from marriage, but it was still an avenue to provide certain limited, but enforceable rights. In the United States, for instance, this was rolled out by many state governments when same‑sex marriage was not legalised by the federal government. What began as an option for same‑sex couples to attain financial and legal partnership (tax benefits, property rights, child adoption in some jurisdictions, inheritance, etc.) now remains on the statute books for some states, with which couples who do not want to enter the societal pressures or institution of marriage are able to protect their rights. However, many advocates for LGBTQ+ rights have strongly opposed civil unions in other jurisdictions as offering a second‑class status in the absence of the marriage route. Other alternatives available in some of these countries, the suitability of which have also been subject to criticism of varying degrees, include domestic partnerships, cohabitation agreements, common‑law marriages, etc., This Court would be sorely mistaken if we presume what the queer community in all its diversity seeks and lay it out in a formulaic framework. Many may welcome civil unions as a pragmatic first step, while some may find it to be yet another inequitable solution to the feeling of exclusion that persists in society against this community, and one which simply repackages the stigmatisation felt. Many may desire marriage as understood in the traditional sense to escape their societal realities as a form of financial and social emancipation from opposing natal families, or diametrically opposite to assimilate and gain more social acceptance in their natal families. Yet, others may, as a result of their experience, reject altogether the institution of marriage and all the social obligations and associations that come with it, but still want legal protection of their rights. Certainly, what the former group may want does not hamper or hinder the latter in any manner for it is a choice that they seek. That the State should facilitate this choice for those who wish to exercise it is an outcome that the community may agree upon. Yet, the modalities of how it should play out, what it will entail, etc., are facets that the State, the legislature, and the executive need to exercise their power in furtherance of. Whether this will happen through proactive action of the State itself, or as a result of sustained public mobilisation, is a reality that will play out on India’s democratic stage, and something only time can tell., The State may choose from a number of policy outcomes; it may make all marriage and family‑related laws gender neutral, or it may create a separate Special Marriage Act‑like statute in gender‑neutral terms to give the queer community an avenue for marriage, it may pass an Act creating civil unions, or a domestic partnership legislation, among many other alternatives. Another consequence may be that rather than the Union Government, the State legislatures (Entry 5, List III of the Constitution of India) take action and enact law or frameworks in the absence of a central law. What is certain, however, is that in questions of such polycentric nature, whether social or political, the Court must exercise restraint and defer to the wisdom of the other branches of the State, which can undertake wide‑scale public consultation, consensus building and reflect the will of the people, and be in their best interest. If, as a result of this, a law is enacted that undermines or violates the constitutionally protected rights of an individual or a group, no matter how miniscule, their right to seek redressal from this Court is guaranteed under Article 166. The petitioners seek, what many of us may deem to be the normal or accepted next step in life upon attaining a certain age, and perhaps take it for granted, is not lost on us. Their desire for social acceptability, in the manner that has been historically known through the social recognition that marriage affords and the lack of which causes them feeling of exclusion and hurt, is one that, as individuals, especially those donning the robes of justice, we can certainly have deep empathy with. However, we are deeply conscious that no matter how much we empathise with the outcome sought, the means to arriving at such a destination must also be legally sound and keep intact the grand architecture of our constitutional scheme. For if we throw caution to the wind, we stand the risk of paving the way (wherein each brick may feel justified) to untold consequences that we could not have contemplated. While moulding relief, as a Court we must be cognizant that despite being empowered to see the capabilities of the law in its grand and majestic formulation, we must not be led aground because we are blinded by its glow., The petitions are disposed of in the above terms. Pending applications (if any) are disposed of., I am conscious of the ordeals that arise from a multiplicity of judicial opinions in cases involving constitutional questions. Yet, I consider it worthwhile to pen the present opinion, given the significant nature of the questions involved. Polyvocality in the exercise of the adjudicatory function may not necessarily be viewed with discomfort; if complemented by judicial discipline, it is truly reflective of the diversity of judicial thought., The constitutional questions for which we seek answers in the present set of petitions are two‑fold: (a) the status of the right to marry for LGBTQ+ couples and (b) depending upon the answer to the first, the remedy that must ensue. With respect to the first, the petitioners assert that not only do they have the right to marry under the Constitution, but also that through an interpretative process such a right must be read into the existing legislative framework governing marriages. The respondents oppose both the foundations upon which the petitioners seek to establish their right, and at the same time they remind us of the judicial limitations on the issuance of positive directions for enforcement of such a right., I had the privilege of traversing through the opinions of the learned Chief Justice, Justice Sanjay Kishan Kaul and Justice Ravindra Bhat. I am afraid I am unable to agree with the opinions of the Chief Justice and Justice Kaul. I am in complete agreement with the reasoning given and conclusions arrived at by Justice Bhat. I will supplement his findings with some of my own reasons. Since the broad arguments and submissions have been succinctly captured in the opinion of the learned Chief Justice, I find no reason to separately enlist them here., At the outset, I will set out my conclusions, which are also in complete consonance with that of Justice Bhat in his opinion. The question of marriage equality of same‑sex/LGBTQ+ couples did not arise for consideration in any of the previous decisions of the Supreme Court of India, including the decision in Navtej Singh Johar & Ors. v. Union of India and National Legal Services Authority v. Union of India. Consequently, there cannot be a binding precedent on this count. The rights of LGBTQ+ persons that have been hitherto recognised by the Supreme Court of India are the right to gender identity, sexual orientation, the right to choose a partner, cohabit and enjoy physical and mental intimacy. In the exercise of these rights, they have full freedom from physical threat and from coercive action, and the State is bound to afford them full protection of the law in case these rights are in peril. There is no unqualified right to marriage guaranteed by the Constitution that qualifies it as a fundamental freedom. The right to marriage is a statutory right, and to the extent it is demonstrable, a right flowing from a legally enforceable customary practice. In the exercise of such a right, statutory or customary, the State is bound to extend the protection of law to individuals so that they can exercise their choices without fear and coercion. This, in my opinion, is the real import of the decisions in Shafin Jahan v. Asokan K.M. and Shakti Vahini v. Union of India. The constitutional challenge to the Special Marriage Act, 1954 and the Foreign Marriage Act, 1969 must fail, for the reasons indicated in the opinion of Justice Bhat. Similarly, Justice Bhat also rightly finds the semantic impossibilities of gender‑neutral constructions of the Special Marriage Act, 1954 and the Foreign Marriage Act, 1969. On both points, the opinion of Justice Bhat is exhaustive as to the reasons, and they need not be supplemented.
id_1381	21	I find that a right to a civil union or an abiding cohabitational relationship conferring a legally enforceable status cannot be situated within Part III of the Constitution of India. On this count too, I agree with the conclusions of Justice Bhat, and supplement them with my own reasons., I agree with the reasoning and the conclusion of Justice Bhat with respect to the constitutionality of Regulation 5(3) of the CARA Regulations, 2020. Marriage as a social institution and the status of the right to marry. There cannot be any quarrel, in my opinion, that marriage is a social institution, and that in our country it is conditioned by culture, religion, customs and usages. It is a sacrament in some communities, a contract in others. State regulation in the form of codification has often reflected the customary and religious moorings of the institution of marriage. An exercise to identify the purpose of marriage or to find its true character is a pursuit that is as diverse and mystic as the purpose of human existence; and therefore is not suited for judicial navigation. But that does not render the institution meaningless or abstract for those who in their own way understand and practice it., In India, the multiverse of marriage as a social institution is not legally regulated by a singular gravitational field. Until the colonial exercise of codification of regulations governing marriage and family commenced, the rules governing marriage and family were largely customary, often rooted in religious practice. This exercise of codification, not always accurate and many a times exclusionary, was the product of the colonial desire to mould and reimagine our social institutions. However, what is undeniable is that, impelled by our own social reformers, the colonial codification exercise produced some reformatory legislative instruments, ushering in much-needed changes to undo systemic inequalities. The constitutional project that we committed ourselves to in the year 1950 sought to recraft some of our social institutions and within the first half decade of the adoption of the Constitution, our indigenous codification and reformation of personal laws regulating marriage and family was underway., Even when our own constitutional State attempted codification and reform, it left room for customary practices to coexist, sometimes providing legislative heft to such practices. Section 5(iv), Section 5(v), Section 77, and Section 29(2) of the Hindu Marriage Act, 1955 illustrate this. Similarly, the Special Marriage Act, 1954, in the provisos to Sections 4(d) and 15(e), saves customary practices without which the marriage would otherwise be null and void. The proviso to Section 5 of the Hindu Marriage Act states that a marriage may be solemnized between any two Hindus if the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits such a marriage, and the parties are not sapindas of each other unless the custom or usage permits., A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. Where such rites and ceremonies include the Saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken., Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act., Notwithstanding anything contained in any other law for the time being in force relating to the solemnisation of marriages, a marriage between any two persons may be solemnised under this Act if, at the time of the marriage, the following conditions are fulfilled, namely: the parties are not within the degrees of prohibited relationship, provided that where a custom governing at least one of the parties permits a marriage between them, such marriage may be solemnised notwithstanding that they are within the degrees of prohibited relationship., Any marriage celebrated, whether before or after the commencement of this Act, other than a marriage solemnised under the Special Marriage Act, 1872, or under this Act, may be registered under this Chapter by a Marriage Officer in the territories to which this Act extends if the following conditions are fulfilled, namely: the parties are not within the degrees of prohibited relationship, provided that in the case of a marriage celebrated before the commencement of this Act, this condition shall be subject to any law, custom or usage having the force of law governing each of them which permits a marriage between the two, as per Section 4(d) of the Foreign Marriage Act, 1969., Legislative accommodation of customary practices is also reflected in section 5 of the Anand Marriage Act. The legal regulation of the institution of marriage, as it exists today, involves regulation of the solemnisation or ceremony of marriage, the choice of the partner, the number of partners, the qualifying age of marriage despite having attained majority, conduct within the marriage and conditions for exit from the marriage., As to ceremonies and solemnisation, section 2 of the Anand Marriage Act, 1909, section 3(b) of the Parsi Marriage and Divorce Act, 1936, sections 10, 11 and 25 of the Indian Christian Marriage Act, 1872, and section 7 of the Hindu Marriage Act govern the matters. A marriage between parties, one of whom at least is a citizen of India, may be solemnised under this Act by or before a Marriage Officer in a foreign country if, at the time of the marriage, the parties are not within the degrees of prohibited relationship, provided that where the personal law or a custom governing at least one of the parties permits a marriage between them, such marriage may be solemnised notwithstanding that they are within the degrees of prohibited relationship., Nothing in this Act shall be deemed to validate any marriage between persons who are related to each other in any degree of consanguinity or affinity which would, according to the customary law of the Sikhs, render a marriage between them illegal., All marriages which may be or may have been duly solemnised according to the Sikh marriage ceremony called Anand, commonly known as Anand Karaj, shall be, and shall be deemed to have been with effect from the date of the solemnisation, good and valid in law., No marriage shall be valid if it is not solemnised according to the Parsi form of ceremony called Ashirvad by a priest in the presence of two Parsi witnesses other than such priest., Section 10 of the Act reads: Time for solemnising marriage. Every marriage under this Act shall be solemnised between the hours of six in the morning and seven in the evening. Section 11 reads: Place for solemnising marriage. No clergyman of the Church of England shall solemnise a marriage in any place other than a church where worship is generally held according to the forms of the Church of England, unless there is no such church within five miles distance by the shortest road from such place, or unless he has received a special licence authorising him to do so under the hand and seal of the Anglican Bishop of the Diocese or his Commissary. Section 25 reads: Solemnisation of marriage. After the issue of the certificate by the Minister, marriage may be solemnised between the persons therein described according to such form or ceremony as the Minister thinks fit to adopt, provided that the marriage be solemnised in the presence of at least two witnesses besides the Minister., The Hindu Marriage Act, 1955 explicitly recognises the central role that religious ceremonies play in solemnisation of marriages. The Muslim Personal Law (Shariat) Application Act, 1937 clearly saves the application of personal law to marriages, including the nature of the ceremony. Viewed in this perspective, the diverse religious practices involved in solemnising marriages are undeniable., The choice of the partner is not absolute and is subject to two‑dimensional regulations: (i) minimum age of partners and (ii) the exclusions as to prohibited degrees. There is a differential minimum age prescription for male and female partners in most legislations. Thus males, who have otherwise attained the age of majority, cannot marry under these enactments, even though they exercise many other statutory and constitutional rights when they attain the age of eighteen., The concept of prohibited degrees of relationship is statutorily engraved in section 5 of the Anand Marriage Act, 1909, section 3(a) of the Parsi Marriage and Divorce Act, 1936, section 5(iv) and (v) of the Hindu Marriage Act, 1955 and sections 4(d) and 15(e) of the Special Marriage Act, 1954. Persons who have attained the requisite age of marriage under these enactments have their choice and consenting capacities restricted to this extent., Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 reads: Application of Personal Law to Muslims. Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments), the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)., No marriage shall be valid if the contracting parties are related to each other in any of the degrees of consanguinity or affinity set forth in Schedule I., In my considered opinion, the institutional space of marriage is conditioned and occupied synchronously by legislative interventions, customary practices, and religious beliefs. The extant legislative accommodation of customary and religious practices is not gratuitous and is to some extent conditioned by the right to religion and the right to culture, constitutionally sanctified in Articles 25 and 29 of the Constitution of India. This synchronously occupied institutional space of marriage is a product of our social and constitutional realities, and therefore, in my opinion, comparative judicial perspectives offer little assistance. Given this nature of marriage as an institution, the right to choose a spouse and the right of a consenting couple to be recognised within the institution of marriage cannot be said to be unrestricted., The learned Chief Justice has opined that marriage may not attain the social and legal significance it currently has if the State had not recognised and regulated it through law. It is further opined that marriage has attained significance because of the benefits which are realised through it. In this context, it is necessary to recount that until the post‑constitutional codification of laws relating to marriage and divorce, there was no significant State intervention on customary laws relating to marriage. Even today, much of the Mohammedan law of marriage is governed by religious texts and customs and there is hardly any State intervention. The Sixth Schedule areas under the Constitution are largely governed by customary laws of marriage. That the State has chosen to regulate the institutional space of marriage and even if such regulation occupies the space in toto, by itself does not imply that marriage attained significance due to State recognition., I must hasten to add that the aforesaid recollection of legislative illustrations was with a view to demonstrate the cultural relativism involved in the idea of marriage. No singular right can inform unimpeded entry to and unregulated exit from the institution of marriage; for that would disassociate the institution of marriage from its social context. The claim of the right to marry, de hors the existing statutory framework, is nothing but a claim to create a legally and socially enforceable status. It is not a claim against criminalisation of sexual conduct, which was the issue in Navtej (supra). It is nothing but a prayer of mandamus to create the necessary legislative and policy space for recognition of relationships as marriages in the eyes of law. The prayer to recognise such a right is not one that expects the State to desist from pursuing an act, but one which will place positive obligations upon the State to erect new laws, or at least amend existing laws. I say laws, because marriage laws do not stand in isolation; they interact in multifarious ways with succession, inheritance and adoption laws, to name a few. The content of the right claimed by the petitioners clearly places positive legislative obligations on the State and therefore cannot be acceded to. That there cannot be a mandamus to amend or enact laws is a deeply entrenched constitutional aphorism which need not be burdened by quotational jurisprudence. We are afraid that the creation of social institutions and consequent re‑ordering of societal relationships are polycentric decisions, which have multiplicity of variable and interlocking factors, decisions on each one of which presuppose a decision on all others, decisions that cannot be rendered by one stroke of the judicial gavel., Indian Ex‑Service Movement v. Union of India, (2022) 7 SCC 323, 68., Re: The impermissibility of the creation of a right to a union or an abiding cohabitational relationship., Having concluded that there exists no unqualified right to marry, in the ordinary course no occasion would have arisen for any further deliberation. However, as the learned Chief Justice, in his opinion, has arrived at a conclusion that there exists a constitutional right to a union or an abiding cohabitational relationship, it is necessary for me to express my opinion on this new construction., The learned Chief Justice locates components of this right to union or an abiding cohabitational relationship under Article 19(1)(a), Article 19(1)(c), Article 19(1)(e), Article 21 and Article 25 of the Constitution. In my opinion, it would not be constitutionally permissible to identify a right to a union or an abiding cohabitational relationship mirroring the institution of marriage. The learned Chief Justice identifies tangible and intangible benefits (bouquet of entitlements) that arise from state recognition and regulation of marriages. The Chief Justice further opines that the right to marriage is not fundamental. However, it is these very tangible and intangible benefits, the denial of which, according to the learned Chief Justice, must inform the reading of a constitutional right to an abiding cohabitational union. In other words, the benefits of marriage, however fundamental to a fulfilling life, do not make marriage itself a fundamental right, but they render the right to an abiding cohabitational union fundamental. I find it difficult to reconcile these., The learned Chief Justice opines that it is insufficient if persons have the ability and freedom to form relationships unregulated by the State. For the full enjoyment of such relationships, it is necessary that the State accord recognition to such relationships. Thus, the right to enter into a union includes the right to associate with a partner of one's choice, with recognition to the association, and ensuring that there is no denial of access to basic goods and services is crucial to achieve the goal of self‑development. The opinion of the Chief Justice thereafter classifies the status of two persons in a relationship as: (a) relationships which do not have legal consequences, (b) unions which have legal consequences, and (c) marriages. In my considered opinion, positively mandating the State to grant recognition or legal status to unions from which benefits will flow violates the doctrine of separation of powers. The framing of a positive right and the positive entitlements which flow therefrom essentially require the State to regulate such unions and benefits. In my opinion, the direction in effect is to amend existing statutory frameworks, if not to legislate afresh., Additionally, the opinion of the learned Chief Justice situates the right to choice of a partner and the right to legal recognition of an abiding cohabitational relationship within Article 25 of the Constitution of India. Emphasis is placed on the term freedom of conscience, which is placed alongside the right to freely profess, practice and propagate religion. The opinion situates in this freedom of conscience the right not only to judge the moral quality of one's own action but also to act upon it. If that were permissible under Article 25, then the textual enumeration of freedoms in Article 19 would become redundant, since these freedoms can be claimed to be actions on the basis of one's own moral judgment. I find it difficult to agree with such a reading of Article 25., I am not oblivious to the concerns of the LGBTQ+ partners with respect to denial of access to certain benefits and privileges that are otherwise available only to married couples. The general statutory scheme for the flow of benefits, gratuitous or earned; property or compensation; leave or compassionate appointment, proceeds on a certain definitional understanding of partner, dependant, caregiver, and family. In that definitional understanding it is no doubt true that certain classes of individuals—same‑sex partners, live‑in relationships and non‑intimate caregivers including siblings—are left out. The impact of some of these definitions is iniquitous and in some cases discriminatory. The policy considerations and legislative frameworks underlying these definitional contexts are too diverse to be captured and evaluated within a singular judicial proceeding. I am of the firm belief that a review of the impact of the legislative framework on the flow of such benefits requires a deliberative and consultative exercise, which the legislature and executive are constitutionally suited and tasked to undertake., For the reasons stated above, and in view of the preceding paragraph, the writ petitions are disposed of.
id_1382	0	High Court of Himachal Pradesh 2024:HHC:999 2916 of 2023 and Civil Writ Petition Nos. 3083 to 3087, 3107, 3114 to 3117, and 7295 of 2023. Reserved on 20.12.2023., Civil Writ Petition No. 2916/2023 – Petitioner: Malana Power Company Ltd. – Respondents: State of Himachal Pradesh and others. Civil Writ Petition No. 2916/2023 – Petitioner: A.D. Hydro Power Ltd. – Respondents: State of Himachal Pradesh and others. Civil Writ Petition No. 2916/2023 – Petitioner: Nanti Hydro Power Pvt. Ltd. – Respondents: State of Himachal Pradesh and others. Civil Writ Petition No. 2916/2023 – Petitioner: Everest Power Pvt. Ltd. – Respondents: State of Himachal Pradesh and others. Civil Writ Petition No. 2916/2023 – Petitioner: Sandhya Hydro Power Projects Balrgha Pvt. Ltd. – Respondents: State of Himachal Pradesh and others. Civil Writ Petition No. 2916/2023 – Petitioner: Bonafide Himachalies Hydro Power Developers Association – Respondents: State of Himachal Pradesh and others. Civil Writ Petition No. 2916/2023 – Petitioner: Bhakra Beas Management Board and others – Respondents: State of Himachal Pradesh and others. Civil Writ Petition No. 2916/2023 – Petitioner: M/s Surya Kanta Hydro Energies Pvt. Ltd. – Respondents: State of Himachal Pradesh and others. Civil Writ Petition No. 2916/2023 – Petitioner: M/s Himshakti Projects Pvt. Ltd. – Respondents: State of Himachal Pradesh and others. Civil Writ Petition No. 2916/2023 – Petitioner: M/s Patikari Power Pvt. Ltd. – Respondents: State of Himachal Pradesh and others. Civil Writ Petition No. 2916/2023 – Petitioner: M/s Gangdari Hydro Power Pvt. Ltd. – Respondents: State of Himachal Pradesh and others. Civil Writ Petition No. 2916/2023 – Petitioner: M/s Greenko Astha Projects (India) Pvt. Ltd. – Respondents: State of Himachal Pradesh and others. Civil Writ Petition No. 2916/2023 – Petitioner: M/s Greenko Tarela Power Pvt. Ltd. – Respondents: State of Himachal Pradesh and others. Civil Writ Petition No. 2916/2023 – Petitioner: M/s Technology House (India) Pvt. Ltd. – Respondents: State of Himachal Pradesh and others. Civil Writ Petition No. 2916/2023 – Petitioner: M/s Greenko Tejassarnika Hydro Energies Pvt. Ltd. – Respondents: State of Himachal Pradesh and others. Civil Writ Petition No. 2916/2023 – Petitioner: M/s Greenko Sri Sai Krishna Hydro Power Energies Pvt. Ltd. – Respondents: State of Himachal Pradesh and others. Civil Writ Petition No. 3114/2023 – Petitioner: M/s Greenko Sumez Hydro Energies Pvt. Ltd. – Respondents: State of Himachal Pradesh and others. Civil Writ Petition No. 3115/2023 – Petitioner: M/s Greenko Hydro Pvt. Ltd. – Respondents: State of Himachal Pradesh and others. Civil Writ Petition No. 3116/2023 – Petitioner: M/s Greenko Cimaron Constructions Pvt. Ltd. – Respondents: State of Himachal Pradesh and others. Civil Writ Petition No. 3117/2023 – Petitioner: M/s Greenko Him Kailash Hydro Power Pvt. Ltd. – Respondents: State of Himachal Pradesh and others. Civil Writ Petition No. 3117/2023 – Petitioner: M/s Greenko Anubhav Hydel Power Pvt. Ltd. – Respondents: State of Himachal Pradesh and others. Civil Writ Petition No. 3130/2023 – Petitioner: JSW Hydro Energy Ltd. and others – Respondents: State of Himachal Pradesh and others. Civil Writ Petition No. 3246/2023 – Petitioner: Taranda Hydro Power Pvt. Ltd. – Respondents: State of Himachal Pradesh. Civil Writ Petition No. 3247/2023 – Petitioner: Panchhor Hydro Power Pvt. Ltd. – Respondents: State of Himachal Pradesh and others. Civil Writ Petition No. 3249/2023 – Petitioner: M/s Ramesh Hydro Power Pvt. Ltd. – Respondents: State. Civil Writ Petition No. 3260/2023 – Petitioner: M/s Kanchanjunga Power Company Pvt. Ltd. – Respondents: State of Himachal Pradesh and others. Civil Writ Petition No. 3300/2023 – Petitioner: Tissa Hydro Power Pvt. Ltd. – Respondents: State of Himachal Pradesh and others. Civil Writ Petition No. 3410/2023 – Petitioner: I.A. Hydro Energy Pvt. Ltd. – Respondents: State of Himachal Pradesh and others. Civil Writ Petition No. 3897/2023 – Petitioner: Rajpur Hydro Power Plant Ltd. – Respondents: State of Himachal Pradesh and others. Civil Writ Petition No. 3898/2023 – Petitioner: M/s Goodwill Energy Enterprises – Respondents: State of Himachal Pradesh and others. Civil Writ Petition No. 4105/2023 – Petitioner: Himachal Sorang Power Pvt. Ltd. – Respondents: State of Himachal Pradesh and others. Civil Writ Petition No. 4111/2023 – Petitioner: M/s Greenko Budhil Hydro Power Pvt. Ltd. – Respondents: State of Himachal Pradesh and others. Civil Writ Petition No. 4163/2023 – Petitioner: M/s Luni Power Company Pvt. Ltd. – Respondents: State of Himachal Pradesh and others. Civil Writ Petition No. 4239/2023 – Petitioner: Punjab State Power Corporation Ltd. – Respondents: State of Himachal Pradesh and others. Civil Writ Petition No. 5410/2023 – Petitioner: GMR Bajoli Hydro Power Ltd. – Respondents: State of Himachal Pradesh and others. Civil Writ Petition No. 7295/2023 – Petitioner: Prodigy Hydro Power Pvt. Ltd. – Respondents: State of Himachal Pradesh and others., Coram: The Honourable Mr. Justice Tarlok Singh Chauhan, Judge; The Honourable Mr. Justice Satyen Vaidya, Judge., For the petitioners: Mr. Tushar Mehta, Senior Advocate (through Vice Chairman) with Mr. Vijay Kumar Arora and Mr. Avneesh Arputham, Advocates, for the petitioner in Civil Writ Petition No. 2916 of 2023. Ms. Shalini Thakur and Dr. Seema Jain (through Vice Chairman), Advocates, for the petitioners in Civil Writ Petitions Nos. 2262 and 2263 and Ms. Shalini Thakur, Advocate, for the petitioner in Civil Writ Petition No. 2721 of 2023. Mr. S. Ganesh, Senior Advocate (through Vice Chairman) and Mr. Rajnish Maniktala, Senior Advocate with Mr. Naresh Kumar Verma, Advocate, for the petitioners in Civil Writ Petitions Nos. 2277 and 4111 of 2023. Mr. Vikas Chauhan, Mr. Vishwajeet Yagi, Mr. Tarun Johri and Mr. Sarthak Mehta, Advocates, for the petitioners in Civil Writ Petitions Nos. 2739, 2917 and 2918 of 2023. Mr. K.D. Shreedhar, Senior Advocate with Mr. Sameer Thakur, Ms. Sneh Bhimta and Mr. Adarsh Tripathi, Advocates, for the petitioners in Civil Writ Petitions Nos. 2855, 2913, 3083 to 3087, 3107, 3114 to 3117 and 3129. Mr. N.K. Sood, Senior Advocate with Mr. Aman Sood, Advocate, for the petitioners in Civil Writ Petitions Nos. 2864 and 3410 of 2023 together with Ms. Vandana Gupta, Senior Law Officer and Ms. Amandeep Kaur, Law Officer. Dr. Abhishek Manu Singhvi (through Vice Chairman) and Mr. R.L. Sood, Senior Advocates with Mr. H.S. Chandoke, Mr. Anant Garg and Mr. Janesh Gupta, Advocates, for the petitioner in Civil Writ Petition No. 3130 of 2023. Mr. Sujit Ghosh (through Vice Chairman), Mr. Nishant Kumar, Mr. Virender Sharma, Ms. Anshika Agarwal (through Vice Chairman) and Ms. Mannat Waraich, Advocates, for the petitioner in Civil Writ Petition No. 3260 of 2023. Mr. Tushar Mehta, Senior Advocate (through Vice Chairman) with Mr. K.D. Shreedhar, Senior Advocate, Ms. Shradha Karol, Mr. Vaibhav Singh Chauhan and Ms. Sneh Bhimta, Advocates, for the petitioners in Civil Writ Petition No. 2869. Ms. Shradha Karol and Mr. Vaibhav Singh Chauhan, Advocates, for the petitioners in Civil Writ Petitions Nos. 3897, 3898 and 4163 of 2023. Mr. Anand Sharma, Senior Advocate with Mr. Karan Sharma, Advocate, for the petitioner in Civil Writ Petition No. 4239. Mr. Ankur Sehgal and Mr. Janesh Gupta, Advocates, for the petitioner in Civil Writ Petition No. 5410 of 2023., For the respondents: Mr. Dushyant Dave, Senior Advocate, with Mr. Anup Rattan, Advocate General, Mr. I.N. Mehta and Mr. Yashwardhan Chauhan, Senior Additional Advocate Generals, Mr. Navlesh Verma and Ms. Sharmila Patial, Additional Advocate Generals and Mr. J.S. Guleria, Deputy Advocate General, for the State in all the matters. Mr. Balram Sharma, Deputy Solicitor General of India and Mr. Rajinder Thakur, Central Government Counsel, for the Union of India. Mr. Anand Sharma, Senior Advocate with Mr. Karan Sharma, Advocate, for respondent No. 14 in Civil Writ Petition No. 2855 of 2023 and for respondent No. 2869 of 2023. Ms. Sunita Sharma, Senior Advocate, with Ms. Lalita Sharma, Advocate, for respondent No. 6 in Civil Writ Petitions Nos. 2917 and 2918 of 2023 and for respondent No. 8 in Civil Writ Petition No. 2869. Mr. Nitin Thakur, Advocate, for respondent No. 7 in Civil Writ Petition No. 2855 of 2023 and for respondents No. 11 to 13 in Civil Writ Petition No. 2869 of 2023. M/s Satish Mukherjee, Abhishek Kumar, Nived, Shubham Mudgil and Mr. Janesh Gupta, Advocates, for respondent No. 11 in Civil Writ Petition No. 2855. Mr. Shivom Vashishta, Advocate, for respondent No. 14 in Civil Writ Petition No. 2855 of 2023 and respondent No. 6 in Civil Writ Petition No. 2869 of 2023., The petitioners are power generation companies engaged in the production of electricity by using river water. They own, operate and maintain the hydropower projects. After entering into agreements with the Government of Himachal Pradesh, they are running the projects. The petitioners seek to assail the legislative competence, the constitutional validity and the vires of the Himachal Pradesh Water Cess on Hydro Power Generation Act (hereinafter referred to as the Act) on the following grounds: (i) The State lacks legislative competence under Article 265 of the Constitution of India. (ii) The legislative powers of the Union and the State are demarcated by the Seventh Schedule; none of the entries in List II empower the State to levy a cess or tax on water usage for electricity generation. (iii) Entry 53 of List II empowers the State to levy tax on electricity but does not empower it to levy a cess on water usage for hydro electricity. (iv) Entry 17 of List II does not empower the State to levy a tax or cess on water, and even if it did, the Act would be invalid for non‑compliance with Article 288. (v) The Act vests in the State the right to non‑consumptive usage of water of inter‑state rivers, encroaching upon Union legislative powers under Entry 56 of List I. (vi) The petitioners’ hydroelectric projects are Central Sector projects on inter‑state rivers Ravi and Beas; any State restriction on water usage for such projects is beyond State competence. (vii) The Ministry of Power, by a letter dated 25.04.2023, called upon all State Governments not to levy such water tax/cess. (viii) Section 10 of the Act and Rule 7 of the Himachal Pradesh Water Cess from Hydro Power Generation Rules 2023 take away rights vested in the petitioners and have retrospective effect, which cannot take away vested rights. (ix) The Act requires both water draw and generation of electricity for cess; in substance the cess is on electricity generation, a field reserved for Parliament under Entries 84 and 97 of List I. (x) The Act violates Article 300A of the Constitution. (xi) The Act is not reserved for the consideration of the President under Article 288. (xii) Most of the rivers involved are inter‑state and fall under Entry 56 of List I, rendering State legislation invalid. (xiii) The Act is repugnant to Sections 62 and 79 of the Electricity Act, 2003, which vest tariff fixation with the Central Electricity Regulatory Commission. (xiv) The State lacks competence to levy tax/cess on water use for hydro electricity as the levy relates to power generated and transferred outside Himachal Pradesh. (xv) No public purpose is stated, and the Act has far‑reaching effects on the public. (xvi) The levy is arbitrary and violates Articles 14 and 19 because of extremely high rates rendering projects unviable. (xvii) The Act taxes the draw of water but in effect taxes electricity generation, which is impermissible. (xviii) The cess is based on the head of the turbine, linking it to electricity generation rather than water draw. (xix) No entry in List II empowers the State to tax electricity generation, making the enactment void ab initio. (xx) The taxable event is the draw of water for electricity generation, not mere water draw. (xxi) The Act suffers from excessive delegation and violates Article 14. (xxii) Lack of provision for personal hearing violates natural justice and Article 14. (xxiii) Section 30 of the Act contradicts Section 28. (xxiv) Absence of a judicial member in the commission exercising quasi‑judicial functions renders the Act invalid. (xxv) The Act contravenes the principle of promissory estoppel as the petitioners invested heavily on the basis that water would be freely available., Defence of the State: Water is a State subject under Entry 17 of List II, giving the State competence to legislate. The cess is levied on water usage under Entry 17, not on electricity generation under Entry 53. Entries 17, 18, 45, 49 and 50 of List II permit the State to impose tax on water. The levy is not on electricity generation or units. The cess on water usage for hydropower does not violate Article 288 because it is not a sale or purchase of water or electricity, nor does it fall under Entry 56 of List I. The Act does not infringe the Rivers Boards Act, 1956 or the Inter‑State River Water Disputes Act, 1956. The Act came into force with effect from 10.3.2023, requiring existing and forthcoming hydropower projects to pay water cess under Sections 10(1) and 10(2). Most projects were commissioned earlier, so project viability is not affected. The Act does not violate Article 300A. The petitioners do not have an exclusive right over water use; agreements with the Government of Himachal Pradesh allow the State to build, own, operate and maintain the projects. The Act does not violate Articles 14, 19 or 300A. The cess on non‑consumptive water use is in conformity with Entries 17, 18, 45, 48, 49 and 50 of List II. The State is competent to levy charges on water within its territory and the Act does not create any dispute concerning inter‑state rivers., Stand of the Union of India: The Union has filed an affidavit in Civil Writ Petition No. 5410/2023 (GMR Bajoli Hydro Power Ltd. vs State of Himachal Pradesh) questioning the State legislature's competence to enact the Act. The affidavit states that powers to levy taxes/duties are enumerated in the Seventh Schedule, List II, entries 45 to 63; any tax not specifically mentioned cannot be levied by the State. Entry 53 of List II authorises tax on consumption or sale of electricity but does not empower the State to tax generation of electricity. The State Legislature under List II lacks the power to impose tax on water drawn for electricity generation. Article 248 reserves to Parliament the power to make any law, including taxation, on matters not enumerated in the State List or Concurrent List, and Entry 97 of the Union List covers any other matter not enumerated in List II or III. No entry in the State List or Concurrent List pertains to taxation on water usage for electricity generation; therefore, the Act is unconstitutional and contravenes Articles 245, 246 and 286. The Act effectively imposes a tax on electricity generation, which is collected from consumers possibly residing in other States, violating Article 286. Entry 54 of List II contemplates tax on sale or purchase of goods other than newspapers, subject to Entry 92A of List I, which vests the Union with exclusive power to tax inter‑state sale of electricity. Articles 287 and 288 prohibit taxes on consumption or sale of electricity to the Central Government. Entry 56 of the Union List places regulation of inter‑state rivers under the Centre. Hence, the Act is void., Question arising for determination: The Court formulates the following points for consideration: (i) Whether the tax is actually on water or on electricity generation, making it a misnomer to call it a water tax. (ii) Whether the State Legislature is competent to enact the Act. (iii) Whether the Act contains a taxing provision or whether the tax was imposed by executive notification, making it an excessive delegation of power. (iv) Whether the principle of promissory estoppel applies, estopping the State from charging such a tax., Arguments of Mr. Tushar Mehta, Senior Advocate for the petitioners: The petitioners contend that for the State Legislature to levy any tax, the field must fall within Articles 246 and 248(2) of the Constitution and the taxing entry must be distinct. They argue that cess is a misnomer and is, in fact, a tax. They refer to Sections 2(c), 2(g), 2(h), 2(i), 3, 10, 12, 15, 17 and 34 of the Act and to the notification dated 16.02.2023, which prescribes different cess rates based on the available head, showing that the cess functions as a tax. They cite the Supreme Court judgment in Union of India and Another vs. Mohit Minerals Private Limited, which distinguishes tax, fee and cess. They rely on constitutional provisions including Articles 265, 286, Entries 42, 56, 84, 92A, 97 of List I, and Entries 7, 17, 18, 45, 48, 49, 53 of List II, and Entry 38 of List III, arguing that Article 286 deals with supply of goods outside the State and that electricity is a good supplied outside the State, rendering the State's enactment incompetent.
id_1382	1	It is argued that, taking the case of the State at its best, the tax has been imposed under the residuary powers, but such power is not vested with the State and rather is expressly and exclusively vested in the Union of India under entry 97 of List I of the Seventh Schedule. The reliance placed by the State on entry No. 17 of List II is of no avail as a tax entry must be specific in any one of the lists and cannot be inferred. Under this provision the State can only regulate water but cannot tax it, for it is not a taxing entry. The State cannot fall back on entry No. 51 as it does not pertain to electricity. Regarding entry No. 38 of List III, the concurrent list, the State can only regulate electricity but cannot tax it; a specific constitutional provision is required. The State also cannot rely on entry No. 47, as there must be a quid pro quo for being termed a fee, not a tax. To buttress these arguments, the learned counsel referred to a letter dated 25 April 2023 issued by the Union of India, vehemently arguing that the State is not competent to impose water tax and cess., The relevant portion of the letter reads: It has come to the notice of the Government of India that some State Governments have imposed taxes and duties on generation of electricity. This is illegal and unconstitutional. Any tax or duty on generation of electricity, which encompasses all types of generation viz. thermal, hydro, wind, solar, nuclear, etc., is illegal and unconstitutional. The constitutional provisions are as follows: The powers to levy taxes and duties are specifically stated in the Seventh Schedule. List II of the Seventh Schedule lists the powers of levying taxes and duties by the States in entries 45 to 63. No taxes or duties which have not been specifically mentioned in this list can be levied by the State Governments under any guise whatsoever as residuary powers are with the Central Government. Entry 53 of List II authorises the States to put taxes on consumption or sale of electricity in its jurisdiction. This does not include the power to impose any tax or duty on the generation of electricity because electricity generated within the territory of one State may be consumed in other States and no State has the power to levy taxes or duties on residents of other States. Some States have imposed taxes or duties on generation of electricity under the guise of levying a cess on the use of water for generating electricity. However, though the State may call it a water cess, it is actually a tax on the generation of electricity collected from the consumers of electricity who may be residents in other States. Article 286 of the Constitution explicitly prohibits States from imposing any taxes or duties on supply of goods or services or on both where the supply takes place outside the State. Articles 287 and 288 prohibit the imposition of taxes on consumption or sale of electricity consumed by the Central Government or sold to the Central Government for consumption by the Government or its agencies. As per Entry 56 of the Union List, regulations of issues related to inter‑state rivers come under the purview of the Centre. Most hydro‑electric plants in the States are located or proposed to be developed on inter‑state rivers. Any imposition of tax on the non‑consumptive use of water of these rivers for electricity generation is in violation of the Constitution. Hydro power projects do not consume water to produce electricity; electricity is generated by directing the flow of water through a turbine, similar to wind projects where wind turns the turbine. Therefore, there is no rationale for levy of “water cess” or “air cess”. The levy of water cess is against the provisions of the Constitution. Entry 17 of List II does not authorise the State to levy any tax or duty on water., In light of the above constitutional provisions, no taxes or duties may be levied by any State under any guise on generation of electricity and if any taxes or duties have been so levied, they may be promptly struck down. The Union Minister of Power and New and Renewable Energy has approved this position. It is further urged that before executing the projects, the projects entered into power purchase agreements under which they are obliged to give twelve percent electricity free of cost to the State Government and one percent towards rehabilitation, making them liable to give thirteen percent of the electricity generated free of cost to the State Government; therefore, the State Government is estopped from levying such tax., Dr. Abhishek Manu Singhvi, learned Senior Advocate for some of the petitioners, argued that the State has no source of power to enact the Act and, in terms of article 265, there can be no taxation without authority. He further urged that taxation cannot be general but must be under a specific entry in the Constitution of India and that the impugned Act, in substance, is a tax on generation of electricity and not on draw of water, thereby defying the federal concept and structure of the Constitution and should be struck down. He also referred to the objects and reasons of the Act and argued that even financial demands of the State must be legitimate., The learned Attorney General contested the State’s claim in enacting the Act and, apart from relying upon the reply filed on behalf of the Union of India, sought support from the notification dated 16 February 2023 issued by the Ministry of Power, Government of India. He argued that the Seventh Schedule provides for substantive regulatory law and the taxing power separately; the taxing power cannot be inferred or imposed by implication. He invited the Himachal Pradesh High Court’s attention to entry No. 17 of List II, urging that this entry only regulates the power of the State Government with respect to water and does not permit the imposition of tax. Entry No. 17 cannot be read expansively to include a power to impose tax. He further invited attention to entry No. 53 of the same list, contending that entries 17 and 53 must be read independently and that an equitable construction is not permissible in a taxing statute. Moreover, entry No. 53’s provision for sale of electricity cannot be construed as covering generation of electricity, just as sale of coal does not include generation of electricity from coal., Mr. Surjit Ghosh, Advocate, adopted the arguments of the senior counsel and assailed the provisions of the Act as unconstitutional, referring to Section 15. He argued that delegating the power to determine the rate of tax to the State Government without laying down any guidelines, limitations or safeguards results in excessive delegation, violating Article 14 and rendering the provision void. He further contended that the Act fails to specify one of the essential components of a taxing statute – the measure or value on which the rate will be applied – even though the taxable event, the person liable, and the rate are identified. Section 15 provides that the user shall pay the water cess at rates fixed by the Government but does not prescribe the value or base for the rate. He also argued that adjudication of disputes does not provide an opportunity for personal hearing, violating natural justice and Article 14. He maintained that Section 30 contradicts Section 28 and is therefore bad in law, and that the absence of a judicial member in quasi‑judicial proceedings renders such proceedings invalid., Mr. Naresh K. Sood, Senior Advocate, representing the petitioners in CWP Nos. 2864/2023 and 34, argued that the Bhakra Beas Management Board was created after the Punjab Reorganisation Act and has filed a representation against the impugned levy. Until such representation is decided, the State cannot levy any cess., The learned Senior Counsel for the petitioner contended that the respondents had no power to impose a cess on the Shanan Power Project, as the project has existed and been operating for nearly a century., Mr. K.D. Shreedhar and Mr. Rajnish Maniktala, Senior Advocates, fully supported the arguments of other senior counsel and advanced independent arguments assailing the State’s competence to enact the impugned Act. They urged that before the amendment of Entry 84 of List I of the Seventh Schedule in 2016, electricity was specifically held to be a good within the meaning of that entry and only Parliament could levy tax on generation of electricity. After the amendment, generation of electricity can be taxed only under the residual powers conferred upon Parliament under List I. They placed strong reliance on the Supreme Court judgment in M.P. Cement Manufacturers Association v. State of Madhya Pradesh, which has been followed by the Jammu and Kashmir High Court in National Hydroelectric Power Corporation Limited v. State of Jammu and Kashmir and by the Guwahati High Court in Bharti Airtel Limited v. State of Assam., Dr. Seema Jain, Advocate, argued that the State has no legislative competence to enact the law as there is no entry in the State List that empowers the State to impose a tax or cess on generation of electricity., Mr. Tarun Johri, Advocate, representing an association of Small Hydro Power Developers with projects of 25 MW capacity, submitted that the financial impact of the water cess under the Act is approximately forty‑three percent of total revenue earned by such projects in a financial year, which would place the clients in financial distress and estop the State from enacting and implementing the legislation., The Advocate General for the State of Himachal Pradesh argued that the object of the Act is to conserve water and its management as well as to generate revenue from alternate resources. He contended that the petitioners are unnecessarily trying to confuse the issue by arguing that the cess has been imposed on generation of electricity and not on water drawn for non‑consumptive use. He referred to the provisions of the Act, particularly Sections 2(c), 2(g), 2(h), 2(i), 2(j), 3, 5, 6, 7, 8, 10 and 12, and argued that the petitioners are liable to pay cess on the water drawn as users. The State Government has clarified that it has imposed cess on water drawn for use in hydropower generation under the Seventh Schedule. The State submitted that entries 17 and 18 are general entries concerning the field of legislation of the State Assembly; entries 45 to 50 provide for the field of legislation for imposing cess or tax, while entry 66 deals with fee. The Act falls within entry 49 (Lands and Buildings) of List II as water is covered under “land” being in and over the land, and also within entry 50 as water is a mineral, giving the State the right to tax. The income generated from water is land revenue under entry 45. The mode of calculation does not determine the nature of the cess. There are no structural defects in the statute, and public interest prevails over private interest., Mr. Dushyant Dave, learned Senior Advocate for the State of Himachal Pradesh, argued that water used for generation of electricity belongs to the State and that the State’s right to use water has been unequivocally acknowledged. Since water falls in List II of the Seventh Schedule, the State is within its power to levy fee, cess or tax on such water or its non‑consumptive use. He referred to Sections 3 and 10 of the Act to show that the cess is on water drawn, not on generation of electricity, which is the pith and substance of the Act. He maintained that the Act is prospective, not retrospective, and therefore the petitioners’ prayer for a declaration that the Act is beyond the State’s legislative competence under Articles 245 and 246 should fail. He emphasized that under Article 245 and Article 246, the State has exclusive power to frame laws regarding List II and that entry 17 of List II confers ancillary power, without impinging upon entry 56 of List I. He cited entry 18, stating that land includes water beneath or under land, and entry 49, which empowers the State to tax land and buildings. He also noted that entry 66, dealing with fees, can be invoked for a cess. He argued that the State’s limited resources justify exploiting its natural resources, and that financial burden on consumers does not invalidate the legislation. He relied on Supreme Court judgments in Navinchandra Mafatlal v. Commissioner of Income Tax, Calcutta Gas Co. (Proprietary) Ltd. v. State of West Bengal, Raja Jagannath Baksh Singh v. State of Uttar Pradesh, Khyerbari Tea Co. Ltd. v. State of Assam, The Anant Mills Co. Ltd. v. State of Gujarat, Government of Andhra Pradesh v. Hindustan Machine Tools Ltd., M/s Hoechst Pharmaceuticals Ltd. v. State of Bihar, Ichchapur Industrial Coop. Society Ltd. v. Competent Authority, ONGC, R.S. Rekhchand Mohota Spinning & Weaving Mills Ltd. v. State of Maharashtra, State of West Bengal v. Kesoram Industries Ltd., and Government (NCT of Delhi) v. Union of India. He concluded that the cess is on water and generation of electricity is merely a measure, and that the federal structure requires financial independence of the State., The discussion on interpretation of law notes that a Constitution Bench of the Supreme Court in Navinchandra Mafatlal v. Commissioner of Income Tax held that entries in the Seventh Schedule should not be read narrowly; each general word should extend to all ancillary or subsidiary matters that can fairly be said to be comprehended. The widest possible construction must be applied to words in a constitutional enactment conferring legislative power. The Calcutta Gas Co. (Proprietary) Ltd. v. State of West Bengal Bench observed that attempts should be made to harmonise apparently conflicting entries of different lists and reject constructions that render an entry nugatory. The Raja Jagannath Baksh Singh v. State of Uttar Pradesh Bench reiterated that words conferring legislative power must receive the most liberal construction. The Khyerbari Tea Co. Ltd. v. State of Assam Bench held that when a power to levy a tax is conferred, it must be widely construed to include the power to select commodities, fix rates, and prescribe recovery machinery, as well as to prevent tax evasion., The nature and event of taxation under the impugned Act: The Statement of Objects and Reasons states that Himachal Pradesh is blessed with immense water resources of five major rivers – Satluj, Beas, Ravi, Chenab and Yamuna – which are used for generation of hydropower. The State spends a huge amount of money on water conservation, water management, and environmental and social impact mitigation. Development activities around hydropower projects increase the livelihood of the concerned people. However, the State has very limited revenue generation resources and constantly faces financial constraints.
id_1382	2	Hence, there is an urgent need to improve the revenue generation in the State through alternate revenue resources. Flowing water in various rivers and its tributaries in the State can be a useful source of revenue generation. The neighbouring State Uttarakhand and the Union Territory Jammu & Kashmir have already imposed the water cess on hydropower generation. On the same analogy the State Government has decided to introduce such policy and also opt to impose the water cess to increase the revenue of the State. The water cess on hydropower generation will be imposed based on consumption of water and head available in the project, which is considered the difference in the level at entry and exit of the water conductor system. At present 172 hydropower projects, with installed capacity of 10,991 MW, have been commissioned in the State. In order to deal with the situation of serious financial constraints in High Court of Himachal Pradesh the State, it has been decided to make the provision to create additional financial resources by imposing water cess on hydropower generation. Since the Himachal Pradesh Legislative Assembly was not in session and the issue to create alternate revenue resources of the State could not be prolonged, keeping in view the urgency and importance of the matter, the Governor, Himachal Pradesh, by invoking powers under clause (1) of article 213 of the Constitution of India promulgated the Himachal Pradesh Water Cess on Hydropower Generation Ordinance, 2023 (Ordinance No. 2 of 2023) on 15.02.2023 which was published in Rajpatra (e Gazette) on the same day. Now, this Ordinance is required to be replaced by a regular enactment. This Bill seeks to replace the aforesaid ordinance with some modifications and to achieve the aforesaid objectives., The Preamble to the Act provides to levy water cess on hydropower generation in the State of Himachal Pradesh. The name of the Act is The Himachal Pradesh Water Cess on Hydropower Generation Act, 2023. Section 2 is the definition clause and some of its sub‑sections are as follows: hydropower means a renewable source of energy that generates power by using water drawn from any water source flowing within the territory of the State; user means any person, group of persons, local body, government department, company, corporation, society or anybody, by whichever name called, drawing water from any source for generation of hydropower; water means natural resource flowing in any river, stream, tributary, canal, nallah or any other natural course of water or stipulated upon the surface of any land such as pond, lagoon, swamp or spring; water cess means the rate levied or charged for water drawn for generation of hydropower and fixed under this Act; water source means a river and its tributaries, stream, nallah, canal, spring, pond, lake, water course or any other source from which water is drawn to generate hydropower., Section 3 provides installation of scheme for usage of water and reads as follows: Installation of scheme for usage of water – a user shall draw water from any source for hydropower generation only in accordance with this Act., Section 8 deals with grant of registration certificate and reads as follows: Grant of registration certificate – a user intending to use water (non‑consumptive use) for generation of hydropower shall be issued a registration certificate after the execution of an agreement between the user and the Commission under this Act., Section 10 deals with the duties, obligations and responsibilities of the registered user and reads as follows: (1) The registered user shall be liable to pay water cess for the water drawn for hydropower generation as per the provisions of this Act. (2) Where any user has constructed a hydropower scheme for the purpose of generation of hydropower prior to the commencement of this Act, such user shall, within a period of one month from the date of commencement of this Act, apply for registration and the Commission shall pass an order to register the user within a period of one month from the date of receipt of application in accordance with the provisions of this Act. (3) If the user mentioned in sub‑section (2) fails to apply for registration within the time stipulated, the Commission shall forthwith impose water cess without registration on the basis of data of water usage provided by the Directorate of Energy, Himachal Pradesh from the date of commencement of this Act, along with a suitable penalty which may extend to rupees ten lakh and, in case of prolonged default, an additional fine which may extend to rupees five thousand for every day. (4) Every registered user shall be under an obligation to ensure the safety of the life and property of inhabitants of the area by the operation of the scheme. (5) Every registered user shall be bound to allow the Commission or any other officer authorised by the Commission to have access at any time to the scheme for their satisfaction with regard to compliance of the provisions of this Act., Section 12 provides for assessment of water drawn by the user and reads as follows: (1) The Commission shall install or cause to be installed a flow‑measuring device as per the specifications approved by the Commission within the premises of the scheme or at such other place where the Commission deems fit for measuring the water drawn for hydropower generation, or may adopt any indirect method for assessment of water drawn by the user. (2) The expenditure incurred on such installation shall be payable by the user., Chapter IV deals with Water Cess and Section 15 is the charging section which reads as follows: (1) The user shall be liable to pay the water cess at such rates as the Government may, by notification, fix in this behalf. (2) The State Government may review, increase, decrease or vary the rates of the water cess fixed under this section from time to time in the manner it deems fit., The procedure for assessment is provided in Section 17 and reads as follows: (1) The assessment of water drawn by the user for hydropower generation and computation of water cess thereof shall be carried out by the Commission. (2) The user shall pay the water cess as assessed under sub‑section (1) within such time as may be specified by the Commission. (3) If any user fails to pay water cess due on him, a penalty shall be imposed on the user as determined by the Commission. The user has to pay water cess along with penalty within the extended time as may be prescribed., It would be noticed that in the Statement of Objects and Reasons of the impugned Act it was stated that the State Government has decided to introduce such policy and also opt to impose water cess to increase the revenue of the State. The water cess on hydropower generation will be imposed based on consumption of water and head available in the project, which is considered the difference in level at entry and exit of the water conductor system. As per Section 10(i) of the Act every registered user is liable to pay water cess for the water drawn for hydropower generation. As per Section 12 the Commission shall install flow‑measuring devices within the premises of the scheme or may adopt any other indirect method for assessment of water drawn by the user. As per Section 15 the user is liable to pay water cess at such rates that have been fixed by the Government as per the Notification and Section 16 provides for its recovery. Under Section 17, based on such assessment of water drawn by the user, computation of water cess is carried out., It is well settled that taxation under the Seventh Schedule to the Constitution may be with respect to an object or an event or both. From the Preamble as well as the various provisions of the impugned Act extracted above, it is evident that the impugned levy has not been imposed on water but on a single inextricable event – water drawn for hydropower generation. This is because there can be no electricity generation by a hydropower project without drawl of water; in the absence of generation of electricity, no levy or cess is imposed., The tariff of the water cess has been set out in the notification dated 16.02.2023, which is extracted below: Government of Himachal Pradesh, Jal Shakti Vibhag, 1/2022, Dated Shimla 171002. The Governor, Himachal Pradesh, in exercise of powers vested in him under Section 17(1) of the Himachal Pradesh Water Cess on Hydropower Generation Ordinance, 2023 (Ordinance No. 2 of 2023), is pleased to order the imposition of water cess on all hydropower projects in the State of Himachal Pradesh for use of water for power generation on the following rates: Head – Tariff: For hydropower projects with head up to 30 metres Rs.0.10 per metre; for head above 30 metres and up to 60 metres Rs.0.25 per metre; for head above 60 metres to 90 metres Rs.0.35 per metre; for head above 90 metres Rs.0.50 per metre. This shall come into force with immediate effect. Amitabh Avasthi, Secretary (Jal Shakti Vibhag), Government of Himachal Pradesh., It is clearly evident from the aforesaid Notification that the State Government has calibrated the cess keeping in view the potentiality of the water, i.e., the greater the height from which the water falls on the turbine, the greater the momentum resulting in electricity generation. Therefore, it is not essentially the quantum of water but the head height that has been taken into consideration while fixing the rate of levy. In other words, the power to tax is on generation of electricity and use of water is only incidental. The user of water is not being taxed; only the user of water for generation of electricity is taxed on the generation of electricity. If the quantum of water used were the basis, the height from which the water falls would be irrelevant. The notification dated 16.02.2023 shows that the quantification is based on the height from which the water falls, not on the volume of water used. The taxable event is hydropower generation, not the usage of water, because without generation there is no tax., Moreover, if the cess were on usage of water, the height at which the water falls on the turbine could not be made the taxable event. It is a settled principle of law that the standard adopted as a measure of levy, although not determinative, is at least indicative of the nature of the tax. Weighed along with other relevant circumstances, the method adopted by the legislature is relevant in determining the character of the impost. To be a valid basis, the measure of the levy must maintain a nexus with the essential character, as held by the Hon'ble Supreme Court in State of West Bengal v. Kesoram Industries Ltd. (paras 33 and 38)., We now proceed to a deeper dimension in tax legislation by considering the problem of devising the measure of taxation. This aspect has been dealt with in detail in Union of India and Ors. v. Bombay Tyre International Ltd. The Court has observed that the measure employed for assessing a tax must not be confused with the nature of the tax. A tax has two elements: the person, thing or activity on which the tax is imposed, and the amount of tax. The amount may be measured in many ways, but a distinction between the subject matter of a tax and the standard by which the amount is measured must not be lost sight of. The standard adopted as a measure of the levy may be indicative of the nature of the tax, but it does not necessarily determine it. In Hingir Rampur Coal Co. Ltd. v. State of Orissa (1961) 2 SCR 537, the form in which the levy was imposed was held to be an impermissible test for defining the character of the levy. The Court held that the method adopted may be relevant in considering the character of the levy but its effect must be weighed along with other relevant circumstances. Referring to Bombay Tyre International Ltd., the Court further held that the Legislature need not contour a measure to spell out the character of the levy itself; a broader standard of reference is permissible, provided it maintains a nexus with the essential character of the levy., Applying the aforesaid principles to the instant case, it is evident that the impugned levy varies in quantum with the electricity generated but not with the quantum of water drawn, making clear that its character is inextricably linked with electricity generation. Accordingly, we answer Point No. 1 in favour of the petitioners, concluding that the cess is imposed on generation of electricity, not on water, and therefore it is not a water tax., Point No. 2: At the outset, it is necessary to observe that the 'pith and substance' of the taxing legislation assumes significance in examining the competence of the legislature, not the question of bonafides or malafides. The State may purport to act within its powers, yet in substance may transgress them, the transgression being veiled by a mere pretense., Pith and Substance: In determining whether an enactment is legislation with respect to the given power, the relevant enquiry is whether, in its pith and substance, it is law upon the subject matter in question. Hence, the impugned Act must be subjected to the pith and substance test to ascertain its true intent and character, which is relevant for determining the appropriate list and the State's competence. Article 265 provides that no tax can be levied or collected except by authority of law. The State contends that competence can be traced to Entry 49 of List II to the Seventh Schedule of the Constitution, which provides for taxes on lands and buildings., The State relied on Anant Mills Co. Ltd. v. State of Gujarat, where the Supreme Court held that the word 'land' includes not only the surface but everything under or over it, thereby allowing taxes on water supplied to premises. However, the levy on water drawn for hydropower generation does not satisfy the twin conditions of Entry 49: it is not a tax directly on lands or buildings, nor does it bear a definite relation to land. The levy is on a user for the event of water drawl for hydropower generation, which has no relation to land., Furthermore, Section 15 of the impugned Act indicates that the tax is on the registered user, i.e., it is personal. Section 2(g) defines user as any person, group of persons, local body, government department, company, corporation, society or anybody drawing water from any source for generation of hydropower. Thus, the tax is on persons (natural or juristic) and not on lands or buildings., Therefore, the State's reliance on the judgment in Anant Mills is misplaced. Even otherwise, the expression 'land' cannot be logically interpreted to mean everything above and below it, as that would subsume all other entries in the Seventh Schedule., Some entries in List I that are connected to land and buildings and would be rendered otiose by a wide interpretation include: Entry 7 (defence or prosecution of war); Entry 22; Entry 23 (national highways); Entry 24 (national waterways for mechanically propelled vessels); Entry 26 (beacons and safety of shipping and aircraft); Entry 29 (navigation, aerodromes, air traffic regulation, aeronautical education); Entry 53 (taxation and development of oilfields and mineral oil resources, petroleum products, other dangerous liquids); Entry 87 (other than agricultural land); Entry 88 (property other than agricultural land); and entries relating to railway, sea or air transport and taxes on fares and freight., It is well settled that while the widest amplitude should be given to the language used in one entry, every attempt must be made to harmonise its contents with those of other entries so that the latter are not rendered nugatory. This principle was reiterated by the Supreme Court in Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal, which held that the entries in the three lists are only legislative heads and that overlapping entries must be reconciled to maintain harmony., The Supreme Court in Rajendra Diwan v. Pradeep Kumar Ranibala affirmed that the widest amplitude should be given to the language of an entry, but harmony with other entries must be preserved., The State contends that competence can be traced to Entry 50 of List II, which provides for taxes on mineral rights subject to parliamentary limitations. However, the activity of non‑consumptive drawl of water for hydropower, where the water returns to its source, cannot be brought under the purview of taxing mineral rights., The State also relied on Ichchapur Industrial Coop. Society Ltd. v. Competent Authority, Oil & Natural Gas Commission, arguing that water is a mineral and therefore taxable. The Supreme Court clarified that the term 'minerals' was interpreted only for the Petroleum & Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962, based on the definition in the Mines Act, 1952. That ratio cannot be extended to the present case because the Mines Act was enacted after the Constitution and its definition cannot be read into constitutional entries. Moreover, judgments must be applied in their proper context., The Supreme Court in Godfrey Philips India Ltd. & Anr. v. State observed that the meaning of a word in a constitutional entry must be derived from the language of the entry itself, taking into account the constitutional scheme for taxation and revenue collection., In view of the above discussion, even Entry 50 of List II cannot be held to support State taxation on water drawl for generation of electricity., The State also argues competence under Entry 45 of List II, which provides for land revenue, including assessment and collection of revenue, maintenance of land records, and survey for revenue purposes. The State relies on the Supreme Court decision in Mills Ltd. v. State of Maharashtra, where Maharashtra imposed a water cess on non‑agricultural use of flowing water from River Wana under Section 70 of the Maharashtra Land Revenue Code, 1966. However, a comparative analysis shows that the present case involves a levy on a user for electricity generation, not a land‑revenue measure, and therefore Entry 45 does not confer competence.
id_1382	3	Section 2(i) defines water cess as the rate levied or charged for water drawn for generation of hydropower and fixed under this Act. Section 10 deals with the duties, obligations and responsibilities of the registered user: the registered user shall be liable to pay water cess for the water drawn for hydropower generation as per the provisions of this Act. Section 15 of the Act 2023 pertains to the fixation of water cess: (1) The user shall be liable to pay the water cess at such rates as the Government may, by notification, fix in this behalf. (2) The State Government may review, increase, decrease or vary the rates of the water cess fixed under this section from time to time in the manner it deems fit., Resolution Notification for non‑agricultural purpose rates: Industrial purpose – Rs.12.50 per unit for the first two years, Rs.12.50 for the third and fourth year, Rs.12.50 for the fifth and subsequent year. For hydroelectric projects with head up to 30 metres – Rs.0.10 per unit. For hydroelectric projects with head above 30 metres and up to 60 metres – Rs.0.25 per unit. For hydroelectric projects with head above 60 metres and up to 90 metres – Rs.0.35 per unit. For hydroelectric projects with head above 90 metres – Rs.0.50 per unit. Domestic use (i.e., for drinking water) – Nil., In the Rekchand case (supra), the levy was imposed on the drawal of flowing water by artificial contrivance for industrial purpose and the rates of such levy were specified under a resolution. The levy was sustained by the Hon'ble Supreme Court under Entry 45, List II because the definition of land under the Transfer of Property Act, 1882 included the right to water flowing therefrom. In the present cases, the levy is imposed on electricity generation and supply, which are inseparable parts of the single event taxed under the impugned Act, i.e., water drawn for hydropower generation, a matter beyond the State's competence. The definition of water source appears to have been altered to include generation of electricity, as the levy is based on head height rather than the volume of water drawn., Paragraph 12 of Rekchand's case (supra) refers to other Supreme Court judgments concerning Entry 49, List II, which require (i) the tax to be directly imposed on land and (ii) a nexus between the levy and the land. The State's competence to promulgate the impugned Act cannot be traced to Entry 49, List II, nor to Entry 45, List II. The State attempts to rely on Entries 17 and 18 read with Entry 66 of List II. Entry 17 deals with water supplies, irrigation, canals, drainage, embankments, water storage and water power subject to Entry 56, List I. Entry 18 deals with land, land tenures, landlord‑tenant relations, collection of rents, transfer and alienation of agricultural land, land improvement, agricultural loans and colonisation. Entry 66 provides for fees in respect of matters in the List, excluding court fees., The State has relied on Entries 17 and 18 of List II to demonstrate competence to legislate the impugned Act. However, taxation entries are distinct from general regulatory entries. Entries 1 to 44 in List II are regulatory, whereas Entries 45 to 63 are taxing. Therefore, the legislative competence to impose any tax on water drawn for hydropower generation cannot be based on regulatory entries 17 and 18. The Hon'ble Supreme Court in M.P.V. Sundararamier & Co. vs. State of Andhra Pradesh (para 51) explained that in List I, Entries I to 81 enumerate subjects of legislation, while Entries 82 to 92 enumerate taxes. A similar separation exists in List II, where Entries 1 to 44 enumerate subjects and Entries 45 to 63 enumerate taxes. This scheme shows that taxation is a distinct matter for legislative competence., The distinction between general subjects of legislation and taxation is also reflected in Article 248(1) and (2) and Entry 97, List I of the Constitution. Interpreting Entry 42 in this scheme, the power of Parliament to legislate on inter‑state trade and commerce does not include a power to impose a tax on sales in the course of such trade. The Supreme Court in Hoechst Pharmaceuticals Ltd. & Ors. vs. State of Bihar observed that there is a clear separation between general subjects of legislation and taxation, with taxation placed in a separate group of entries., Considering the charging provision, the taxable event and the nature of the levy under the impugned Act, it is clear that the Act imposes tax on generation of electricity and not merely on water or its drawal, a matter beyond the State's competence. It also imposes an inter‑state tax on inter‑state supply of electricity, another field in which the State lacks competence., The State argues that the impugned levy can be justified as a fee under Entries 17, 18 and 66 of List II. However, the State lacks competence to levy the cess as a fee. The entire field of legislation concerning water power/hydropower projects is occupied by Parliament under the Electricity Act, 2003. A fee may be imposed only where there is a quid pro quo – services rendered by the State and a corresponding benefit to the payers. In the present case, no services were rendered to the hydropower plants, and the alleged services cannot be distinguished from general public services. Moreover, the cess does not go into a separate earmarked fund; it goes into the consolidated fund like a tax, not a fee., The scope of the State's power to impose a tax on land, under Entry 18, List II, defines land as rights in or over land, land tenures, landlord‑tenant relations, collection of rents, transfer and alienation of agricultural land, land improvement and agricultural loans, colonisation. This definition does not contemplate a river or flowing water as part of land. Hence, the State lacks competence to tax water drawal for hydropower generation., The State's reliance on the judgment of the Supreme Court in State of West Bengal vs. Kesoram Industries is misplaced, as that judgment has not attained finality and is pending before a nine‑Judge Constitution Bench. Since the cess is imposed on generation of electricity rather than on water drawal, only the Central Government can levy tax on electricity generation. The Supreme Court in M.P. Cement Manufacturers' case examined Entry 84, List I and Entry 53, List II, holding that the State has competence only to tax the sale and consumption of electricity, not its generation., Section 15 of the impugned Act fixes the water cess rate by notification of the Government of Himachal Pradesh, and Section 15(2) empowers the State Government to review, increase, decrease or vary the rate without any guidance. Delegation of such essential legislative power without guidance is invalid, as held by the Supreme Court in The Corporation of Calcutta & Another vs. Liberty Cinema (paras 21‑26). The Court observed that fixing the amount of a tax is an essential feature of legislation and cannot be left entirely to an executive authority without legislative policy or standards. Subsequent judgments, including Pandit Banarsi Das Bhanot v. State of Madhya Pradesh, Powell v. Appollo Candle Co. Ltd., Syed Mohamed v. State of Madras and Hampton Jr. & Co. v. United States, support the principle that fixation of tax rates may be delegated only if the legislature provides adequate guidance, such as maximum rates, policy statements or standards. The impugned Act provides only a maximum rate and no substantive guidance, rendering the delegation excessive, as affirmed by the Supreme Court in Gwalior Rayon Silk Mfg (Wvg.) Co. Ltd. vs. Assistant Commissioner of Sales Tax., A valid taxing statute must specify four essential components: (i) the taxable event, (ii) the person liable to pay, (iii) the rate of tax, and (iv) the measure of value to which the rate is applied. The impugned Act fails to lay down the measure of tax, and therefore suffers from the vice of excessive delegation and is unconstitutional.
id_1382	4	The Supreme Court of India, in Messrs Govind Saran Ganga Saran versus Commissioner of Sales Tax and others, observed that the components which enter into the concept of a tax are well known., The first component is the character of the imposition known by its nature which prescribes the taxable event attracting the levy; the second is a clear indication of the person on whom the levy is imposed and who is obliged to pay the tax; the third is the rate at which the tax is imposed; and the fourth is the measure or value to which the rate will be applied for computing the tax liability., If those components are not clearly and definitely ascertainable, it is difficult to say that the levy exists in point of law. Any uncertainty or vagueness in the legislative scheme defining any of those components of the levy will be fatal to its validity., In the instant case, three essential components can be clearly identified within the impugned statute – taxable events, the person liable to pay tax and the rate of tax. However, the impugned legislation fails to identify the fourth and equally critical component, namely the measure of tax, which is the value on which the rate of tax will be applied for computing the tax liability., Section 15 of the impugned Act provides that the user shall be liable to pay water cess at such rates fixed by the Government, but it fails to prescribe the value based on which such rates will be applied., It was in exercise of powers vested under Section 15(2) of the impugned Act that the State Government issued a Notification dated 26 August 2023, whereby the tariff structure on water cess was fixed on the basis of head. However, even that notification failed to prescribe the measure of tax and instead proceeded to prescribe tariff rates without any indication of the measure on which such tariff rates will be applied., Moreover, the measure of tax being vague, the High Court of Himachal Pradesh, based upon the assessment of water drawn, which would form the basis of the tax imposed, is also vague and fraught with lack of adequate guidelines, as is evident from the combined reading of Section 12 with Section 17 of the impugned legislation., The preamble of the impugned Act merely states that it is an act to levy water cess on hydropower generation in the State of Himachal Pradesh, and the Statement of Objects and Reasons merely states that the objective of the impugned Act is revenue generation. Therefore, on account of having delegated power to fix rates of the impugned levy to the Government of Himachal Pradesh without any legislative policy or guidance, the impugned Act is unconstitutional., Consequently, the petition is answered in favour of the petitioners., Promissory estoppel: In view of the foregoing discussion, the question of promissory estoppel is rendered academic and therefore need not be answered., Conclusion: All the writ petitions are allowed in the following terms. The provisions of the Himachal Pradesh Water Cess on Hydropower Electricity Generation Act are declared to be beyond the legislative competence of the State Government in terms of Articles 24 and 2 of the Constitution of India and, thus, ultra vires the Constitution. Consequently, the Himachal Pradesh Water Cess on Hydropower Electricity Generation Rules are also quashed and set aside. Sections 10 and 15 of the Himachal Pradesh Water Cess on Hydropower Electricity Generation Act, 2023, as have been made applicable to the existing projects, are also declared ultra vires the Constitution and are accordingly quashed and set aside., The amount, if any, recovered by the respondents from the petitioners under the provisions of the Himachal Pradesh Water Cess on Hydropower Electricity Generation Act, 2023 and the Rules framed thereunder is ordered to be refunded within four weeks from today. The letter or notice issued by the State Government or Himachal Pradesh State Commission for Water Cess on hydropower generation pursuant to the impugned Act and Rules seeking recovery of water cess from the petitioners is declared illegal and is accordingly quashed and set aside. All pending miscellaneous applications shall also stand disposed of., Tarlok Singh Chauhan, Judge; Satyen Vaidya, Judge.
id_1386	0	PIL No. 2/2022 Date of order: 07.02.2023 In Re: (Suo motu): Illegal mining versus State of Meghalaya of coal in the State of Meghalaya Coram: Honorable Justice Sanjib Banerjee, Chief Justice; Honorable Justice H. S. Thangkhiew, Judge; Honorable Justice W. Diengdoh, Judge. For the Petitioner: For the Respondents: Mr. A. Kumar, Advocate General with Dr. N. Mozika, Additional Solicitor General with Ms. A. Pradhan, Advocate, Mr. M. Z. Ahmed, Senior Advocate with Mrs. B. Dutta, Senior Advocate, Mr. N. Syngkon, Advocate., There are two parts to this matter: the continued illegal mining of coal and the rampant transportation thereof with the possible connivance of the State; and the manner in which the previously mined coal is to be disposed of. Several questions were asked of the State in the previous order of 7 December 2022, not the least of which being that at least a further 13 lakh metric tonnes of coal have been found in deposit, which is over and in excess of the previously mined coal. Such 13 lakh metric tonnes of coal together with several tens of lakh metric tonnes of illegally mined coal that has been transported out would show that absolutely nothing has been done by the State in pursuance of subsisting orders of the National Green Tribunal as upheld by the Supreme Court of India for the complete prohibition of unscientific extraction of coal in the State. It is an admitted position that no scientific extraction of coal has yet started in the State., Justice B. P. Katakey (retired), who has been tasked by the Supreme Court of India for overseeing and ensuring the disposal of the previously mined coal and to take steps to ensure that the recently illegally mined coal is not passed off as previously mined coal, filed a further interim report on 6 February 2023, copies of which may not have yet been circulated to the State and the other appearing parties. The report refers to illegal coal mining and transportation and steps taken by Justice Katakey pursuant to a newspaper report of about 10 January 2023 that three mine workers had reportedly died inside a coal mine in Rymbai in the East Jaintia Hills district. The Chief Secretary was requested to submit a report as to the veracity of the newspaper report. Justice Katakey’s latest interim report reveals that an FIR was lodged at Ladrymbai Outpost of the Khliehriat police station and a case was registered under Sections 188, 304A, 34 of the Penal Code read with Section 21(5) of the Mines and Minerals (Development and Regulation) Act, 1957 following the publication of such report., Three dead bodies which had been buried on 10 January 2023 were disinterred in terms of the order passed by the Chief Judicial Magistrate, Khliehriat and sent for autopsy to the North Eastern Indira Gandhi Regional Institute of Health and Medical Sciences. The autopsy reports are awaited and the State is expected to furnish them when this matter is taken up next. The interim report filed by Justice Katakey refers to several cases having been registered pertaining to illegal extraction of coal in the recent months. As to illegal transportation of coal, thirty‑one cases have been registered in December 2022 and January 2023. Surprisingly, even the rough estimates of the quantity of seized coal have not been indicated in any case. If thirty‑one cases of illegal transportation have come to light, there must have been several multiples more of illegal transportation that may either have been actively overlooked or may not have come to the notice of the appropriate personnel. The failure to indicate the approximate quantity of the seized coal leaves room for manipulation and there is no doubt that local officials are involved in such manipulation., In recent petitions filed in the Supreme Court of India, there are complaints of continuous illegal coal mining and illegal transportation thereof in the South Garo Hills and Gasuapara appears to be at the centre of such illegal activities in that region, just as Rymbai appears to be the heart of the illegal coal mining activity in the Khasi‑Jaintia hills. While it may be appreciated that a large number of people may have been left without a livelihood upon the ban on unscientific coal mining, it was the duty of the State to provide alternative forms of livelihood or even temporary succour to the citizens affected by the prohibition. At any rate, it was the initial duty of the State to check the illegal mining of coal, whatever may have been the reason or purpose thereof. If the State government had been serious in checking the illegal transportation of the illegally mined coal, without any demand for the illegally extracted coal further supplies would have stopped., Unfortunately, the State government has been singularly lacking in taking any proactive step, whether to arrest the continuation of illegal extraction of coal or to check the rampant illegal transportation thereof. Despite high officials of the State, including the Chief Secretary, being summoned to the Supreme Court of India and a contempt notice being issued against the Superintendent of Police, East Jaintia Hills district by the previous order in this matter, the illegal mining and illegal transportation of coal continue unabated and may even have increased in vigor during this election season. As observed in a recent order in a matter where the State admitted that it had discovered fifty‑seven illegal coke plants operating in a particular area in a district, there could have been no mushrooming or functioning of any coke plant unless it had access to illegally extracted coal which was illegally transported to such coke plant. It is only upon each discovery of illegal activity being made by the Supreme Court of India that the State responds by assuring the Court that steps would be taken to dismantle the illegal machinery; but the illegal activity mushrooms somewhere else and the State awaits the Court’s further direction before undertaking the work that the State itself is obliged to take up. It is a really sorry state of affairs and an affront to the rule of law., In the current scenario and considering that the State has been afforded nearly a year to take appropriate measures and the measures adopted by the State have fallen woefully short, it is necessary to call in the Central Armed Police Forces to monitor and stop the illegal activities pertaining to coal mining that continue in the State. Dr. N. Mozika, learned Deputy Solicitor General of India, who is present in the Supreme Court of India, is requested to take notice on behalf of the Union and to inform this Court, when the matter appears a week hence, as to the formalities for the immediate deployment of sufficient units of either the Central Industrial Security Force or the Central Reserve Police Force to completely take over the policing of illegal coal mining activities including the transportation thereof from the State machinery, obviously at a cost that the State will have to bear for its abject inefficiency., The large‑scale unscientific mining of coal in the State may lead to disastrous consequences. Coal and limestone are found in abundance in this State and both minerals have been exploited in an unscientific manner. Lack of education and lack of alternative opportunities may have driven many in the State to exploit primary resources such as timber and minerals and families may have been left in the lurch upon the unregulated and unscientific industry in either case being arrested. The kind of coal extraction that the locals undertake is mainly by rat‑hole mining where one or more persons dig a hole with barely enough space to crawl in and chip away the coal from the rock face to physically carry it out. Apart from the immediate risk of the roof of the hole caving in, such activity leaves gaping holes underground, ready to buckle in if there were to be an earthquake. Coupled with this is the presence of limestone underground or on rock sides. Unregulated extraction of limestone leaves gaps and holes close to the surface. With the abundance of rain in this region and limestone being prone to water erosion, there is a tragedy waiting to happen in the aftermath of the unscientific extraction of such coal and limestone, even as the State plays the proverbial fiddle. Without intending to sound apocalyptic, it takes no rocket science to realise that the recipe is ripe for disaster., The latest interim report of 6 February 2023 filed by Justice Katakey will be circulated to the appearing parties and copies thereof will be prepared by the officer assigned to the Supreme Court of India and made available to whoever seeks it. Such circulation should be completed in the course of this week. The autopsy reports should be available in the Supreme Court of India when the matter appears next along with the indication of the exact quantities of coal seized in respect of each of the thirty‑one cases registered pertaining to illegal transportation that find mention in Justice Katakey’s latest report. The State’s report filed on 6 February 2023 does not, for obvious reasons, deal with the matter pertaining to illegal transportation or any checks that may have been placed in such regard. It will be open to the State to rectify such aspect of the matter by the time the matter is taken up next., As far as the Superintendent of Police, East Jaintia Hills, is concerned, he shall show cause why punishment for contempt, including detention in jail, should not be suffered by him for the flagrant violation of orders of the Supreme Court of India to check the illegal menace of unscientific coal mining rampant all over the East Jaintia Hills and the illegal transportation thereof. An affidavit dealing with the revelations in the latest report of Justice Katakey should be in the Supreme Court of India when the matter appears next exactly a week hence.
id_1387	0	W.P.(C) 10596/2022. Through: Mr. M. Sufian Siddiqui, Mr. Rakesh Bhugra, Mr. Kumar Satish Shah, Ms. Alya Veronica, Advocates. Versus Through: Mr. Wajeeh Shafiq, Senior Counsel with Ms. Ramsha Shan, Advocates for Respondent 1., The petitioner, claiming to be the managing committee of a Mughal mosque situated near Qutub Minar, has filed this petition under Article 226 of the Constitution of India for an order restraining the respondents from obstructing or causing interference in the offering of namaz at the mosque., The contention of the petitioner is that the said mosque does not fall within the protected monument notified by the Archaeological Survey of India vide notification dated 24 January 1914 (Annexure R‑1 to the affidavit of the Archaeological Survey of India dated 26 October 2022). It is also contended that namaz was being offered from the said mosque from its establishment until 13 May 2022, when it was stopped by the respondent authorities, and that no notice was issued, even to the Managing Committee of the mosque, in this regard., It is made clear that learned counsel for the parties have submitted that the mosque in question is different from the Quwwatul Islam mosque in the Qutub Minar complex, which is the subject matter of a suit (Civil Suit No. 875/2020) filed before the District Court, Saket., On the basis of these submissions and the preliminary submissions advanced by learned counsel for the Archaeological Survey of India, it appears that the issues to be considered include, inter alia, whether the said mosque is included in the protected area under the notification dated 24 January 1914, and if so, the consequence thereof with regard to permissibility of worship at the mosque., Learned counsel for the parties are directed to file their written submissions, along with copies of any authorities upon which they wish to rely, within three weeks from today., List on 13 October 2023., The Archaeological Survey of India is also directed to produce any records available with it with regard to the issuance of the notification dated 24 January 1914.
id_1388	0	Through Mr. Dinesh Tiwari, Advocate versus Mr. Manoj Chaudhary, Senior Public Prosecutor for the State. The hearing was conducted through video conferencing., The present petition has been filed by the petitioner under Section 439 of the Criminal Procedure Code for grant of bail in case First Information Report No. 80/2020, for the offences punishable under Sections 147, 148, 149, 436, 427, 34 of the Indian Penal Code and Sections 3 and 4 of the Prevention of Damage to Public Property Act, registered at Police Station Dayalpur, Delhi., Learned Assistant Public Prosecutor has opposed the present petition by stating that on 25 February 2020, around 100 people were standing on the terrace of the house of co‑accused Tahir Hussain, the main accused, and they were throwing petrol bombs on the house of the Hindu community. The petitioner's name was disclosed by co‑accused Tahir Hussain. The petitioner is an associate of the said accused. As per the statement of eye‑witness, namely Rohit, the petitioner’s role and identification have been confirmed. Further, mobile phone location of the petitioner has ascertained his presence at the spot. Thus, the present petition deserves to be dismissed., It is not in dispute that there is no electronic evidence such as CCTV footage or photographs to implicate the petitioner in the present case. As per the statements of Constable Pawan and Constable Ankit, both eye‑witnesses who were present at the spot, they identified the petitioner and other co‑accused. However, they did not make any complaint on the date of the incident, i.e., 25 February 2020, whereas the First Information Report was lodged on 28 February 2020. Thus, the said witnesses appear to have been planted., The charge‑sheet has already been filed. The trial of the case shall take substantial time. However, without commenting on the merits of the case, the Delhi High Court is inclined to grant bail to the petitioner., Accordingly, he shall be released on bail upon furnishing a personal bond in the sum of Rupees 25,000/- and with one surety in the like amount to the satisfaction of the Trial Court/Duty Judge., The Trial Court shall not be influenced by the observation made by this Court while passing the order., The petition is, accordingly, allowed and disposed of., Copy of this order be transmitted to the Jail Superintendent concerned and the Trial Court for necessary compliance.
id_1389	0	Shri V. Ramachandran and Smt. Sreevidhia T. N, the complainant, dated this the 27th day of November 2023., M. S. Sajeev Kumar, son of late Sreedharan M. S., residing at Krishna Vilasam, Vembilly Post, Kumarapuram, Ernakulam District, Pin 683565, represented by Advocate Jyothilekshmi, Tritvam, Door No. 67/2626C, Amulya Street, Banerji Road, Cochin 682018, filed on 16/12/2021., D. B. Binu, President., First Opposite Party: Hewlett‑Packard Global Soft Private Limited, EC2 Campus, HP Avenue, Survey No. 39 (part), Electronic City, Phase‑II, Hosur Road, Bangalore 560100, Karnataka, represented by its Managing Director., Second Opposite Party: M/s. Reliance Digital, City Square, near Varma Hospital, Thripunithura, Kerala, Pin 682301, represented by its Branch Manager., Third Opposite Party: HP Authorized Service Centre, 2nd Floor, above Ambiswamys Restaurant, Valuvassery Mega Square, Kadavanthra Junction, Ernakulam, Kerala 682020, represented by its Manager., The complaint was filed under Section 35 of the Consumer Protection Act, 2019. The complainant, a lawyer based in Ernakulam, purchased an HP Laptop (model 15s‑du2099TU) from M/s. Reliance Digital on 16 December 2020. The laptop was promoted as having excellent performance and various features, including a superior quality camera. Within a month of purchase, the laptop started experiencing issues with the apostrophe key. The complainant contacted M/s. Reliance Digital, who directed them to the Authorized Service Centre (third opposite party). The laptop was given for service, but instead of replacing the laptop, the service centre only replaced the keyboard under warranty., After a few months, the laptop's performance deteriorated further, with slow functioning, constant error messages, and a bluish screen. The camera also started projecting blurred images. Despite the complainant's requests for a replacement, the service centre refused, citing a 14‑day replacement policy. The complainant argued that the laptop, purchased on 16 December 2020, should be covered under the one‑year warranty, and the refusal to replace it was illegal. They also mentioned that the opposite parties failed to understand the difference between “guarantee” and “warranty.”, As a remedy, the complainant sought the following from the National Consumer Disputes Redressal Commission: (a) Direct the First Opposite Party to replace the laptop; (b) Award compensation of Rs 1,00,000 for damages, including loss of work, inability to attend court procedures, and travel costs to the service centre during office hours; (c) Award Rs 25,000 towards the cost of the proceedings; (d) In the alternative, direct the First Opposite Party to refund the invoice value of the laptop along with damages of Rs 1,00,000 and the costs as prayed for., The Commission sent notices to the opposite parties, but despite accepting the notices, the opposite parties did not submit their versions and are therefore set ex‑parte., The complainant filed an ex‑parte affidavit and three documents marked as Exhibits A‑1 to A‑3. Exhibit A‑1 is the original tax invoice bearing Service No. 1800 8891 044 dated 16‑12‑2020. Exhibit A‑2 is the original work summary with Token No 103170 dated 16‑12‑2020. Exhibit A‑3 is the original work summary with Token No 104156 dated 22‑12‑2020., The main points for analysis are: (i) Whether the complaint is maintainable; (ii) Whether there is any deficiency in service or unfair trade practice by the opposite parties; (iii) Whether the complainant is entitled to any relief; and (iv) Costs of the proceedings, if any., Under Section 2(7) of the Consumer Protection Act, 2019, a consumer is a person who buys any goods or hires or avails any services for consideration paid or promised. The original tax invoice (Exhibit A‑1) issued by the second opposite party confirms the purchase made by the complainant, establishing that the complainant is a consumer as defined under the Act., During the proceedings, counsel Smt. Jyothilekshmi A. N. represented the complainant. The complainant is dissatisfied with the laptop's performance and seeks redress for the inconveniences and expenses incurred., The laptop's problems persisted despite repair: the apostrophe key stopped working, the service centre only replaced the keyboard, and later the device exhibited slow performance, frequent error messages, and a damaged pre‑installed Windows system, requiring the complainant to purchase a pen drive for Rs 600 to avoid data loss. The service centre refused replacement, citing a 14‑day policy and the need to reinstall Windows., The complainant argued that, as per the one‑year warranty, the laptop should be replaced and that the refusal was illegal. The evidence, including the unchallenged affidavit and exhibits, supports the complainant's claims., The opposite parties' failure to file written versions after receiving the Commission's notice amounts to an admission of the allegations. The Hon’ble National Consumer Disputes Redressal Commission has taken a similar stance in its order dated 2017., The laptop exhibited defects within a month of purchase, and despite multiple repairs, the issues resurfaced, indicating a latent manufacturing defect rendering the laptop unfit for use. The third opposite party advised that the pre‑installed Windows system was damaged and needed reinstallation, for which the complainant had to purchase an additional pen drive., Reference is made to the case Dee Dee Motors Pvt. Ltd. & Anr., dated 3 December 2019, where a manufacturing defect is defined as a persistent defect that cannot be rectified even after multiple repair attempts by the dealer., Reference is also made to Nachiket P. Shireosmor v. Pandit Automotive Ltd. & Another, Revision Petition No. 3519 of 2006, decided on 25 February 2008, where the Hon’ble National Consumer Disputes Redressal Commission held that persistent defects constitute a case of res ipsa loquitur., Examination of the original tax invoice (Service No. 1800 8891 044, dated 16 December 2020) shows that the document is not legible due to inferior quality ink on low‑grade paper. The Kerala State Department of Consumer Affairs, in its directive No. 259/2019 dated 6 July 2019, mandates that all entities provide bills that are durable and legible. Issuing poorly printed bills may constitute a deficiency of service and an unfair trade practice under Section 2(47)(vii) of the Consumer Protection Act, 2019., Rule 5 of the Consumer Protection (General) Rules, 2020, specifies the mandatory elements of every invoice, bill, cash memo, or receipt, including seller’s name and address, unique serial number, date of issue, consumer’s name, description of goods or services, quantity, shipping address, taxable value, discounts, tax rate, seller’s signature or authorized representative’s signature, customer care contact details, and total price with a detailed breakdown. For electronic documents, a signature is not required. Rule 5(2) emphasizes that the serial number must remain unchanged., In Tata Chemicals Ltd. v. Skypak Couriers Pvt. Ltd., decided on 14 December 2001, the Hon’ble National Consumer Disputes Redressal Commission ruled that terms and conditions must be printed in a readable manner to ensure consumers are informed about prices and have documentary evidence to support claims., Considering the evidence and the principles laid down in the aforementioned cases, the complainant is entitled to relief. The complainant's work as a lawyer was significantly affected, justifying compensation for mental agony and unfair trade practices., We find that issues (i) to (iv) are decided in favour of the complainant due to substantial deficiency in service and unfair trade practices by the opposite parties. As a result of the negligence of the opposite parties, the complainant has endured inconvenience, mental distress, hardships, and financial losses., In view of the above, the prayer is partly allowed as follows: (a) The First Opposite Party shall replace the laptop with a new unit of the identical model without charging any additional amount; alternatively, if replacement is not possible, the First Opposite Party shall refund the complainant the full purchase price as per the invoice (Exhibit A‑1). (b) The Second Opposite Party shall issue legible and durable bills prepared with quality printing ink on good‑quality paper. (c) The opposite parties shall pay Rs 50,000 as compensation for deficiency in service and unfair trade practices, as well as for mental agony, physical hardships, loss of work, and inconvenience. (d) The opposite parties shall also pay Rs 20,000 towards the cost of the proceedings. (e) The opposite parties shall be jointly and severally responsible for the directives mentioned above, which must be complied with within 30 days from receipt of a copy of this order. Failure to comply will result in interest at the rate of 9 % from the date of filing this case (16 December 2021) until the date of payment., Pronounced in open session of the National Consumer Disputes Redressal Commission on this 27th day of November 2023 by D. B. Binu, President.
id_1391	0	This file has been received on the orders dated 13 October 2020, passed by Shri Vishal Pahuja, Learned Additional Chief Metropolitan Magistrate -1, Rouse Avenue District Court, New Delhi. In the said order Learned Trial Court has requested for passing appropriate orders in the matter, submitting that in terms of order passed by Honorable Supreme Court of India in writ petition (Civil) No. 699/2016 in Ashwani Kumar Upadhyay v. Union of India and Another, special courts were created for the trial of the cases against Member of Parliament/Member of Legislative Assembly and in view of the said order the Honorable High Court vide circular No. 760-804/DHC/Gaz./G-1/VI.E.2(a)/2018 dated 23 February 2018 designated the Special Courts for trial of the cases against MP/MLA. It has been requested that as this matter is not filed against MP/MLA, hence, cannot be tried by the said court and needs to be transferred to the competent court of jurisdiction., Contentions raised on behalf of the complainant: Ms. Geeta Luthra, Learned Senior Counsel for the complainant has raised several contentions against transfer of the case at the final stage and some of the same are as follows: The matter should not be transferred, in as much as the notification designating the special courts for cases against MP/MLAs was based upon the order passed by Honorable Supreme Court of India in writ petition (Civil) No. 699/2016 in Ashwani Kumar Upadhyay v. Union of India and Another and nowhere can it be interpreted that only cases against MP/MLAs are to be tried by those designated courts. Going by the underlying object of the said order of Honorable Supreme Court, i.e., to clear the names of the MP/MLAs involved in any criminal cases or accusations of moral turpitude, the present case also deserves priority to be tried by a designated court. Even otherwise the notification, when read on its face, does not create any bar that the designated courts cannot be assigned other matters. The notification states that cases with respect to MP/MLAs must be tried only by the courts designated thereunder, but it does not say that no other matters can be assigned to those courts. It has been further contended by Learned Senior Counsel that this case was pending for the last two to three years and the entire proceedings are already over, even the trial is over and the case is at the stage of final arguments. Final arguments were almost concluded and only some arguments were remaining to be addressed in rebuttal. At this stage Learned Trial Court, of its own, expressed the view that the case should not be tried by the designated court and should be sent for transfer. Learned Senior Counsel expressed her grievance about the immense delay and the miscarriage of justice that may result therefrom. However, regarding the entire trial being vitiated by a court lacking jurisdiction, Learned Senior Counsel referred to and relied upon the provisions of Section 462 of the Code of Criminal Procedure, which states: “Proceedings in wrong place. No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub‑division or other local area, unless it appears that such error has in fact occasioned a failure of justice.” It has been submitted that irrespective of her submissions, even if the matter is transferred to another court, it would not imply that the trial would have to be de novo as per Section 462 CrPC. Learned Senior Counsel further contended that although the word used in the notification is “against” with respect to cases pending against MP/MLAs, literal interpretation should not be given to the word “against” and it should be read as “involving” or “with respect to”., Contentions raised on behalf of the accused: It was informed by the Learned Counsel for the complainant that Learned Counsel for the accused on the previous day, out of court, had conveyed that he was not going to oppose this stand and was sharing the same view; however, in court his submissions were quite different and it was contended on behalf of the accused that it would be more appropriate to transfer the matter to ordinary courts. Learned Counsel for the accused has argued that the matter should be transferred to an ordinary court because, in view of the notification of the Honorable High Court, cases against MP/MLA should be tried by the designated court, but as this matter is not against an MP, it needs to be transferred to an ordinary court. Learned Counsel supported the order of Learned Trial Court., I have heard both Learned Counsels and given my thoughtful consideration to the matter., Brief facts of the case: The complainant in the present case is an Indian politician who is the Minister of State for External Affairs and a Member of Parliament in the Rajya Sabha from Madhya Pradesh. He was inducted into the Union Council of Ministers by the Honorable Prime Minister in July 2016. The complainant is also a veteran Indian journalist and author of several renowned books. He is married and has two children. The accused is a journalist by profession. The present complaint has been preferred against the accused for defaming and damaging the reputation of the complainant in terms of Section 499 of the Indian Penal Code, 1980, by way of tweets, articles etc., published as well as distributed and disseminated at the behest of the accused in the print media as well as on online platforms such as Vogue Magazine, Twitter, Firstpost etc. It has been alleged that the accused has made false, derogatory and malicious imputations against the complainant in order to defame him with the sole ulterior motive of maligning his reputation and political standing in furtherance of her own vested interests and underlying agenda. It has also been mentioned in the complaint that the accused herself, while putting forward the defamatory statements relating to incidents which allegedly occurred twenty years ago, simultaneously admits that the complainant has not done anything to her. The complainant, by way of the present complaint, seeks due and appropriate punitive action against the accused in terms of Section 500., Learned Trial Court, in the order dated 13 October 2020, referred to the notification dated 23 February 2018 No.35/DHC/Gaz./G-1/VI.E.2(a)/2018 of the Honorable High Court whereby the Honorable High Court directed as follows: in compliance with the directions of the Honorable Supreme Court dated 1 November 2017 and 14 December 2017 in writ petition (Civil) No. 699/2016 titled Ashwani Kumar Upadhyay v. Union of India & Another, the court presided over by Mr. Arvind Kumar, Special Judge (Prevention of Corruption Act) Central Bureau of Investigation, Principal Headquarters, an officer of Delhi Higher Judicial Service, and the court presided over by Mr. Samar Vishal, Additional Chief Metropolitan Magistrate -2, New Delhi, Principal Headquarters, an officer of Delhi Judicial Service, have been designated as Special Courts to deal with cases against elected MPs/MLAs to be made functional in Patiala House Courts Complex with effect from 1 March 2018. The Acting Chief Justice and Judges of this court have further ordered that the cases pending against MPs/MLAs in different courts be transferred to the above‑said two courts before 1 March 2018 and that such cases be put on fast track with an endeavour to dispose of them within one year., Before moving in any direction, in the context of this case, it would be appropriate to discuss the main object of the order of the Honorable Supreme Court in writ petition (Civil) No. 699/2016 Ashwani Kumar Upadhyay v. Union of India and Another, based on which the notification, being relied upon by the Learned Trial Court, was issued., In my considered view, the main object for setting up fast‑track courts to deal with criminal cases involving MP/MLAs was to get such cases decided, either way, on a fast‑track mode, so as to clear the blot or shadow against the name and reputation of an MP/MLA while he sits in Parliament or Assembly, if it is clearable. In case he is found guilty, the decision should be swift so that he does not occupy a seat in the Parliament or Assembly. The object behind this order was very clear, and a literal view, in this context, should not be taken, as seems to have been taken by Learned Trial Court., Furthermore, this complaint was filed initially in October 2018; thereafter, pre‑summoning evidence was led, the accused was summoned, notice was framed, CE was completed, DE was completed and the matter was fixed for final arguments, which were nearing conclusion. This entire trial took a long time span of two years and after that the matter was sent by Learned Trial Court of its own for seeking orders for transfer of the matter., It should also be kept in mind that the trial of this complaint case is nearing conclusion, the final arguments have been heard and the case is at the stage of rebuttal arguments, if any, and if at this stage it is transferred to some other court, it would amount to miscarriage of justice and inordinate delay, which cannot be treated as conducive to the concept of timely justice., Even in spite of the provisions of Section 462 CrPC, even if it is assumed that the proceedings conducted before the concerned court would not be vitiated for want of jurisdiction and the matter may not call for a de novo trial, the transferee court would be reasonably expected to start hearing final arguments in the matter all over again, which would cause unreasonable delay in the disposal of the case., Coming back to the object of the order of the Honorable Supreme Court leading to the notification, the object is clearly that if there is a question mark on the reputation of an MP/MLA, it should be cleared fast, if it is clearable, and the case should not linger for long. Similarly, if he is indeed guilty, the truth should come out expeditiously., Keeping in view this object, and going back to the facts of the case briefly, the Me Too campaign involved several allegations of sexual or immoral conduct committed by high‑up persons of society including MP/MLAs or film personalities, and their names were clouded by several complaints filed by different women. The accused of the present case, though she did not file any complaint, on account of the accusations made by her in social media and other media, it cannot be said that the name of the complainant was not clouded and that it does not need to be cleared. The moment the complainant lodged a complaint for the offence of defamation, it implied that his name was under a cloud which, by this complaint, he wanted cleared. It is only through this complaint that it could be found out whether there was any force and substance in the accusations leveled in the Me Too campaign by the accused against the complainant, or whether it was only a malicious campaign., In the above context, reference is made to the following settled principles of jurisprudence, particularly with respect to interpretation of statutes: (i) The essence of law lies in the spirit, not in its letter, for the letter is significant only as being the external manifestation of the intention that underlies it (Salmond). (ii) The term interpretation is derived from the Latin term interpretari which means to explain, to understand or to translate; interpretation is a process through which one ascertains the true and correct intention of the law‑making bodies as laid in statutes. (iii) Salmond defines interpretation as the process by which courts seek to ascertain the meaning of legislation through the authoritative form in which it is expressed. (iv) In the landmark case of Keshavananda Bharati v. State of Kerala, (1973) 4 SCC 225, it was held that a word gets its colour in the context in which it is used and gathers its meaning from similar contexts. (v) In Heydon’s Case (1854) EWHC Exch J36, it was held that four things are to be considered: the common law before the making of the Act; the mischief and defect for which the common law did not provide; the remedy the Parliament resolved to cure the disease of the commonwealth; and the true reason of the remedy. This principle is used by courts to interpret the intention of the legislators. Though Learned Counsel for the complainant raised a point that in the present case it is not the legislature that has created any statute, Learned Counsel probably lost sight of the fact that orders and judgments of the Honorable Supreme Court have an equal binding force like a statute and form the law of the land. Applying the same principles as for interpretation of statutes to the order of the Honorable Supreme Court is therefore justified. This rule modifies the principle of grammatical interpretation; ordinarily the words used in a statute should be given their natural meaning, but if that leads to inconvenience, hardship or injustice, courts must modify the meaning to remove such inconvenience or injustice. This is known as the Golden Rule. The rule is based on the assumption that the legislature does not intend certain objects and any construction leading to such objects should be rejected. (vii) In Uttar Pradesh Bhoodan Yagna Samiti v. Brij Kishore, AIR 1981 SC 1656, the Supreme Court held that the expression “landless person” in Section 14 of the U.P. Bhoodan Yagna Act, 1953, was limited to land‑less labourers and did not include a land‑less businessman residing in a city. (viii) A beneficial statute confers benefit on individuals; if a provision is ambiguous and capable of two meanings, the meaning that preserves the benefit should be adopted. (ix) In Hindustan Lever Ltd v. Ashok Vishnu Kate, AIR 1998 SC 237, the Honorable Supreme Court held that while interpreting social welfare legislation, a construction should further the purpose for which such legislation was enacted. (x) The everyday work of courts involves interpretation of statutes because the judiciary must act according to the true intention of the legislature. Statutes are to be interpreted to enforce the law and avoid miscarriage of justice; if any interpretation results in injustice, hardship or inconvenience, the interpretation that supports justice should be adopted. In brief, interpretation of a statute or a judgment of the Apex Court should be liberal and not literal., The relevant portion of the order dated 1 November 2017 of the Honorable Supreme Court in Ashwani Kumar Upadhyay v. Union of India and Another clarifies that the Union Government would not be averse to setting up Special Courts to try criminal cases or offences involving political persons for utmost expeditious disposal. The order does not speak about cases only against MP/MLAs; it talks about cases involving MP/MLAs. The emphasis is on cases involving MP/MLAs and not solely on cases against them. Even though the notification uses the words “against” MP/MLAs, if there is a contradiction between the notification and the main order of the Honorable Supreme Court, the Supreme Court order is the guiding path, not the notification., Applying the settled legal principles discussed in detail to the order of the Honorable Supreme Court in Ashwani Kumar Upadhyay v. Union of India and Another, it is clear that the underlying object is that the names of MP/MLAs involved in any criminal cases should be cleared quickly and decisions should be rendered expeditiously, either way, so as to remove the blot or shadow against their reputation while they sit in Parliament or Assembly, if it is clearable. In case he is found guilty, the decision should be swift so that he does not occupy a seat in the Parliament or Assembly., In the present situation, though the order of the Honorable Supreme Court throughout used the words “involving” MP/MLAs, the notification issued in compliance with that order used the word “against”. This probably led Learned Trial Court to refer to the notification, ignoring the foundational order passed by the Honorable Supreme Court., Therefore, adopting a wider view of the notification and in the light of the order of the Honorable Supreme Court in Ashwani Kumar Upadhyay v. Union of India and Another, and treating the case as involving the name and reputation of an MP, I am of the considered view that the matter should be tried and disposed of by the designated court itself., Accordingly, this case is directed to be sent back to the designated court of Shri Vishal Pahuja, Learned Additional Chief Metropolitan Magistrate, Regional Additional District Court, New Delhi for disposal in accordance with law. Learned Counsel(s) and parties are directed to appear before Learned Trial Court on 2 November 2020 at 10:30 a.m. through video conference. A copy of this order shall be provided to Learned Counsel(s) for the parties electronically. The clerk is directed to send the case file, complete in all respects, to Learned Trial Court after completion of due formalities.
id_1393	0	Reportable Writ Petition (Civil) No. 880 of 2017 Association for Democratic Reforms & Another Petitioners versus Union of India & Others Respondents; Writ Petition (Civil) No. 59 of 2018; Writ Petition (Civil) No. 975 of 2022; and Writ Petition (Civil) No. 1132 of 2022. Dr. Dhananjaya Y. Chandrachud, Chief Justice of India., 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. They have also challenged the provisions of the Finance Act 2017, which amended 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 that 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 inserting Section 31(3), which permits the Central Government to authorize any scheduled bank to issue electoral bonds., 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. The Companies Act 1956 and the Representation of the People Act, when originally enacted, did not regulate contributions by companies and individuals. The Companies (Amendment) Act 1960 introduced Section 293A, prohibiting companies from contributing more than twenty‑five thousand rupees or five percent of average net profits in a financial year to any political party or for any political purpose, and required disclosure in the profit and loss account. Subsequent amendments in 1969, 1985 and later years modified the prohibition, re‑introducing limited contributions with caps and disclosure requirements, and prescribing penalties for violations., Section 182 of the Companies Act 2013 incorporated the provisions of Section 293A of the 1956 Act as amended in 1985. It allows a company to contribute any amount directly or indirectly to any political party, subject to two conditions: (a) the aggregate contribution in a financial year must not exceed seven and a half percent of the company’s average net profits during the three immediately preceding financial years, and (b) a resolution authorising the contribution must be passed by the Board of Directors. Sub‑section (3) mandates disclosure of the total amount contributed and the name of the political party in the profit and loss account., The Finance Act 2017 made three changes to Section 182 of the Companies Act: it omitted the first proviso that capped corporate funding, it amended Section 182(3) to require only the total amount contributed to be disclosed (removing party‑wise particulars), and it introduced Sub‑section 3A, allowing contributions only by cheque, bank draft, or electronic clearing system, with the possibility of using any instrument issued under a scheme notified for political contributions., The Taxation Laws (Amendment) Act 1978 added Section 13A to the Income Tax Act, exempting income of political parties from income tax on the condition that the party maintains books of account, records voluntary contributions above twenty thousand rupees with donor details, and has its accounts audited. The Election and Other Related Laws (Amendment) Act 2003 inserted Sections 80GGB and 80GGC, making contributions to political parties tax‑deductible for companies and individuals, respectively, provided the contributions were not in cash. The Finance Act 2017 further amended Section 13A by removing the requirement to maintain a record of contributions received through electoral bonds and by mandating that donations exceeding two thousand rupees be made only by cheque, bank draft, electronic clearing system, or electoral bond., On 2 January 2017, the Reserve Bank of India wrote to the Joint Secretary in the Ministry of Finance objecting to the proposal to enable scheduled banks to issue electoral bearer bonds. The Reserve Bank of India argued that the amendment would allow multiple non‑sovereign entities to issue bearer instruments, undermining the Reserve Bank’s exclusive authority and potentially eroding confidence in banknotes. It also noted that, although the purchaser’s identity would be known under the Know Your Customer requirement, the identities of intervening persons or entities would remain unknown, affecting compliance with the Prevention of Money Laundering Act 2002. The Reserve Bank of India further contended that the same objectives could be achieved through cheques, demand drafts, and electronic payments without introducing a new bearer bond., The Ministry of Finance responded on 30 January 2017, stating that the Reserve Bank of India had not understood the core purpose of electoral bonds, which is to keep the donor’s identity secret while ensuring that donations are made only from tax‑paid money. It also asserted that the fear of electoral bonds being used as currency was unfounded because the bonds have a limited redemption period. On 4 August 2017, the Deputy Governor of the Reserve Bank of India suggested that electoral bonds could be issued on a transitional basis under the existing provisions of Section 31(1) of the Reserve Bank of India Act, and recommended safeguards including a maximum tenure of fifteen days, denominations in multiples of one thousand, ten thousand or one lakh rupees, purchase only from KYC‑compliant bank accounts, redemption only into the designated bank account of an eligible political party, limited sale periods (twice a year for seven days each), and issuance solely at the Reserve Bank of India, Mumbai., The draft Electoral Bond Scheme was circulated to the Reserve Bank of India for comments. The Reserve Bank objected on 14 September 2017 to allowing commercial banks to issue bonds, citing adverse impact on public perception and the credibility of India’s financial system, as well as the risk of shell companies misusing bearer bonds for money‑laundering. It recommended electronic issuance to reduce money‑laundering risk, lower costs, and enhance security. The Committee of the Central Board of the Reserve Bank of India conveyed serious reservations about physical‑form issuance, noting that bearer bond issuance is a monopolistic function of the central authority, that physical scrips could facilitate money laundering and forgery, and that the scheme could be perceived as enabling money laundering., On 26 May 2017, the Election Commission of India wrote to the Ministry of Law and Justice expressing concern that the amendments to the Income Tax Act, the Representation of the People Act, and the Companies Act introduced by the Finance Act 2017 would seriously impact transparency of political financing. The Election Commission highlighted that donations received through electoral bonds were excluded from the contribution report required under Section 29C of the Representation of the People Act 1951, a retrograde step for transparency. It also noted that the deletion of the provision requiring companies to disclose party‑wise contributions in their profit and loss accounts would hinder transparency, and that the removal of the cap on corporate donations could encourage the use of black money through shell companies. The Election Commission recommended reinstating the corporate donation cap and party‑wise disclosure requirements., On 2 January 2018, the Ministry of Finance (Department of Economic Affairs) notified the Electoral Bond Scheme 2018 under the power conferred by Section 31(3) of the Reserve Bank of India Act. An electoral bond is a bearer promissory note that does not carry the name of the buyer. The scheme allows any person who is a citizen of India or incorporated/established in India—including individuals, Hindu undivided families, companies, firms, associations of persons, artificial juridical persons, and agencies—to purchase bonds in denominations of Rs 1,000, Rs 10,000, Rs 1,00,000, Rs 10,00,000 and Rs 1,00,00,000. Bonds can be purchased only from scheduled banks that are KYC‑compliant, and the buyer may use demand draft, cheque, Electronic Clearing System or direct debit. An eligible political party, defined as a party registered under Section 29A of the Representation of the People Act 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 encash the bond only through an authorised bank account. The bonds are valid for fifteen days from the date of issue; if not encashed within that period, they are deposited by the authorised bank with the Prime Minister’s Relief Fund. The State Bank of India has been notified as the bank authorised to issue and encash the bonds.
id_1393	1	The application shall be rejected if the application is not Know Your Customer (KYC) 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 and shall be disclosed only when demanded by a competent court 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 House of the People 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 of the Constitution 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 the 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—including 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 the prescribed fee. Since the scheme mandates political parties to file audited statements of accounts and 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 the bond and political party) and match them. 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 of the Supreme Court of India., 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 the 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., Mr Prashant Bhushan, learned counsel, made the following submissions: (i) 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 to enhance transparency in electoral funding since electoral bond transactions can only be made through legitimate banking channels, yet cash donations are still permitted after the introduction of the scheme; (ii) the Central Government ignored the objections raised by both the Reserve Bank of India and the Election Commission of India to the Electoral Bond Scheme; (iii) the statutory amendments and the Electoral Bond Scheme, which mandate non‑disclosure of information of electoral funding, are unconstitutional because they defeat the purpose of provisions mandating disclosure of information on political funding in the Representation of the People Act and the Companies Act, they violate Article 19(1)(a) which guarantees the voter the right to information concerning the affairs of the public and the government, and they violate Article 21 because the non‑disclosure of information of political contributions promotes corruption and quid pro quo arrangements; (iv) the scheme prevents shareholders of companies who are donating money to political parties from obtaining information about such contributions; and (v) the statutory amendments and the scheme subvert democracy and interfere with free and fair elections because the huge difference in the funds received by ruling parties at the state and centre level vitiates a level playing field between different parties and between parties and independent candidates., Mr Kapil Sibal, learned senior counsel, submitted that: (i) 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; (ii) freedom of a voter in the negative sense refers to the freedom to cast a vote without interference and intimidation, while freedom in the positive sense includes the freedom to vote on the basis of complete and relevant information, including information about financial contributions to political parties; (iii) the argument of the Union of India that courts should show judicial restraint is erroneous because the amendments relate to the electoral process and not to economic policy; (iv) the presumption of constitutionality should not apply to statutes which alter the ground rules of the electoral process, as it would be paradoxical to accord such a presumption to laws that set the conditions under which the legislature comes into being; (v) 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); (vi) the funds contributed to the Electoral Bond Scheme can be used in any manner and are not restricted to electoral campaigns; (vii) the scheme severs the link between elections and representative democracy because elected representatives may be inclined to fulfill the wishes of contributors rather than voters, through direct or indirect quid pro quo; (viii) the scheme creates information asymmetry whereby the information about political donations is not disclosed to voters but the Central Government, through the State Bank of India—the authorized bank under the scheme—has access to it, leading to a larger portion of donations being made to the ruling party at the centre; (ix) the scheme skews the principle of one person, one vote by giving corporates a greater opportunity to influence political parties and electoral outcomes; (x) the amendment to Section 182(3) permits loss‑making companies to contribute to political parties, allows unlimited contributions enabling significant policy influence, and permits non‑disclosure of information on political funding to shareholders; (xi) the amendments permitting non‑disclosure of information on political funding violate the right to information under Article 19(1)(a), as an informed vote is essential for a functioning democracy; (xii) the infringement of the right to information does not satisfy the proportionality standard with respect to the purpose of curbing black money, and even if the scheme fulfills that purpose, non‑disclosure is not the least restrictive means; (xiii) the infringement also fails the proportionality test concerning informational privacy because donor privacy is not a legitimate purpose, political funding is a public act subject to scrutiny, and the public interest in free and fair elections outweighs any private interest in confidentiality; and (xiv) the amendment to Section 31 of the Reserve Bank of India Act is unconstitutional because it involves excessive delegation and does not set out the contours of the scheme., Mr Shadan Farasat, learned counsel, submitted that: (i) the scheme does not effectively curb black money; although Clause 14 of the Electoral Bond Scheme prohibits de jure trading of the bonds, trading is de facto permissible as nothing prevents one person from purchasing a bond and trading it with another person who pays in cash; (ii) the right to information on political funding, which is traceable to Article 19(1)(a), can be restricted only on the grounds stipulated in Article 19(2), and the purposes of curbing black money and recognizing donor privacy are not among those grounds; (iii) even if the purposes were traceable to Article 19(2), the scheme is unreasonable and disproportionate because it still permits cash funding up to rupees two thousand, there is no rational nexus between means and purpose, less restrictive means 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) requiring sufficient safeguards to prevent abuse is not satisfied; (iv) the statutory amendments and the scheme are manifestly arbitrary because large‑scale corruption and quid pro quo arrangements would go unidentified due to non‑disclosure, they enable capture of democracy by wealthy interests, and they infringe the principle of one person, one vote; (v) the deletion of the limit on corporate contributions is manifestly arbitrary because it permits donations by loss‑making companies, removes shareholder control over board decisions, and permits unlimited corporate contributions, thereby abrogating democratic principles; (vi) the provision permitting non‑disclosure of funding by companies violates shareholders’ rights under Article 25, which includes the right to know how resources generated from their property are utilized, and under Article 19(1)(g), which protects the right to exit a business if political contributions are not a sound business decision., Mr Nizam Pasha, learned counsel, submitted that: (i) 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, contrary to foreign investment laws that treat companies owned or controlled by non‑resident Indian citizens as foreign‑owned or controlled; (ii) the scheme is discriminatory and non‑transparent, contradicting existing laws requiring transparency and verification of beneficial ownership and source of funds; and (iii) the amendments to Section 29C of the Representation of the 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 and fail to achieve the stated objective of curbing cash donations., Mr Vijay Hansari, learned senior counsel, made the following submissions: (i) the objects and reasons of the Election and Other Related Laws (Amendment) Act 2003, which amended the Companies Act 1956, the Income Tax Act 1961 and the Representation of the People Act, indicate that the amendments were made to incentivize contributions through banking channels, and therefore the amendments to Section 13A of the Income Tax Act and Section 29C of the Representation of the People Act are contrary to the objects of inserting Section 13A, Section 80GGB and Section 80GGC of the Income Tax Act; (ii) since 1959, when companies were permitted to contribute to political parties, they were required to mandatorily disclose total contributions and the name of the party, with prescribed ceiling limits, but the Finance Act 2017 removed these transparency requirements; and (iii) 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, underscoring a global consensus on transparency in political funding., Mr Sanjay R. Hegde, learned senior counsel, submitted that: (i) public listed companies are subject to scrutiny because they raise funds from the public, and information pertaining to the company must be brought to the public domain to enable informed debates; the amendment to the Companies Act that removes the requirement of disclosure of information about political contributions violates the right to information of shareholders flowing from Article 19(1)(a); (ii) public listed companies should not be allowed to make contributions without the consent of the majority of shareholders or three‑fourths of shareholders; (iii) non‑disclosure of information about political funding denies shareholders the right to choice that flows from Article 21, as shareholders are incapacitated from deciding whether to invest in a company that has contributed to a political party whose ideology they do not agree with; and (iv) the amendment to Section 182(3) perpetuates pre‑existing inequality in power between shareholders and the board/promoters/management, violating the right to substantive equality under Article 36., Mr P.B. Suresh, learned counsel, submitted that: (i) the scheme and amendments violate Articles 14 and 15 by disproportionately impacting regional political parties and parties representing marginalized and backward sections of society, as representation of backward classes is low in the corporate sector; (ii) the presumption of constitutionality does not apply in full rigour to electoral laws because incumbent legislators have a vested interest in shaping laws that make re‑election easier; (iii) 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; and (iv) political parties have a right to know the funding sources of rival parties to enable them to critique such funding before the public., The learned Attorney General for India submitted that: (i) political parties are an integral product of a free and open society and play an important role in the administration of community affairs, therefore they are entitled to receive all support, including financial contributions; (ii) the Electoral Bond Scheme allows any person to transfer funds to political parties of their choice through legitimate banking channels instead of unregulated means such as direct cash transfers; (iii) the scheme ensures confidentiality of contributions, which promotes the contribution of clean money to political parties; (iv) citizens do not have a general right to know regarding the funding of political parties; the right to know is not a general right available to citizens; (v) the Supreme Court has evolved the right to know for the specific purpose of enabling and furthering the voter’s choice of electing candidates free from blemish; and (vi) the influence of contributions by companies to political parties ought not to be examined by the Court, as it is an issue of democratic significance best left to the legislature., The learned Solicitor General of India submitted that: (i) the legal framework prior to the enactment of the Electoral Bond Scheme was mostly cash‑based, which incentivized infusion of black money into political parties and the electoral process; the scheme is an improvement on the prior framework; (ii) donors to a political party often apprehend retribution from other parties, which incentivizes them to contribute unaccounted money; the scheme maintains donor confidentiality and thereby encourages clean money contributions; (iii) if the donor is a public company, it must declare the amount contributed in its books of account without disclosing the name of the political party, while political parties must disclose the total amount received through electoral bonds in their audited accounts filed before the Election Commission of India, balancing clean money inflow with citizens’ right to information; (iv) the state has a positive obligation to safeguard the privacy of its citizens, which includes the right to political affiliation; the buyer’s right to purchase electoral bonds without disclosing party preference secures the buyer’s right to privacy; (v) the Electoral Bond Scheme has been enacted in pursuance of a legitimate state interest to shift from cash‑driven, unregulated political donations to a regulated, digital framework; specific provisions include: Clause 3(3) requiring a registered political party to have secured at least one percent of votes in the last general election to be eligible for bonds, thereby barring ghost parties; Clause 4 requiring buyers to meet KYC norms; Clause 7(4) mandating the authorized bank to treat buyer information as confidential, disclosing it only on direction of a competent court or upon registration of a criminal case; Clause 11 mandating that all payments for purchase of bonds be accepted through banking channels, curbing black money; (vi) the right of a citizen to know how political parties are funded must be balanced against the right of a person to maintain privacy of political affiliations, as donating to a preferred party is a form of political self‑expression at the heart of privacy; (vii) maintaining anonymity of donations is part of the concept of secret ballot, enabling political choices without fear of victimisation; (viii) the right to information operates only against information in the possession or knowledge of the state and cannot be used to seek information not held by the state; (ix) the amendments to the Reserve Bank of India Act, the Representation of the People Act and the Income Tax Act are intended to curb cash donations and secure donor anonymity; (x) the amendment to Section 182 of the Companies Act removes the limitation of seven and a half percent of net profits on contributions, intended to disincentivise creation of shell companies; (xi) the Court has recognised that the legislature has wide latitude in matters concerning economic policy and that the mere possibility of abuse cannot render a provision procedurally or substantively unreasonable; and (xii) 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 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 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 that relate to economic policy, as compared to laws relating to civil rights such as freedom of speech or religion. More recently, in Swiss Ribbons v. Union of India, the Court, while deciding a challenge to provisions of the Insolvency and Bankruptcy Code 2016, observed that the legislature must be given free play to experiment with economic policy. The same approach was 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 a constitutional challenge, the Court does not rely on the ipse dixit of the government that legislation is economic. Courts must analyse 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, but any resemblance to economic policy ends there. The amendments in question can be grouped into two heads: (i) provisions mandating non‑disclosure of information on electoral financing; and (ii) provisions permitting unlimited corporate funding to political parties. Both categories relate to the electoral process., The correspondence between the Ministry of Finance and the Reserve Bank of India, summarised above, shows that the bonds were introduced only to curb black money in the electoral process and to protect informational privacy of financial contributors to political parties. The Union of India has itself classified the amendments as electoral reform. Accordingly, the Union’s submission that the amendments deal with economic policy cannot be accepted.
id_1393	2	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 which are entrenched in Part III of the Constitution and other constitutional provisions. It is for this reason that 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 in the following terms: In spite of there being a general presumption in favour of the constitutionality of the legislation, in a challenge laid to the validity of any legislation allegedly violating any right or freedom guaranteed by clause (1) of Article 19 of the Constitution, on a prima facie case of such violation having been made out, the onus would shift upon the respondent State to show that the legislation comes within the permissible limits of the most relevant out of clauses (2) to (6) of Article 19 of the Constitution, and that the restriction is reasonable. The Constitutional Court would expect the State to place before it sufficient material justifying the restriction and its reasonability. On the State succeeding in bringing the restriction within the scope of any of the permissible restrictions, such as the sovereignty and integrity of India or public order, decency or morality etc., the onus of showing that restriction is unreasonable would shift back to the petitioner. Where the restriction on its face appears to be unreasonable, nothing more would be 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 called upon to decide the constitutional validity of a 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, that is, laws which deal with electoral processes, cannot be accepted. Courts cannot carve out an exception to the evidentiary principle which is available to the legislature based on the democratic legitimacy which it enjoys. In the challenge to electoral law, like all legislation, 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 which can be received by a political party or a candidate contesting elections. However, Section 77 of the Representation of the People Act read with Rule 90 of the Conduct of Election Rules 1961 prescribes a cap on the total expenditure which can be incurred by a candidate or their agent in connection with Parliamentary and Assembly elections between the date on which they are nominated and the date of the declaration of the result. The maximum limit for the expenditure in a Parliamentary constituency is between rupees seventy‑five lakhs to 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., Explanation 1 to Section 77 of the Representation of the People Act read with Section 169 provides that the Central Government, in consultation with the Election Commission of India, has the power to prescribe the amount over which the total expenditure incurred by the candidate or their agent in connection with Parliamentary and Assembly elections 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. The expenditure limit is capped at seventy‑five lakhs 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. For the remaining States and Union Territories, the expenditure limit 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. Among the Union Territories, the expenditure is capped at twenty‑eight lakhs for Puducherry and forty lakhs for Delhi and Jammu and Kashmir., Section 77 stipulates that the expenditure incurred by leaders of a political party on account of travel for propagating the programme of the political party shall not be deemed to be election expenditure. Thus, there is an underlying dichotomy in the legal regime. The law does not regulate contributions to candidates; it only regulates contributions to political parties. However, expenditure by the candidates and not the political party is regulated. The underlying understanding of the legal regime regulating electoral finance 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 through 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 the impact 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 have an effect on the voting behaviour of both an informed and an uninformed voter. The impact of campaigns on an informed voter is supplementary because campaign activities enable an informed voter to be further informed about the policies and ideology of the political party and the candidate, and their views on specific issues. Electoral campaigns reduce the uncertainty about candidates for an informed voter. For an uninformed voter, electoral campaigns play a much more persuasive role in influencing electoral behaviour because campaigns throw more light on candidates., Political parties use innovative techniques of campaigning by going beyond the traditional methods of advertisements, door‑to‑door campaigning and processions to increase outreach. For example, political 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 the minds of uninformed voters. Thus, enhanced campaign expenditure proportionately increases campaign outreach which influences the voting behaviour of voters., Money also creates entry‑barriers to politics by limiting the kind of candidates and political parties which enter the electoral fray. Studies have shown that money influences the selection of candidates by political parties because parties would prefer fielding candidates who would be able to substantially self‑finance their campaign without relying on the party for finance. In this manner, candidates who belong to socio‑economically weaker sections face added barriers because of the close association of money and politics., Money also excludes parties which are new to the electoral fray, particularly parties representing marginalized communities. Political parties which do not have enough finance have had to form electoral coalitions with established political parties who, in exchange, shoulder a lion’s share of the campaign expenditure of the newly established party, extending to costs related to coalition propaganda, print and digital advertising, vehicle and equipment hire, political rallies, food transportation, and daily expenditure for party cadres. The compromises which newly formed political parties have to make lead to a dilution of the ideology of the party in exchange for its political sustenance. In this manner, money creates an exclusionary impact by reducing the democratic space for participation for both candidates and newer and smaller political parties., The judgments of the Supreme Court of India have recognized the influence of money on politics. They take a critical view of the role played by big business and big money in the electoral process in India. The decision in Kanwar Lal Gupta v. Amar Nath Chawla notices that money serves as an asset for advertising and other forms of political solicitation that increases a candidate’s exposure to the public. The Court observed that the availability of large funds allows a candidate or political party significantly greater opportunity for the propagation of its programme in comparison to their political rivals. Such political disparity results in serious discrimination between one political party or individual and another on the basis of money power and that in turn would mean that some voters are denied an equal voice and some candidates are denied 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 channelled by political parties. The Court acknowledged that large monetary inputs are necessary evils of modern elections, which they hoped would be eradicated sooner rather than later. In P. Nalla Thampy Terah v. Union of India, a Constitution Bench of the Supreme Court of India was called upon to decide the 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 upholding the constitutional validity of the explanation, the Court noted that the 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 Supreme Court of India dwelt on the ostentatious use of money by political parties in elections to further the prospects of candidates set up by them. Justice Kuldip Singh described the role of money in the electoral process: “The General Elections is an enormous exercise and a mammoth venture in terms of money spent. Hundreds and thousands of vehicles of various kinds are pressed on to the roads in 543 parliamentary constituencies on behalf of thousands of aspirants to power, many days before the general elections are actually held. Millions of leaflets and many million posters are printed and distributed or pasted all over the country. Banners by the lakhs are hoisted. Flags go up, walls are painted, and hundreds of thousands of loudspeakers play out the loud exhortations and extravagant promises. V‑IPs and V‑VIPs come and go, some of them in helicopters and air‑taxis. The political parties in their quest for power spend more than one thousand crore rupees on the General Election (Parliament alone), yet nobody accounts for the bulk of money so spent and there is no accountability anywhere. Nobody discloses the source of the money. There are no proper accounts and no audit. From where does the money come from nobody knows. In a democracy where rule of law prevails this naked display of black money, by violating the mandatory provisions of law, cannot be permitted.”, 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 in numerous judgments held that the effect and not the object of the 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 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 the 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. The company which has made financial contributions is now only required to disclose the total amount contributed to political parties without disclosing specific particulars about the political party to which the contribution was made., Maintaining the anonymity of the contributor is a crucial and primary characteristic of the Electoral Bond Scheme. The 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 the 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 is violative of the right to information of the voter which is traceable to Article 19(1)(a) of the Constitution., This segment of the judgment will discuss whether the amendments and the Electoral Bond Scheme infringe the right to information of the voter. For this purpose, we will discuss the scope of the right to information, and whether the right extends to information on contributions to political parties., Article 19(1)(a) has been held to guarantee the right to information to citizens. The judgments 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. These judgments recognize that it is the role of citizens to hold the State accountable for its actions and inactions and they must possess information about State action for them to accomplish this role effectively., In the first phase, the Court delineated the scope of the right to information in the context of deciding the disclosure of evidence relating to affairs of the State. Provisions of the Indian Evidence Act stipulate that evidence which is relevant and material to proceedings need not be disclosed to the party if the disclosure would violate public interest. In the 1960s, the Court framed the issue of disclosure of documents related to the affairs of the State in terms of a conflict between public interest and private interest. The Court observed that the underlying principle in the provisions of the Indian Evidence Act bearing on the disclosure of evidence related to the affairs of the State is that if such disclosure is denied, it would violate the private interest of the party. So, when a party seeks the disclosure of documents, and when such disclosure is denied on the ground that it would violate public interest, there is a conflict between private interest and public interest. In subsequent cases, the courts cast the principle underlying the provisions of disclosure in the Indian Evidence Act as a conflict between two conceptions of public interest. The Court held that disclosure of information aids the party to the proceedings. But beyond that, disclosure also serves the public interest in the administration of justice., In State of Uttar Pradesh v. Raj Narain, the respondent sought to summon documents in an election petition. The State made a claim of privilege from disclosure of documents. In his concurring opinion in the Constitution Bench, Justice K. K. Mathew observed that there is a public interest in the impartial administration of justice which can only be secured by the disclosure of relevant and material documents. The learned Judge reaffirmed this proposition by tracing the right to information to Article 19(1)(a) of the Constitution: “In a Government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security.”, This principle was further elucidated in S. P. Gupta v. Union of India. The Union of India claimed immunity against the disclosure of the correspondence between the Law Minister, the Chief Justice of the High Court of Delhi, and the Chief Justice of India on the reappointment of Additional Judges. Justice P. N. Bhagwati, while discussing the position of law on claims of non‑disclosure, observed that the Constitution guarantees the right to know which is necessary to secure true facts about the administration of the country. The opinion recognized accountability and transparency of governance as important features of democratic governance. Democratic governance, the learned Judge remarked, is not restricted to voting once in every five years but is a continuous process by which the citizens not merely choose the members to represent themselves but also hold the government accountable for their actions and inactions for which citizens need to possess information., The first phase of the jurisprudence on the right to information in India focused on the close relationship between the right and open governance. The judgments in this phase were premised on the principle that citizens have a duty to hold the government of the day accountable for its actions and inactions, and they can effectively fulfil this duty only if the government is open and not clothed in secrecy., In the second phase of the evolution of the jurisprudence on the right to information, the Supreme Court of India recognized the importance of information to form views on social, cultural and political issues, and to participate in and contribute to discussions. Courts recognized that the relevance of information is not only to hold the government accountable but also to discover the truth in a marketplace of ideas which would ultimately secure the goal of self‑development. This Court also recognized that freedom of speech and expression includes the right to acquire information which would enable people to debate on social, moral and political issues. These debates would not only foster the spirit of representative democracy but would also curb the prevalence of misinformation and monopolies on information. Thus, in the second phase, the Court went beyond viewing the purpose of freedom of speech and expression through the lens of holding the government accountable, by recognizing the inherent value in effective participation of the citizenry in democracy. This Court recognized that effective participation in democratic governance is not just a means to an end but is an end in itself. This interpretation of Article 19(1)(a) is in line with the now established position that fundamental freedoms and the Constitution as a whole seek to secure conditions for self‑development at both an individual and group level., A crucial aspect of the expansion of the right to information in the second phase is that the right to information is not restricted to information about state affairs, that is, public information. It includes information which would be necessary to further participatory democracy in other forms and is not restricted to information about the functioning of public officials. The right to information has an instrumental exegesis, which recognizes the value of the right in facilitating the realization of democratic goals. But beyond that, the right to information has an intrinsic constitutional value; one that recognizes that it is not just a means to an end but an end in itself., In Union of India v. Association for Democratic Reforms (ADR), the Supreme Court of India traced the right of voters to have information about the antecedents, including the criminal past, of candidates contesting elections, to Article 19(1)(a) of the Constitution. Proceedings under Article 226 of the Constitution were instituted before the Delhi High Court seeking a direction to implement the Law Commission’s recommendations to (a) debar candidates from contesting elections if charges have been framed against them by a Court in respect of certain offences; and (b) ensure that candidates furnish details regarding criminal cases which are pending against them. The High Court held that the Court cannot direct Parliament to implement the recommendations of the Law Commission. However, the High Court directed the Election Commission of India to secure information relating to (a) the details of cases in which a candidate is accused of any offences punishable with imprisonment; (b) assets possessed by a candidate, their spouse and dependents; (c) facts bearing on the candidate’s competence, capacity, and suitability for representing the people; and (d) any other information which the Election Commission of India considers necessary for judging the capacity of the candidate fielded by the political party., The Union of India appealed against the decision of the High Court before the Supreme Court of India. The Court held that voters have a right to be sufficiently informed about candidates so as to enable them to exercise their democratic will through elections in an intelligent manner. Such information was held to be necessary for elections to be conducted in a free and fair manner: “the members of a democratic society should be sufficiently informed so that they may influence intelligently the decisions which may affect themselves and this would include their decision of casting votes in favour of a particular candidate.” The Court rejected the argument that information about a candidate contesting elections cannot be compelled to be disclosed because it is not public information. The three‑Judge Bench held that information that candidates are required to disclose is only limited to aiding the voters in assessing whether they could cast their vote in a candidate’s favour. The Court observed that the criminal background of a candidate and assets of the candidate would aid the voters to cast their vote in an informed manner. The Court directed the Election Commission of India to call for the following information on affidavit as part of nomination: (a) whether the candidate has been convicted, acquitted or discharged of any criminal offence in the past and, if convicted, whether they are punished with imprisonment or fine; (b) in the six months prior to the filing of nomination papers, whether the candidate was accused in any pending case for an offence punishable with imprisonment for two years or more, and in which a charge is framed or cognizance is taken by the court of law; (c) the assets (immovable, movable, bank balances and others) of a candidate and of his/her spouse and dependents; (d) liabilities, if any, particularly whether there are any overdue amounts to any public financial institution or government dues; and (e) the educational qualifications of the candidate., The Court observed that the Election Commission of India can ask candidates to disclose information about the expenditure incurred by political parties to maintain the purity of elections. However, the operative portion of the judgment did not reflect this observation., Pursuant to the decision of the Supreme Court of India in ADR, Parliament amended the Representation of the People Act to incorporate some of the directions issued by the Court. Section 33‑B of the Representation of the People Act stipulated that the candidate need not disclose any other information (other than the information required by law) notwithstanding any judgment. In PUCL v. Union of India, proceedings were initiated before the Supreme Court of India under Article 32 for challenging Section 33‑B of the Representation of the People Act.
id_1393	3	Justice M B Shah, writing for the majority, noted that the decision of the three‑Judge Bench in Association for Democratic Reforms (ADR) (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 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 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 ADR (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 ADR (supra) were not construed to be inflexible and immutable theorems. The learned Judge observed that though the 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 ADR (supra) cannot be elevated to the realm of fundamental rights., The majority was of the view that the voters have a fundamental right to all the information which was directed to be declared by the Supreme Court of India in ADR (supra). Justice Venkatarama Reddi disagreed. In the opinion of the learned Judge, only certain information directed to be disclosed in ADR (supra) is crucial and essential to the right to information of the voter., In my view, the points of disclosure spelt out by this Court 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 this Court proceeds to make a legislation providing only for a semblance or pittance of information or omits to provide for disclosure on certain essential points, the law would then fail to pass the muster of Article 19(1)(a). Though certain amount of deviation from the aspects of disclosure spelt out by this 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 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: a. 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 b. 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 ADR (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 ADR (supra) and PUCL (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 the first and the second 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 ADR (supra), this Court 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 PUCL (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; and 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 ADR (supra), this Court notes that such information would enable voters to determine if the candidate is corrupt and would further openness in democracy., The learned Judges in PUCL (supra) differed to the extent of what they considered essential information for exercising the choice of voting., While relying on the judgments of the Supreme Court of India in ADR (supra) and PUCL (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) above is in the affirmative, whether information on the funding of political parties is essential for exercising choice on voting. c. The focal point of the electoral process: candidate or political party., The decisions in ADR (supra) and PUCL (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 PUCL (supra) and ADR (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 59‑6 and 10‑97 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., The effect of the provisions of the Symbols Order is that the symbols of certain political parties, particularly those which have enjoyed the status of a recognised political party for long, are entrenched in the minds of the voters that they associate the symbol with the political party., 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., Gayatri Devi, the third Maharani consort of Jaipur who was later set up as a candidate by the Swatantra Party, recalls in her autobiography that her team spent hours trying to persuade the voters that they had to vote for the Symbol Star (which was the symbol of the Swatantra Party) and not a symbol showing a horse and a rider because she also rode a horse. Since most of India is illiterate, at the polls people vote according to a visual symbol of their party. The Swatantra Party had a star. Baby, all my other helpers and I spent endless frustrating hours trying to instruct the women about voting for the star. On the ballot sheet, we said, over and over again, this is where the Maharani’s name will appear and next to it will be a star. But it was not as simple as that. They noticed a symbol showing a horse and a rider, agreed with each other that the Maharani rides so that must be her symbol. Repeatedly we said, No, no, that’s not the right one. Then they caught sight of the emblem of a flower. Ah, the flower of Jaipur – who else could it mean but the Maharani? No, no, no, not the flower. All right, the star. Yes, that seems appropriate for the Maharani, but look, here is the sun. If the Maharani is a star, then the sun must certainly mean the Maharaja. We’ll vote for both. Immediately the vote would have been invalidated. Even up to the final day, Baby and I were far from sure that we had managed to get our point across., 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 electoral 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 recommendations of the Sarkaria Commission on the exercise of 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 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, this 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 ADR (supra) and PUCL (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 PUCL (supra) and ADR (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.
id_1393	4	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 of India 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 contributing to the inequality is the difference in the ability of persons to influence political decisions because of economic inequality. In a politically equal society, citizens must have an equal voice to influence the political process. We have previously elucidated the close association of money and politics, explaining the influence of money over electoral outcomes. The influence of money over electoral politics is not limited to electoral outcomes; it also spills over to governmental decisions. The legal regime in India does not distinguish between campaign funding and electoral funding. Money donated to political parties is used not only for electoral campaigns but also for building party offices and paying party workers. Contributions can be made throughout the year and may be spent for purposes other than election campaigning. In light of the nexus between economic inequality and political inequality, and the legal regime regulating party financing, the essentiality of 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, enhancing 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 such contributions could lead to quid pro quo arrangements, such as introducing a policy change or granting a licence to the contributor. Money contributed can influence electoral outcomes as well as policies, particularly because contributions are not limited to the campaign period. Financial contributions may be made even after a political party or coalition forms government, increasing the possibility of quid pro quo. Information about political funding would enable a voter to assess whether there is a correlation between policy making and financial contributions., For information on donor contributions to be relevant and essential, voters should not have to take the initiative to peruse the list of contributors. Electronic and print media would present information on contributions received by political parties and the probable link between contributions and licences granted to companies 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. A political party cannot enter into a quid pro quo arrangement if it is unaware of the donor. The Electoral Bond Scheme defines an electoral bond as a bearer banking instrument that does not carry the name of the buyer or payee. The Scheme also stipulates that information furnished by the buyer shall be treated as confidential and shall not be disclosed by any authority except when demanded by a competent court or a law enforcement agency upon registration of a criminal case., The Union of India submits that the political party receiving the contribution does not know the identity of the contributor because the bond does not bear a name and the bank cannot disclose such details to the party. We do not agree with this submission. While the law prescribes anonymity as a central characteristic of electoral bonds, de jure anonymity does not translate to de facto anonymity. The Scheme is not fool‑proof; there are gaps that enable political parties to know the particulars of contributions. 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 bond to an office bearer of the party, send it to the party office with the name of the contributor, or disclose the particulars after depositing the bond. Further, ninety‑four percent of contributions through electoral bonds have been made in the denomination of one crore rupees. Electoral bonds provide economically resourced contributors who already have a seat at the table with selective anonymity vis‑vis the public, not the political party., In view of the above discussion, we are of the opinion that information about funding to a political party is essential for a voter to exercise the freedom to vote effectively. The Electoral Bond Scheme and the impugned provisions, to the extent that they infringe upon the right to information of the voter by anonymising contributions, are violative of Article 19(1)(a) of the Constitution of India., The next issue 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 a violation of a fundamental right is justified. The standard comprises: (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 the 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 whether the objective of introducing the law is a legitimate purpose for the infringement of rights. The State must demonstrate that the objective is legitimate and that the law is indeed in furtherance of that legitimate aim., The former 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 incentivise donations to political parties through banking channels; both donor and donee were granted exemption from payment of tax if accounts of contributions were maintained and returns were filed, but the situation only marginally improved, and parties continue to receive funds through anonymous sources; (b) donors have been reluctant to donate through the banking channel because 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 that this purpose could be achieved only if information about political donations is kept confidential, i.e., donor privacy is a means to incentivise contributions through the banking channel. However, Mr Tushar Mehta argued that protecting donor privacy is an end in itself., We will now determine if the infringement of the right to information of voters is justified with respect to (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 be justified only if the purpose of the restriction is traceable to the grounds stipulated in Article 19(2). They contend that the purpose of curbing black money cannot be traced to any of those grounds and therefore 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 be restricted on the grounds of: (a) sovereignty and integrity of India; (b) 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, but public interest is not one of the grounds in Article 19(2). Of the rights recognised under Article 19, only Article 19(1)(g), 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 the 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 curtails the freedom of speech guaranteed under Article 19(1)(a) and that the freedom cannot be restricted on any ground other than those stipulated in Article 19(2)., In Express Newspapers v. Union of India, a Constitution Bench 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 affirmed that the grounds stipulated in Article 19(2) are exhaustive of the restrictions that 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 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, Justice Reddi, in his concurring opinion, noted that the right under Article 19(1)(a) can be restricted on grounds that are not strictly within the confines of Article 19(2) when necessary for national or societal interest., In Cricket Association of Bengal v. Union of India, Justice P B Sawant wrote that Article 19(1)(a) can only be restricted on the grounds mentioned in Article 19(2). The Court distinguished broadcasting, a use of a public good, and held that restrictions based on public interest are permissible in that specific context, but cautioned that such implied grounds should not be read into other cases., 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). While curbing black money might be argued to fall under public order, the Supreme Court has interpreted the ground of public order to mean public safety and tranquility, not economic offences such as black money. Therefore, the purpose of curbing black money is not traceable to any ground in Article 19(2)., Assuming, for the sake of argument, that curbing black money is a legitimate purpose, the second prong of the proportionality analysis requires the State to assess whether the means used are rationally connected to the purpose. The means need not be the only means capable of achieving the purpose; it is sufficient if they constitute one of many methods that can partially give effect to the purpose., The respondents submit that before the introduction of the Electoral Bond Scheme, a major portion of total contributions received by political parties was from unknown sources. For example, in the financial year 2016‑17, immediately preceding the Scheme, eighty‑one percent of contributions (Rs 580.52 crore) were received through voluntary contributions, which are not regulated and allowed the circulation of black money. After the introduction of the Scheme, forty‑seven percent of contributions were received through electoral bonds, which are regulated. The Union of India argues that providing anonymity to contributors incentivises them to contribute through the banking channel, establishing a rational nexus between non‑disclosure of information and the goal of curbing black money., The next stage of the proportionality standard is the least restrictive means stage. The Supreme Court must determine whether anonymity of the contributor is the least restrictive means to achieve the purpose, considering: (a) whether other possible means exist; (b) whether those alternatives would realise the objective in a real and substantial manner; (c) whether the alternatives impact fundamental rights differently; and (d) whether, on overall comparison, an 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 Rs 2,000 can only be made by an account‑payee cheque, an account‑payee bank draft, electronic clearing system through a bank account, or through an electoral bond. Cash contributions cannot be assumed to be black money; small cash donations during party rallies are common. Contributions through banking channels are accounted transactions. Restricting cash contributions to less than Rs 2,000 and prescribing that larger contributions be made through banking channels is itself intended to curb black money. Thus, the legal regime provides alternatives to curb black money: contributions through cheques, bank drafts, or electronic clearing systems., The Union of India submits that although these alternatives exist, they do not realise the objective in a substantial manner because most contributors resort to cash donations out of fear of consequences from political opponents., In addition to the above alternatives, the existing legal regime provides for Electoral Trusts. Section 2(22AA) of the Information Technology Act defines an Electoral Trust as a trust approved by the Board in accordance with a scheme made 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 trust if it distributes ninety‑five percent of the aggregate donations received during the previous year. Under Rule 17CA of the Information Technology Rules 1962, an Electoral Trust may receive voluntary contributions from (i) an individual who is a citizen of India; (ii) a company registered in India; (iii) a firm, Hindu undivided family, or an association of persons or a body of individuals residing in India. When a contribution is made, a receipt must record the name and address of the contributor, PAN or passport number, amount contributed, mode of contribution including bank details and date, and PAN of the trust. Contributions can only be made through cheque, bank draft, or electronic transfer; cash is not accepted. The trust must spend five percent of total contributions received in a year, subject to limits, and distribute the remaining ninety‑five percent to political parties registered under Section 29A of the Representation of the People Act. The political party receiving the money must provide a receipt indicating its name, PAN, and amount received. The trust must maintain a list of contributors and recipients and furnish a certified copy of these lists along with an audit report to the Commissioner of Income Tax., In summary, an Electoral Trust is formed solely for collecting political contributions from donors and can contribute to more than one party. For example, if ten individuals and one company contribute to a trust and the trust distributes the donations to three political parties, the information about which individual contributed to which party will not be disclosed. In this manner, the purpose of curbing black money in electoral financing can be met while avoiding fear of consequences from political opponents because the link between donor and specific party is not disclosed., On 6 June 2014, the Election Commission of India circulated guidelines for submission of contribution reports of Electoral Trusts, mandating that all Electoral Trusts submit an annual report containing details of contributions received and disbursed to political parties. Pursuant to the guidelines, Electoral Trusts submit annual reports to the Election Commission of India every year.
id_1393	5	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 that there would 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. The 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 scheme 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. The 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 the Supreme Court of India 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 the Supreme Court of India 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)., The Supreme Court of India 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 the Supreme Court of India 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. In fact, it is control regard being had to another person's right to go to court and state that he has been wronged and abused. He can take recourse to a procedure recognised and accepted in law to retrieve and redeem his reputation. Therefore, the balance between the two rights needs to be struck. Reputation of one cannot be allowed to be crucified at the altar of the other's right of free speech. The legislature in its wisdom has not thought it appropriate to abolish criminality of defamation in the obtaining social climate., The judgment of this Court in Mazdoor Kisan Shakti 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, 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 (J) 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, 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‑pronged 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 (J) (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 Aadhar 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 Aadhar 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.
id_1393	6	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: Take the example of 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 of clear public interest in favour of disclosure. The reasons for the leave may also include medical information with respect to the public employee, creating a clear privacy interest in favour of 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 and 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. The Indian Courts adopt a four prong structured proportionality standard to test the infringement of the fundamental rights. In the last stage of the analysis, the Supreme Court of India undertakes a balancing exercise to analyse if 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 undertakes an analysis of the comparative importance of the considerations involved in the case, the justifications for the infringement of the rights, and if 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 Courts 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 the rights where rights A and B are in conflict: b. Whether the measure is a suitable means for furthering right A and right B; 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 and right B., Validity of the Electoral Bond Scheme, Section 11 of the Finance Act and Section 137 of the Finance Act. To recall, Section 13A of the Information Technology Act before the amendment mandated that the political party must maintain a record of contributions in excess of rupees twenty thousand. 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 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 People Act by which a political party is now not required to include contributions received by electoral bonds in its 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 People Act to implement the Electoral Bond Scheme because the Electoral Bond 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 (9J) (supra), the Supreme Court of India did not trace the right to privacy only to Article 21. This Court 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 very well 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 the 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 has to 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 if 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 the purposes, that is, informational privacy of the political contributions and disclosure of information to the voter. It is not necessary that the means chosen should 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 by prescribing non-disclosure of information about political funding shares a nexus with the purpose. The non-disclosure of information grants anonymity to the contributor, thereby protecting information 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 with 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 can never be fulfilled by absolute non-disclosure. The measure adopted does not satisfy the suitability prong vis‑vis 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. To recall, 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 realizing the purpose and the impact on fundamental rights., The provisions of the Representation of People Act provide an alternative measure. Section 29C states that contributions in excess of rupees twenty thousand 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 of the Information Technology Act requires the political party to maintain a record of the contributions made in excess of rupees twenty thousand. Section 29C of the Representation of People Act requires the political party to disclose information about contributions in excess of rupees twenty thousand made by a person or company in a financial year. Section 13A mandates record keeping of every contribution. On the other hand, Section 29C mandates disclosure of information of contributions beyond rupees twenty thousand 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 rupees twenty thousand as the threshold where the considerations of disclosure of information of political contribution outweigh the considerations of informational privacy. It could very well be debated whether rupees twenty thousand is on the lower or higher range of the spectrum. However, that is not a question for this Court to answer in this batch of petitions. The petitioners have not challenged the threshold of rupees twenty thousand prescribed for the disclosure of information prescribed by Section 29C. They have only raised a challenge to the disclosure exception granted to contributions by Electoral Bonds. Thus, this Court 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 rupees twenty thousand is an alternative means to achieve the purposes of securing the 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 that the disclosure of such information would indicate their political affiliation and curb various forms of political expression and association., It is quite possible that contributions which are 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 realizes 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 realizes 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 rights of informational privacy to 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 People Act are unconstitutional. The question is whether this Court 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 the 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) to 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 Section 182(3) as it existed before the amendment, if a company contributed rupees twenty thousand 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. However, after the 2017 amendment, the company is only required to disclose that it contributed rupees twenty thousand to a political party under the provision 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 was widely defined in the 1985 amendment (which was 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 by political parties. This requirement would ensure that the money which is 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 since 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 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) not only applies to contributions made through electoral bonds but through all modes of transfer. In terms of the provisions of the Representation of 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 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 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 it was contended, violates 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. Regardless of the same, 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 under what 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 by giving particulars of the total amount contributed and the name of the party, individual, or body to which or to whom 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, in the process 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 or amounts 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 of the fact 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 purposes 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., At the outset, the relevant question that this Court 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 as well the executive organs of the State to secure to all persons within the territory of India equality before law and equal protection of the laws. Traditionally, Article 14 was understood to only guarantee non‑discrimination. In this context, Courts held that Article 14 does not forbid all classifications but only that which is discriminatory. In State of West Bengal v. Anwar Ali Sarkar, Justice S R Das (as the learned Chief Justice then was) laid down the following two conditions which a legislation must satisfy to get over 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, this Court followed this traditional approach to test the constitutionality of a legislation on the touchstone of Article 14.
id_1393	7	In E P Royappa v. State of Tamil Nadu, 182 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 (as the learned Chief Justice then was), speaking for the Bench, observed that equality is a dynamic concept with many aspects and dimensions which cannot be confined within traditional and 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, 183 a Constitution Bench of Supreme Court of India considered it to be 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 a legislative action. He observed that wherever therefore there is arbitrariness in State action whether it be of the legislature or of the executive or of an authority under Article 12, Article 14 immediately springs into action and strikes down such State action., Immediately after the judgment in Ajay Hasia (supra), Justice E S Venkataramaiah (as the learned Chief Justice then was) in Indian Express Newspapers (Bombay) (Petitioner) Ltd. v. Union of India, 184 laid down the test of manifest arbitrariness with respect to subordinate legislation. It was held that a subordinate legislation does not carry the same degree of immunity enjoyed by a statute passed by a competent legislature. Therefore, Supreme Court of India held that a subordinate legislation may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary., In Sharma Transport v. Government of Andhra Pradesh, 185 Supreme Court of India reiterated Indian Express Newspapers (supra) by observing that the test of arbitrariness as applied to an executive action cannot be applied to delegated legislation. It was held that to declare a delegated legislation as arbitrary, it must be shown that it was not reasonable and manifestly arbitrary. This Court further defined arbitrariness to mean in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in the nature of things, non-rational, not done or acting according to reason or judgment, depending on the will alone., While Supreme Court of India accepted it as a settled proposition of law that a subordinate legislation can be challenged on the ground of manifest arbitrariness, there was still some divergence as to the doctrine's application with respect to plenary legislation. In State of Tamil Nadu v. Ananthi Ammal, 186 a three‑Judge Bench of Supreme Court of India 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, 187 a three‑Judge Bench of Supreme Court of India invalidated legislation on the ground that it was arbitrary and in violation of Article 14. However, in State of Andhra Pradesh v. McDowell & Co., 188 another three‑Judge Bench of Supreme Court of India held that a plenary legislation cannot be struck down on the ground that it is arbitrary or unreasonable. In McDowell (supra), Supreme Court of India held that legislation can be invalidated only on two grounds: first, lack of legislative competence; and second, violation of any fundamental right guaranteed in Part III of the Constitution or any other constitutional provision., This divergence became more apparent when a three‑Judge Bench of Supreme Court of India in Malpe Vishwanath Acharya v. State of Maharashtra, 189 invalidated certain provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 relating to the determination and fixation of the standard rent. The Court declared the provisions unreasonable, arbitrary, and violative of Article 14. However, the Court did not strike down the provisions on the ground that the extended period of the statute was to come to an end very soon, requiring the government to reconsider the statutory provisions. Similarly, in Mardia Chemicals Ltd. v. Union of India, 190 another three‑Judge Bench of Supreme Court of India 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, 191 a Constitution Bench of Supreme Court of India referred to McDowell (supra) to observe that a law may not be struck down as arbitrary without a constitutional infirmity. Thus, it was held that a mere finding of arbitrariness was not sufficient to invalidate legislation. The Court has to enquire whether the legislation contravened any other constitutional provision or principle., In Shayara Bano v. Union of India, 192 a Constitution Bench of Supreme Court of India set aside the practice of Talaq‑e‑Bidaat (Triple Talaq). Section 2 of the Muslim Personal Law (Shariat) Act, 1937 was also impugned before Supreme Court of India. The provision provides that the personal law of the Muslims, that is Shariat, will be applicable in matters relating to marriage, dissolution of marriage and talaq. Justice R F Nariman, speaking for the majority, held that Triple Talaq is manifestly arbitrary because it allows a Muslim man to capriciously and whimsically break a marital tie without any attempt at reconciliation to save it. Thus, Justice Nariman applied the principle of manifest arbitrariness for the purpose of testing the constitutional validity of the legislation on the touchstone of Article 14., Justice Nariman traced the evolution of non‑arbitrariness jurisprudence in India to observe that McDowell (supra) failed to consider two binding precedents, namely, Ajay Hasia (supra) and K R Lakshmanan (supra). Supreme Court of India further observed that McDowell (supra) did not notice Maneka Gandhi v. Union of India, 193 where Supreme Court of India held that substantive due process is a part of Article 21 which has to be read along with Articles 14 and 19 of the Constitution. Therefore, Justice Nariman held that arbitrariness of a legislation is a facet of unreasonableness in Articles 19(2) to (6) and therefore arbitrariness can also be used as a standard to strike down legislation under Article 14. It held McDowell (supra) to be per incuriam and bad in law., Shayara Bano (supra) clarified In Re Special Reference No. 1 of 2012 (supra) by holding that a finding of manifest arbitrariness is in itself a constitutional infirmity and, therefore, a ground for invalidating legislation for the violation of Article 14. Moreover, it was held that there is no rational distinction between subordinate legislation and plenary legislation for the purposes of Article 14. Accordingly, the test of manifest arbitrariness laid down by Supreme Court of India in Indian Express Newspapers (supra) in the context of subordinate legislation was also held to be applicable to plenary legislation. In conclusion, Supreme Court of India held that manifest arbitrariness must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. It was further held that a legislation which is excessive and disproportionate would also be manifestly arbitrary. The doctrine of manifest arbitrariness has been subsequently reiterated by Supreme Court of India in numerous other judgments., The standard of manifest arbitrariness was further cemented by the Constitution Bench of Supreme Court of India in Navtej Singh Johar v. Union of India, 194. In Navtej Singh Johar (supra), Section 377 of the Indian Penal Code, 1860 was challenged, inter alia, on the ground it is manifestly arbitrary. Section 377 criminalized any person who has had voluntary carnal intercourse against the order of nature. Chief Justice Dipak Misra (writing for himself and Justice A M Khanwilkar) held that Section 377 is manifestly arbitrary for failing to make a distinction between consensual and non‑consensual sexual acts between consenting adults. Justice Nariman, in the concurring opinion, observed that Section 377 is manifestly arbitrary for penalizing consensual gay sex. Justice Nariman faulted the provision for (a) not distinguishing between consensual and non‑consensual sex for the purpose of criminalization; and (b) criminalizing sexual activity between two persons of the same gender. Justice D Y Chandrachud noted that Section 377 to the extent that it penalizes physical manifestation of love by a section of the population (the LGBTQ+ community) is manifestly arbitrary. Similarly, Justice Indu Malhotra observed that the provision is manifestly arbitrary because the basis of criminalization is the sexual orientation of a person which is not a rational principle., In Joseph Shine v. Union of India, 199 a Constitution Bench of Supreme Court of India expressly concurred with the doctrine of manifest arbitrariness as evolved in Shayara Bano (supra). In Joseph Shine (supra), Justice D Y Chandrachud observed that the doctrine of manifest arbitrariness serves as a check against state action or legislation which has elements of caprice, irrationality or lacks an adequate determining principle. In Joseph Shine (supra), the validity of Section 497 of the Indian Penal Code was challenged. Section 497 penalized a man who has sexual intercourse with a woman who is and whom he knows or has a reason to believe to be the wife of another man, without the consent and connivance of that man for the offence of adultery. Justice Nariman observed that the provision has paternalistic undertones because the provision does not penalize a married man for having sexual intercourse with a married woman if he obtains her husband’s consent. The learned Judge observed that the provision treats a woman like a chattel: ... This archaic law has long outlived its purpose and does not square with today’s constitutional morality, in that the very object with which it was made has since become manifestly arbitrary, having lost its rationale long ago and having become in today’s day and age, utterly irrational. On this basis alone, the law deserves to be struck down, for with the passage of time, Article 14 springs into action and interdicts such law as being manifestly arbitrary., Justice Nariman further observed that the ostensible object of Section 497 as pleaded by the State which is to preserve the sanctity of marriage is not in fact the object of the provision because: (a) the sanctity of marriage can be destroyed even if a married man has sexual intercourse with an unmarried woman or a widow; and (b) the offence is not committed if the consent of the husband of the woman is sought. Justice D Y Chandrachud in his opinion observed that a provision is manifestly arbitrary if the determining principle of it is not in consonance with constitutional values. The opinion noted that Section 497 makes an ostensible effort to protect the sanctity of marriage but in essence is based on the notion of marital subordination of women which is inconsistent with constitutional values. Chief Justice Misra (writing for himself and Justice A M Khanwilkar) held that the provision is manifestly arbitrary for lacking logical consistency since it does not treat the wife of the adulterer as an aggrieved person and confers a license to the husband of the woman., It is now a settled position of law that a statute can be challenged on the ground it is manifestly arbitrary. The standard laid down by Justice Nariman in Shayara Bano (supra) has been cited with approval by the Constitution Benches in Navtej Singh Johar (supra) and Joseph Shine (supra). Courts while testing the validity of a law on the ground of manifest arbitrariness have to determine if the statute is capricious, irrational and without adequate determining principle, or something which is excessive and disproportionate. This Court has applied the standard of manifest arbitrariness in the following manner: a. A provision lacks an adequate determining principle if the purpose is not in consonance with constitutional values. In applying this standard, Courts must make a distinction between the ostensible purpose, that is, the purpose which is claimed by the State and the real purpose, the purpose identified by Courts based on the available materials such as a reading of the provision; and b. A provision is manifestly arbitrary even if the provision does not make a classification., This Court in previous judgments has discussed the first of the above applications of the doctrine by distinguishing between the ostensible purpose and the real purpose of a provision with sufficient clarity. The application of the doctrine of manifest arbitrariness by Chief Justice Misra and Justice Nariman in Navtej Singh Johar (supra) to strike down a provision for not classifying between consensual and non‑consensual sex must be understood in the background of two jurisprudential developments on the interpretation of Part III of the Constitution. The first is the shift from reading the provisions of Part III of the Constitution as isolated silos to understanding the thread of reasonableness which runs through all the provisions and elevating unreasonable (and arbitrary) action to the realm of fundamental rights. The second is the reading of Article 14 to include the facets of formal equality and substantive equality. Article 14 consists of two components. Equality before the law which means that the law must treat everybody equally in the formal sense. Equal protection of the laws signifies a guarantee to secure factual equality. The legislature and the executive make classifications to achieve factual equality. The underlying premise of substantive equality is the recognition that not everybody is equally placed and that the degree of harm suffered by a group of persons (or an individual) varies because of unequal situations. Supreme Court of India has in numerous judgments recognized that the legislature is free to recognize the degrees of harm and confine its benefits or restrictions to those cases where the need is the clearest. The corollary of the proposition that it is reasonable to identify the degrees of harm, is that it is unreasonable, unjust, and arbitrary if the Legislature does not identify the degrees of harm for the purpose of law., It is undoubtedly true that it is not the constitutional role of 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 therefore, the courts will always presume that the legislature is supposed to know and will be aware of the needs of the people. Moreover, Supreme Court of India must be mindful of falling into an error of equating a plenary legislation with a subordinate legislation. In Re Delhi Laws Act 1912, Justice Fazl Ali summed up the extent and scope of plenary legislation and delegated legislation, in the following terms: (1) The legislature must normally discharge its primary legislative function itself and not through others. (2) Once it is established that it has sovereign powers within a certain sphere, it must follow as a corollary that it is free to legislate within that sphere in any way which appears to it to be the best way to give effect to its intention and policy in making a particular law, and that it may utilise any outside agency to any extent it finds necessary for doing things which it is unable to do itself or finds it inconvenient to do. In other words, it can do everything which is ancillary to and necessary for the full and effective exercise of its power of legislation. (3) It cannot abdicate its legislative functions, and therefore while entrusting power to an outside agency, it must see that such agency acts as a subordinate authority and does not become a parallel legislature. (4) The doctrine of separation of powers and the judicial interpretation it has received in America ever since the American Constitution was framed, enables the American courts to check undue and excessive delegation but the courts of this country are not committed to that doctrine and cannot apply it in the same way as it has been applied in America. Therefore, there are only two main checks in this country on the power of the legislature to delegate, these being its good sense and the principle that it should not cross the line beyond which delegation amounts to abdication and self‑effacement., In Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. Assistant Commissioner of Sales Tax and others, 205 a Constitution Bench of Supreme Court of India held that a subordinate legislation is ancillary to the statute. Therefore, the delegate must enact the subordinate legislation consistent with the law under which it is made and cannot go beyond the limits of the policy and standard laid down in the law. Since the power delegated by a statute is limited by its terms, the delegate is expected to act in good faith, reasonably, within the power granted and on relevant consideration of material facts. Supreme Court of India has to be cognizant of this distinction. In fact, the doctrine of manifest arbitrariness, as developed by Supreme Court of India in Indian Express Newspapers (supra) in the context of subordinate legislation, was applicable to the extent that it is so arbitrary that it could not be said to be in conformity with the statute or that it offends Article 14 of the Constitution., The above discussion shows that manifest arbitrariness of a subordinate legislation has to be primarily tested vis‑à‑vis its conformity with the parent statute. Therefore, in situations where a subordinate legislation is challenged on the ground of manifest arbitrariness, Supreme Court of India will proceed to determine whether the delegate has failed to take into account very vital facts which either expressly or by necessary implication are required to be taken into consideration by the statute or, say, the Constitution. In contrast, application of manifest arbitrariness to a plenary legislation passed by a competent legislature requires the Court to adopt a different standard because it carries greater immunity than a subordinate legislation. We concur with Shayara Bano (supra) that a legislative action can also be tested for being manifestly arbitrary. However, we wish to clarify that there is, and ought to be, a distinction between plenary legislation and subordinate legislation when they are challenged for being manifestly arbitrary., Validity of Section 154 of the Finance Act 2017 omitting the first proviso to Section 182 of the Companies Act 199. We now turn to examine the vires of Section 154 of the Finance Act 2017. The result of the amendment is that: (a) a company, other than a government company and a company which has been in existence for less than three financial years, can contribute unlimited amounts to any political party; and (b) companies, regardless of the fact whether they are profit making or otherwise, can contribute funds to political parties. The issue that arises for consideration is whether the removal of contribution restrictions is manifestly arbitrary and violates Article 14 of the Constitution., As discussed in the earlier section, Supreme Court of India 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 also observed that most business houses already know where their interest lies and they make their contributions accordingly to that political party which is likely to advance their interest more. This issue becomes particularly problematic when we look at the avenues through which political parties accumulate their capital. Section 182 of the 2013 Act is one such legal provision allowing companies to contribute to political parties. The question before us is not how political parties expend their financial resources, but how they acquire their financial resources in the first instance., The Preamble to the Constitution describes India as a democratic republic: a democracy in which 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. Democracy sustains because the elected are responsive to the electors who hold them accountable for their actions and inactions. Would we remain a democracy if the elected do not heed to the hue and cry of the needy? We have established the close relationship between money and politics above where we explained the importance of money for entry to politics, for winning elections, and for remaining in power. That being the case, the question that we ask ourselves is whether the elected would truly be responsive to the electorate if companies which bring with them huge finances and engage in quid pro quo arrangements with parties are permitted to contribute unlimited amounts. The reason for political contributions by companies is as open as daylight. Even the learned Solicitor General did not deny during the course of the hearings that corporate donations are made to receive favors through quid pro quo arrangements., In Kesavananda Bharati v. State of Kerala, 210 the majority of Supreme Court of India held that republican and democratic form of government form the basic elements of the constitutional structure. Subsequently, in Indira Nehru Gandhi v. Raj Narain, 211 Justice H R Khanna reiterated that the democratic set up of government is a part of the basic features of the Constitution. Elections matter in democracy because they are the most profound expression of the will of the people. Our parliamentary democracy enables citizens to express their will through their elected representatives. The integrity of the electoral process is a necessary concomitant to the maintenance of the democratic form of government., This Court has also consistently held that free and fair elections form an important concomitant of democracy. In Kuldip Nayar v. Union of India, 214 a Constitution Bench of Supreme Court of India 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, 215 Supreme Court of India held that free and fair elections denote equal opportunity to all people. It was further observed that a free and fair election is one which is not rigged and manipulated and the candidates and their agents are not able to resort to unfair means and malpractices., The integrity of the election process is pivotal for sustaining the democratic form of government. The Constitution also places the conduct of free and fair elections in India on a high pedestal. To this purpose, Article 324 puts the Election Commission in charge of the entire electoral process commencing with the issue of the notification by the President to the final declaration of the result. However, it is not the sole duty of the Election Commission to secure the purity and integrity of the electoral process. There is also a positive constitutional duty on the other organs of the government, including the legislature, executive and the judiciary, to secure the integrity of the electoral process., During the course of the arguments, the learned Solicitor General submitted that the limit of seven and a half percent of the average net profits in the preceding three financial years was perceived as a restriction on companies who would want to donate in excess of the statutory cap. The learned Solicitor General further submitted that companies who wanted to donate in excess of the statutory cap would create shell companies and route their contributions through them. Therefore, it was suggested that the statutory cap was removed to discourage the creation of shell companies., The limit on restrictions to political parties was incorporated in Section 293A of the 1956 Act through the Companies (Amendment) Bill 1985. The original restriction on contribution was five per cent of a company’s average net profits during the three immediately preceding financial years. The Lok Sabha debates pertaining to the Companies Bill furnish an insight into why contribution restrictions were imposed in the first place. The then Minister of Chemicals and Fertilizers and Industry and Company Affairs justified the contribution restrictions, stating that: Since companies not having profits should not be encouraged to make political contributions, monetary ceiling as an alternative to a certain percentage of profits for arriving at the permissible amount of political donation has 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 the condition that only companies which have been in existence for more than three years can contribute. This condition was also included to prevent loss‑making companies and shell companies from making financial contributions to political parties. If the ostensible object of the amendment, as contended by the learned Solicitor General, was to discourage the creation of shell companies, there is no justification for removing the cap on contributions which was included for the very same purpose: to deter shell companies from making political contributions. In fact, when the proposal to amend Section 182 of the 2013 Act was mooted by the Government in 2017, the Election Commission of India opposed the amendment and suggested that the Government reconsider its decision on the ground that it would open up the possibility of creating shell companies., After the amendment, companies similar to individuals, can make unlimited contributions and contributions can be made by both profit‑making and loss‑making companies to political parties. Thus, in essence, it could be argued that the amendment is merely removing classification for the purpose of political contribution between companies and individuals on the one hand and loss‑making and profit‑making companies on the other. The proposition on the principle of manifest arbitrariness culled out above needs to be recalled.
id_1393	8	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. Election Commission of India, Letter dated 26 May 2017, No. 56/PPEMS/Transparency/2017., 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 long 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 of the Companies Act 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 the political fray by making contributions to political parties. The amendment to Section 182 by permitting unlimited corporate contributions, including by shell companies, authorizes 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 amendment to Section 182 of the Companies Act must be read along with other provisions on financial contributions to political parties under the Representation of the People Act and the Income Tax Act. Neither the Representation of the People Act nor the Income Tax Act place a cap on the contributions which can be made by an individual. The amendment to the Companies Act, when viewed along with other provisions on electoral funding, seeks to equalize an individual and a company for the purposes of electoral funding., 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 recognize 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 to Section 182 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., Conclusion and Directions: 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., 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., Paragraph 13 of the interim order reads: '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.' Paragraph 14 reads: '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 does not limit the operation of Paragraph 13. Paragraph 13 contains an unequivocal direction 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 immediately stop the issuance of Electoral Bonds; (b) State Bank of India shall submit details of the Electoral Bonds purchased since the interim order of this Court dated 12 April 2019 till date to the Election Commission of India, including the date of purchase of each Electoral Bond, the name of the purchaser 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 this Court dated 12 April 2019 till date to the Election Commission of India, including the date of encashment and the denomination of each 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 receipt of the information, that is, by 13 March 2024; and (f) Electoral Bonds which are within the validity period of fifteen days but have not been encashed by the political party 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 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., Justice Dhananjaya Y. Chandrachud, Justice J. B. Pardiwala, Justice Manoj Misra. New Delhi; 15 February 2024., Section 29C, Representation of the People Act 1951 (as amended by Section 137 of the Finance Act 2017) – Declaration of donation received by political parties. (1) The treasurer of a political party or any other person authorized by the political party in this behalf shall, in each financial year, prepare a report of (a) the contribution in excess of twenty thousand rupees received by such political party from any person in that financial year; and (b) the contribution in excess of twenty thousand rupees received by such political party from companies other than Government companies in that financial year. (2) The report shall be in such form as may be prescribed. (3) The report for a financial year shall be submitted by the treasurer or authorized person before the due date for furnishing a return of income of that financial year under section 139 of the Income Tax Act, 1961, to the Election Commission of India. (4) Where the treasurer or authorized person fails to submit a report, then, notwithstanding anything contained in the Income Tax Act, 1961, such political party shall not be entitled to any tax relief under that Act. The provision includes a proviso that the above does not apply to contributions received by way of an electoral bond. For the purposes of this subsection, '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., Section 182, Companies Act 2013 (as amended by Section 154 of the Finance Act 2017) – Prohibitions and restrictions regarding political contributions. (1) Notwithstanding anything contained in any other provision of this Act, 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, provided that 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. No such contribution shall be made unless a resolution authorising the making of such contribution is passed at a meeting of the Board of Directors, and such resolution shall be deemed to be justification in law for the making and acceptance of the contribution. (3) Every company shall disclose in its profit and loss account the total amount contributed by it during the financial year, giving particulars of the total amount contributed and the name of the party to which such amount has been contributed. (3A) The contribution shall be made only by an account‑payee cheque, account‑payee bank draft, or electronic clearing system through a bank account., Section 13A, Income Tax Act 1995 (as amended by Section 11 of the Finance Act 2017) – 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 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) the political party keeps and maintains books of account and other documents enabling the Assessing Officer to properly deduce its income; (b) in respect of each voluntary contribution in excess of ten thousand rupees, the political party keeps a record of such contribution and the name and address of the contributor; and (c) the accounts of the political party are audited by an accountant as defined in the Explanation to sub‑section (2) of section 288. For the purposes of this section, 'political party' means an association or body of individual citizens of India registered with the Election Commission of India as a political party under paragraph 3 of the Election Symbols (Reservation and Allotment) Order, 1968., Section 31, Reserve Bank of India Act 1934 (as amended by Section 11 of the Finance Act 2017) – Issue of demand bills and notes. (1) 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 the 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. (2) Notwithstanding anything contained in the Negotiable Instruments Act, 1881, no person in India other than the Bank or, as expressly authorized by this Act, the Central Government shall make or issue any promissory note expressed to be payable to the bearer of the instrument. (3) Notwithstanding anything contained in this section, the Central Government may authorise any scheduled bank to issue electoral bonds. For the purposes of this subsection, '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) – Form to be filed with the Election Commission of India before the due date for furnishing a return of income of the political party under section 139 of the Income Tax Act, 1961, together with a certificate to claim exemption. The form requires details such as name of political party, status (recognised/unrecognised), address of headquarters, date of registration with the Election Commission of India, Permanent Account Number and Income Tax Ward/Circle, and details of contributions received in excess of twenty thousand rupees during the financial year, including donor name and address, PAN, amount, mode of contribution, and bank details. For corporate donors, compliance with section 293A of the Companies Act, 1956 must be certified., I have had the benefit of perusing the judgment authored by Justice D. Y. Chandrachud, the Honorable Chief Justice. I respectfully agree with the findings and conclusions recorded therein. However, since my reasoning is different to arrive at the same conclusion, including application of the doctrine of proportionality, I am penning down my separate opinion., Corporate funding of political parties has been a contentious issue with the legislature's approach varying over time. The Companies (Amendment) Act 1960 inserted section 293A into the Companies Act 1956, stipulating that contributions to political parties could not exceed five percent of the average net profit during the three immediately preceding financial years. The Companies (Amendment) Act 1969 substituted section 293A, introducing a ban on contributions to political parties. The Companies (Amendment) Act 1985 replaced section 293A, bringing back the five percent cap and requiring a board resolution authorising contributions. The Companies Act 2013 replaced the Companies Act 1956. Section 182(1) of the Companies Act 2013 permitted contributions by companies of any amount to any political party, provided the company had been in existence for more than three financial years and was not a government company, while retaining the requirement of a board resolution. The cap of five percent was enhanced to seven and a half percent of the average net profits during the three immediately preceding financial years, and companies were mandated to disclose the amount contributed in their profit and loss accounts., The Finance Act 2017 made several amendments to the Companies Act 2013, the Income Tax Act 1961, the Reserve Bank of India Act 1934, the Representation of the People Act 1951, and the Foreign Contribution Regulation Act 2010. These changes were introduced to allow contributions and donations through Electoral Bonds. The specific amendments to Section 182 of the Companies Act 2013 are summarised as follows: the prohibition on contributions by government companies remained; the aggregate amount a company may contribute in a financial year was increased to seven and a half percent of average net profits; the requirement of a board resolution authorising the contribution was retained; and disclosure requirements in the profit and loss account were specified.
id_1393	9	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 as would enable the Assessing Officer to properly deduce its income; (b) in respect of each voluntary contribution in excess of twenty thousand rupees, the political party keeps a record of the contribution and the name and address of the donor; and (c) the accounts of the political party are audited by an accountant as defined in the Explanation to sub‑section (2) of Section 288. Further, 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 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, account payee bank draft, electronic clearing system, or through an 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. The party must also furnish 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 the Central Government, as expressly authorized by this Act, shall draw, accept, make or issue any bill of exchange, hundi, promissory note or engagement for payment 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 the 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 prescribed form and must be submitted before the due date for filing the return of income under Section 139 of the Income Tax Act, 1961 to the Election Commission of India. Failure to submit the report disqualifies the political 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 not being the United Nations, its specialised agencies, the World Bank, 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; (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 government, foreign citizens, foreign corporations, or foreign trusts, societies or associations. However, where the nominal share capital is 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 contribution amount is disclosed in the profit and loss account as the total amount contributed to political parties in a financial year, but specific amounts and names of parties need not be disclosed. Section 182(3A) permits contribution only by the specified instruments, with a proviso allowing contribution through any instrument issued under a notified scheme., Section 13A of the Income Tax Act, 1961 exempts income of political parties, including financial contributions and investments, from income tax, provided the parties maintain books of accounts, records of donors contributing more than Rs 20,000, and have their accounts audited. Section 80GGB and 80GGC, inserted in 2003, allowed tax‑deductible contributions to political parties, though such contributions are not business expenses. The Finance Act, 2017 amended Section 13A to remove the requirement of maintaining records of contributions received by electoral bonds and to limit donations over Rs 2,000 to cheque, bank draft, Electronic Clearing System or bonds., Section 29C of the Representation of the People Act, 1951, introduced in 2003, requires political parties 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 file the report disqualifies the party from any tax relief. The Finance Act, 2017 amendment to Section 29C exempts disclosure of contributions received by bonds., Section 31(3) of the Reserve Bank of India Act, 1934, added by the Finance Act, 2017, enables the issuance of electoral bonds, which are bearer instruments that do not disclose the name of the buyer or the payee. The Electoral Bonds Scheme was notified on 02 January 2018 by the Department of Economic Affairs, Ministry of Finance. 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 Relief Fund. Bonds are non‑refundable., A purchaser of a bond must apply in the prescribed format, complying with the Reserve Bank’s Know Your Customer requirements. Payments for bond issuance must be made in Indian rupees through demand draft, cheque, Electronic Clearing System or direct debit. The purchaser’s identity is confidential and may be disclosed only upon order of a competent court or by a criminal investigation agency. Eligible political parties are those registered under Section 29A of the Representation of the People Act, 1951, having secured at least one percent of the votes in the last general election, and may encash bonds through their bank account in the authorised bank. Bonds are made available for purchase for ten days each quarter and an additional thirty days in a general‑election year; they are not tradable and no commission or brokerage is payable., The value of the bond is treated as income by way of voluntary contribution to the eligible political party for the purpose of tax exemption under Section 13A 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. The constitutional validity of the Scheme and the amendments is being examined, though the question of their introduction through a money bill under Article 110 is not under consideration. Other petitions challenging amendments to the Foreign Contribution Regulation Act, 2010 by the Finance Acts of 2016 and 2018 are pending., The Honorable Chief Justice observed that the Scheme cannot be tested on parameters applicable to economic policy, as 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. Judicial review principles applicable to economic policy matters, such as those in Swiss Ribbons (P.) Ltd. and Pioneer Urban Land and Infrastructure cases, do not apply., It is incorrect to state that judicial review cannot be exercised over matters pertaining to economic policy. While the legislature is given latitude in economic policy, courts must still exercise judicial 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., The doctrine of presumption of constitutionality has limits when the test of proportionality is applied. Proportionality requires a higher level of scrutiny, combining empirical and normative assessment, with the standard of proof being a civil standard or balance of probabilities. Scientific 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 information about candidates and parties., 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 candidates. Political parties select candidates, finance them, and voters elect candidates expecting the party to fulfill promises., The Tenth Schedule of the Constitution provides for disqualification of candidates on grounds of defection, reflecting 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. Public participation fulfills epistemic, ethical, and democratic functions, ensuring informed, respectful, and inclusive collective choice, as outlined by James Fishkin’s criteria for deliberative processes.
id_1393	10	Because the topics of these deliberations are issues of common concern, epistemically well‑grounded preferences, opinions, and decisions must be informed by, and take into consideration, the preferences and opinions of fellow citizens, Jane Mansbridge and others, A Systemic Approach to Deliberative Democracy in John Parkinson and Jane Mansbridge (eds), Deliberative Systems (1st edn, Cambridge University Press 2012). Substantive balance (the extent to which arguments offered by one side are answered by considerations offered by those who hold other perspectives); Diversity (the extent to which major positions in the public are represented by participants); Conscientiousness (the degree to which participants sincerely weigh the merits of the arguments); and Equal consideration (the extent to which arguments offered by all participants are considered on its merits regardless of who offered them)., The State has contested the writ petitions primarily on three grounds: Donors of a political party often apprehend retribution from other political parties or actors and thus their identities should remain anonymous. The Bonds uphold the right to privacy of donors by providing confidentiality. Further, donating money to one's preferred political party is a matter of self‑expression by the donor. Therefore, revealing the identity invades the informational privacy of donors protected by the Constitution. The identity of the donor can be revealed in exceptional cases, for instance on directions of a competent court, or registration of a criminal case by any law enforcement agency. The Scheme, by incentivising banking channels and providing confidentiality, checks the use of black or unaccounted money in political contributions. 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 1% votes in the last general elections., Hon’ble the Chief Justice has rejected the Union of India's submissions by applying the doctrine of proportionality. This is a principle 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. The last stage is to strike an appropriate balance between the fundamental right and the pursued public purpose., 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 modified in K.S. Puttaswamy (Retired) and Anr. (Aadhaar) v. Union of India and Anr., where the Supreme Court of India adopted a more tempered approach. The Court, inter alia, imposed a stricter test for the third and fourth prongs, namely necessity and balancing stages of the test of proportionality, as reproduced below., Bilchitz proposes the following inquiry. First, a range of possible alternatives to the measure employed by the Government must be identified. Secondly, the effectiveness of these measures must be determined individually; the test is not whether each respective measure realises the governmental objective to the same extent, but whether it realises it in a real and substantial manner. Thirdly, the impact of the respective measures on the right at stake must be determined. Finally, an overall judgment must be made as to whether, in light of the findings of the previous steps, there exists an alternative which is preferable; this judgment will go beyond the strict means‑ends assessment and will also require a form of balancing to be carried out at the necessity stage., The Court, in its earlier judgments, applied the German approach while applying the proportionality test to the case at hand. We would like to proceed on that basis, tempered with a more nuanced approach as suggested by Bilchitz. This is in fact an amalgam of German and Canadian approaches. The stages, as mentioned in Modern Dental College & Research Centre and recapitulated above, would be the safe method in undertaking this exercise, with focus on the parameters as suggested by Bilchitz, as this projects an ideal approach that needs to be adopted., 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 judgment references works of scholars who have argued that if the necessity prong of the proportionality test is applied strictly, legislations and policies, no matter how well intended, would fail the proportionality test even if any other slightly less drastic measure exists. The Court accepted the suggestion in favour of a moderate interpretation of the necessity test. Necessity involves a process of reasoning designed to ensure that only measures with a strong relationship to the objective they seek to achieve can justify an invasion of fundamental rights. The process thus requires a court to reason through the various stages of moderate interpretation of necessity in the following manner: (MN1) All feasible alternatives need to be identified, with courts being explicit as to criteria of feasibility; (MN2) The relationship between the government measure under consideration, the alternatives identified in MN1 and the objective sought to be achieved must be determined, retaining only those alternatives that realise the objective in a real and substantial manner; (MN3) The differing impact of the measure and the alternatives upon fundamental rights must be determined, recognising an approximate impact; and (MN4) Given the findings in MN2 and MN3, 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., 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 not only should be sanctioned by law, but 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 they 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 the necessity of the measure, the courts consider whether a less intrusive alternative is available to achieve the same ends, aiming for minimal impairment. As emphasized by the Supreme Court of India in Anuradha Bhasin, relying on suggestions given by some jurists, the Court emphasized the need to employ a moderate interpretation of the necessity prong. To conclude its findings on the necessity prong, the Court is required to undertake an overall comparison between the measure and its feasible alternatives., 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. This stems 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. This ensures that all aspects of a case are carefully weighed in decision‑making. This perspective finds support in the work of jurists who believe that constitutional rights and restrictions are both principles, and thus they should be optimised and balanced to their fullest extent., 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 like lack of parliamentary deliberation and a 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. Nevertheless, many constitutional courts have employed the balancing stage normatively by examining the weight of the seriousness of the right infringement against the urgency of the factors that justify it. Examination under the first three stages requires the court to first examine scientific evidence, and where such evidence is inconclusive or does not exist and cannot be developed, reason and logic apply. We shall subsequently be referring to the balancing prong during our application of the test of proportionality., In Germany, the courts enjoy a high judicial discretion. The parliament and the judiciary in Germany have the same goal, that is, to realise the values of the German Constitution. Canadian courts, some believe, in practice give wider discretion to the legislature when a restriction is backed by sufficient data and evidence. The constitutional court in South Africa, as per 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. It is based on the premise that a contextual, instead of broad standard of review, is required to be adopted 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. It also leads to better and more democratic governance. While one cannot jump from is to ought, to reach an ought conclusion, one has to rely on accurate knowledge of is, for is and ought to be united. While we emphasise the need of addressing the quantitative/empirical deficit for a contextual and holistic balancing analysis, the pitfalls of selective data sharing must be kept in mind. After all, if a measure becomes a target, it ceases to be a good measure., To avoid this judgment from becoming complex, I have enclosed as an annexure a chart 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. I would like to specifically quote from the transcript of hearing dated 01.11.2023, where on behalf of the Union of India it was submitted: the bottom line is this. What was really found? That what is the reason, why a person who contributes to a political party chooses the mode of unclean money as a payment mode and Your Lordships would immediately agree with me if we go by the practicalities of life. What happens is, suppose one state is going for an election. There are two parties, there are multiple parties, but by and large there are two parties which go neck to neck. Suppose I am a contractor. I am not a company or anything. I am a contractor and I am supposed to give my political contribution to Party A and Party B or Party A or Party B, as the case may be. But the fear was if I give by way of accounted money or by clean money, by way of cheque, it would be easily identifiable. If I give to Party A and Party B forms the Government, I would be facing victimisation and retribution and vice versa. If I give money to Party B and Party A continues to be in Government, then I would be facing retribution or victimisation. Therefore, the safest course was to pay by cash, so that none of the parties know what I paid to which party, and both parties are happy that I have paid something. So, that, the payment by cash ensured confidentiality. Parties would say that one party would be given 100 crores, one party would be given 40 crores, depending upon my assessment of their winnability. But both would not know who is paid what. My Lord, sometimes what used to happen is in my business, I get only clean money or substantial part of the clean money, but practicalities require that I contribute to the political parties, and practicality again requires that I contribute with a degree of confidentiality so that I am not victimized in the future. And therefore clean money used to be converted into unclean money. White money is being converted into black money so that it can be paid, according to them anonymously, and according to me with confidentiality. And this is disastrous for the economy when white money is converted into black money., While introducing the Finance Act of 2017, the then Finance Minister had elucidated that the main purpose of the Scheme was to curb the flow of black money in electoral finance. It is stated that this could be achieved only if information about political donations and the donor were kept confidential. It was believed that this would incentivise donations to political parties through banking channels., 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 even if we have to ignore the balancing stage., Retribution, victimisation or retaliation against any donor exercising their choice to donate to a political party is an abuse of law and power. This has to be checked and corrected. As it is a wrong, 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 deal with the malady and 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 and counters cases of retribution, victimisation and retaliation. Transparency and 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 at all 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 donation has been made to a political party has to be specified and is not left hidden and concealed. What is not revealed is the quantum of the contribution and the political party to whom the contribution is made. Further, when a donor goes to purchase a Bond, he has to provide full particulars and fulfil the Know Your Customer norms of the bank. His identity is then asymmetrically known to the person and the officers of the bank from where the Bond is purchased. 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 in the said 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 it is the stand that the identities of the contributors/donors 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 Supreme Court of India. Thus, the fear of reprisal and vindictiveness does not evaporate. The so‑called protection exists only on paper but in practical terms is not a good safeguard even if we accept that the purpose is legitimate. It fails the rational nexus prong., The fear of the identities of donors being revealed exists in another manner. Under the Scheme, political parties in power may have asymmetric access to information with the authorised bank. They also retain the ability to use their power and authority of investigation 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 getting legitimised., The Reserve Bank of India had objected to the Scheme since 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, whose identity is thereupon completely concealed, may not be the actual contributor or donor. In fact, the Scheme may enable the actual contributor or donor to not leave any 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 7(3) of the United Nations Convention against Corruption, 2003 mandates the state parties to enhance transparency in political funding of the candidates and parties. The convention is signed and ratified by India. By ensuring anonymity, the policy ensures that the money laundered on account of quid pro quo or illegal connection escapes the eyes of the public., 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 the pressure groups put forward their perspective with evidence and data, there should not be any 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 Rs 2,000. However, political parties do not have to record the details and particulars of donations received for amounts less than Rs 20,000. Therefore, the reduction of the upper limit of cash donations from Rs 20,000 to Rs 2,000 serves no purpose. It is open to the political parties to bifurcate the law and camouflage larger donations in smaller stacks. There is no way or method to verify the donor if the amount shown in the books of the political party is less than Rs 2,000., 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.
id_1393	11	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 amounts which were 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. Similarly, contributions are made by the trust to multiple political parties. The disclosure requirements provided in 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. Early campaign finance laws in the United Kingdom permitted trusts to donate to political parties but were later disallowed as 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 this 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, 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). The measure 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 in a real and substantial manner 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., I would now come to the fourth prong. I would begin by first referring to the judgment cited by Hon’ble the Chief Justice in the case of Campbell v. MGM Limited. This judgment adopts a double proportionality standard to adequately balance two conflicting fundamental rights. Double proportionality has been distinguished from the single proportionality standard in paragraph 152 of the judgment authored by Hon’ble the Chief Justice. Campbell (supra) states that the single proportionality test and the principle of reasonableness are applied to determine whether a private right claim offers sufficient justification for the interference with the fundamental rights. However, Supreme Court of India may not apply this test when two fundamental rights are in conflict and one has to balance the application of one right and restriction of the other., 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, Supreme Court of India should consider the justification for interfering with or restricting each of the 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, distilled four principles to resolve the question of conflict of rights as follows: First, neither article has as such precedence over the other. Secondly, 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. Thirdly, 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, stating that 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. Secondly, Article 14, as observed by Hon’ble the 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 negates the voters' right in an electoral process as neither the right of privacy nor the purpose of incentivising donations to political parties through banking channels justify the infringement of the right to voters. The voters' right to know and access to information is far too important in a democratic set‑up to curtail essential information on the pretext of privacy and the desire to check the flow of unaccounted money to the political parties. While secret ballots are integral to fostering 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 the 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, J., 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. 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. We have already commented on pressure groups that exert such persuasion within the boundaries of law. However, when money is exchanged as quid pro quo then the line between persuasion and corruption gets 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 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 and desires of those who make large contributions. This kind of corruption is described as clientelism. It can arise from the 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 as well as 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), 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 the State 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 has commented on the concern of quid pro quo arrangements and its dangers to a fair and effective government. Improper influence erodes and harms confidence in the system of representative government. Conversely, disclosure provides the electorate with information as to where the political campaign money comes from and how it is spent. This helps the voter in evaluating those contesting elections, allows the voter to identify interests which candidates are most likely to be responsive to, thereby facilitating prediction of future performance in office. It also checks actual corruption and helps avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity. Relying upon Grosjean v. American Press Co., it holds that informed public opinion is the most potent of all restraints upon misgovernment. Thirdly, 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, the Supreme Court of the United States observes that large contributions given to secure a political quid pro quo undermines 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 in the form of corruption or quid pro quo arrangements, but also extending to the broader threat of the beneficiary being 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 highlighted the importance of purity of the electoral process in the following words: \Without attaining power, men organised as political parties cannot achieve their goals. Power becomes, therefore, 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 the fundamental rights as also the mandate of all the laws. What is contemplated is a lawful Government... The pollution of the stream or the sullying of the electoral process which precedes the gaining of power... The means to gain power in a democracy must remain wholly pure and abide by the Constitution and the laws.\, The essential hallmark of a genuine democracy is the transformation of the ruled into a citizenry clothed with rights which in the case of the Indian Constitution also consist of fundamental rights, which are also being freely exercised and the concomitant and radical change of the ruler from an Emperor to a public servant. With the accumulation of wealth and emergence of near monopolies or duopolies and the rise of certain sections in the media, the propensity for the electoral process to be affected with the vice of wholly unfair means being overlooked by those who are the guardians of the rights of the citizenry as declared by this Court would spell disastrous consequences., The Law Commission of India in its 255th Report noted the concern of financial superiority translating into electoral advantage. It was 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 of India 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 would like to refer to the data as available on the website of the Election Commission of India and the data submitted by the petitioners for a limited purpose and objective 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 Supreme Court of India 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 Bonds as reproduced below: (table omitted). It is clear from the available data that the majority of contribution through Bonds has gone to political parties which are ruling parties in the Centre and the States. There has also been a substantial increase in contribution/donation through Bonds., Petitioner No. 1 Association for Democratic Reforms has submitted a table which showcases party‑wise donation by corporate houses to national parties. The data shows that the party‑wise donation by the corporate houses has been more or less stagnant from the years 2016‑17 to 2021‑22. We do not have the comments or official details in this regard 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 on these figures. However, we have data of denomination/sale of Bonds, as submitted by the petitioners, during the 27 phases from March 2018 to July 2023, which is as under: (table omitted). Analysis of this data shows that more than 50 % of the Bonds in number, and 94 % of the Bonds in value terms were for Rs 1 crore. This supports our reasoning and conclusion on the application of the doctrine of proportionality. This is indicative of the quantum of corporate funding through the anonymous Bonds., The share of income from unknown sources for national parties rose from 66 % during the years 2014‑15 to 2016‑17 to 72 % during the years 2018‑19 to 2021‑22. Between the years 2019‑20 to 2021‑22 the Bond income has been 81 % of the total unknown income of national parties. The total unknown income, that is donations made under Rs 20,000, sale of coupons etc., has not shown ebbing and has substantially increased from Rs 2,550 crores during the years 2014‑15 to 2016‑17 to Rs 8,489 crores during the years 2018‑19 to 2021‑22. To this we can add total income of the national political parties without other known sources, which has increased from Rs 3,864 crores during the years 2014‑15 to 2016‑17 to Rs 11,829 crores during the years 2018‑19 to 2021‑22. The Bonds income between the years 2018‑19 to 2021‑22 constitutes 58 % of the total income of the national political parties., Based on the analysis of the data currently available to us, along with our previous observation asserting that voters' right to know supersedes anonymity in political party funding, I arrive at the conclusion that the Scheme fails to meet the balancing prong of the proportionality test. However, I would like to reiterate that 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 Hon’ble 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 would rather apply the principle of proportionality which, in my opinion, would subsume the test of manifest arbitrariness. In addition, the claim of privacy by a corporate or a company, especially a public limited company, would be on very limited grounds, restricted possibly to protect the privacy of the individuals and persons responsible for conducting the business and commerce of the company. It will be rather difficult for a public (or even a private) limited company to claim a violation of privacy as its affairs have to be open to the shareholders and the public who are interacting with the body corporate/company. This principle would equally, with some deference, apply to private limited companies, partnerships and sole proprietorships., 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), are held to be unconstitutional. Similarly, Section 31(3) of the RBI Act 1934, along with the Explanation enacted by the Finance Act 2017, has to be struck down as unconstitutional, as it permits issuance of Bonds payable to a bearer on demand by such person., The petitioners have not argued that corporate donations should be prohibited. However, it was argued by some of the petitioners that coercive threats are used to extract money from businesses as contributions virtually as protection money. Major opposition parties, which may come to power, are given smaller amounts to keep them happy. It was also submitted that there should be a cap on the quantum of donations and the law should stipulate funds to be utilised for political purposes given that the income of the political parties is exempt from income tax. Lastly, suggestions were made that corporate funds should be accumulated and the corpus equitably distributed amongst national and regional parties. I have not in‑depth examined these aspects to make a pronouncement. However, the issues raised do require examination and study., By an interim order dated 26.03.2021, Supreme Court of India in the context of contributions made by companies through Bonds had prima facie observed that the voter would be able to secure information about the funding by matching the information of 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, Hon’ble the Chief Justice, rightly observes in his judgment that this exercise would not reveal the particulars of donations, including the name of the donor., By the order dated 02.11.2023, Supreme Court of India had asked for the Election Commission of India's compliance with the interim order of Supreme Court of India dated 12.04.2019. 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 intent of the order dated 12.04.2019 is that the Election Commission of India will continue to maintain full particulars of the donors against each Bond; the amount of each such Bond and the full particulars of the credit received against each Bond, that is, the particulars of the bank account to which the amount has been credited and the date of each such credit., In view of the findings recorded above, I would 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. I would restrict this direction to any donations made on or after the interim order dated 12.04.2019. The donors/purchasers being unknown and not parties, albeit the principle of lis pendens applies, and it is too obvious that the donors/purchasers would be aware of the present litigation. Hence, they cannot claim surprise., I, therefore, respectfully agree and also conclude that: (i) the Scheme is unconstitutional and is accordingly 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) to the Companies Act of 2013, thereby permitting unlimited contributions to political parties is unconstitutional, and is struck down; (iv) sub‑section (3) to Section 31 of the RBI 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 thereupon disclose the details and names of the donor/purchaser of the Bonds and the amounts donated to the political party. The said exercise would be completed as per the timelines fixed by Hon’ble the Chief Justice; (vi) Henceforth, as the Scheme has been declared unconstitutional, the issuance of fresh Bonds is prohibited; (vii) In case the Bonds issued (within the validity period) are with the donor/purchaser, the donor/purchaser may return them to the authorised bank for refund of the amount. In case the Bonds (within the validity period) are with the donee/political party, the donee/political 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/policies are required to be balanced and realised to the optimum possible extent.
id_1393	12	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 is applied. After having ascertained the legitimate purpose of the law, the judge asks whether the imposed restriction is a suitable means of furthering this purpose (rational connection). Additionally in this model, 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). 139 Francisco J. Urbina, A Critique of Proportionality, American Journal of Jurisprudence, Vol 57, 2012. Also see Ronald Dworkin, Taking Rights Seriously (Bloomsbury 2013), pp 41‑42. 140 Robert Alexy, A Theory of Constitutional Rights (translated by Julian Rivers, first published 2002, Oxford University Press 2010), pp 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. In the table provided below, 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 like 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/policies) are both principles and principles are optimisation requirements. Germany Balancing was adopted by the German Constitutional Court in the 1950s as a new methodology for intensive judicial review of rights‑restricting legislation. It stems from the belief that the German main premise of the criticisms of balancing is the wide discretion available to judges. To capture three contemporary criticisms in brief: (i) it leads to a comparison of incommensurable values; (ii) it fails to create predictability in the legal system and is potentially dangerous for human rights; (iii) conversely, 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 (objective of legislation/policy) by reducing them to numbers. It is a method of thinking about conflicting values/interests. 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 case of collision of constitutional rights (W1 and W2) they cancel each other out. R1 and R2 stand for reliability of empirical and normative assumptions with regard to the question of how intensive the interpretation is. The weight formula is thereafter reduced to numbers on an exponential scale of 2. (i) The scale assigns the following values to intensity of interference (I) and abstract weights (W) – light (l), moderate (m), and serious (s) – in numbers these are 1, 2, and 4 respectively. (ii) To reliability (R), i.e., the epistemic side, the values assigned are reliable (r), plausible (p) and not evidently false (e) – in numbers these are 1, 0.5 and 0.25., Three‑stage Proportionality this model proposes limiting the proportionality enquiry to its first three prongs, i.e., minus the balancing stage. Von Bernstorff argues against ad hoc balancing based on two principal reasons: (i) ad hoc balancing fails to erect stable and predictable standards of human rights protection, allowing even the most intensive infringements of civil liberties to be conveniently balanced out of existence when the stakes are high enough; and (ii) 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 Canadian Supreme Court decide that a measure survives the first three prongs but nevertheless fails at the final balancing stage. Despite this, past jurisprudence in Canada does affirm the (i) in absence of the balancing stage, the courts must be mindful of certain analytical weaknesses of the necessity stage that can be dealt with at the balancing stage; (ii) 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. But often, considerations of balancing may become disguised in the necessity prong, as the court must, however well‑intentioned, in the judicial balancing exercise and thus ad hoc balancing is potentially overly intrusive from a separation of powers perspective. He, however, defends the use of judicially established bright‑line rules for specific cases where intensive interferences are at stake. The bright‑line rule brings clarity to a law or regulation that could be interpreted in multiple ways. Bright‑line rules constitute the core, substance or essence of a particular right, making human rights categorical instead of open‑ended in nature., Some jurists and courts have suggested a strict interpretation of necessity, where an alternate measure is only accepted as less restrictive when it proves to be as effective as the measure under challenge. David Bilchitz has also proposed that other alternatives must have both characteristics: equal realisation of the purpose and lesser invasion/restriction on the right in question. Jochen von Bernstroff, Proportionality Without Balancing: Why Judicial Ad Hoc Balancing is Unnecessary and Potentially Detrimental to Realisation of Collective and Individual Self‑Determination, Reasoning Rights Comparative Judicial Engagement (edited by Liaora Lazarus); also see Bernhard Schlink, Abw gung im Verfassungsrecht, Duncker & Humblot, 1976, pp 192‑219. Ibid. Also see Canada (Attorney General) v. JTI‑Macdonald Corp., [2007] 2 S.C.R. 610, at paragraph 46; Alberta v. Hutterian Brethren of Wilson Colony, and [2009] 2 S.C.R. 567, at paragraphs 72‑78., A stricter evaluation of evidence becomes crucial at the necessity stage for an objective standard of review, in contrast to ad hoc balancing. In Canada, for instance, the onus of proof is on the person seeking to justify the limit, which is 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 and David Bilchitz’s approach was followed in the Aadhar (5J) (Privacy) case. This test was referenced in Anuradha Bhasin, which applied a moderate interpretation of the necessity test. To conclude the findings of the necessity stage, Supreme Court of India in Anuradha Bhasin suggests that an overall comparison be undertaken between the measure and its feasible alternatives., Means‑ends Test the doctrine is similar to a reasonableness inquiry, albeit with some variation. In Australia, for instance, 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. The test is simplistic and gives limited judicial flexibility. It does not account for diverse factual scenarios., Calibrated Scrutiny (evolved means‑ends test) the essential elements of the approach are as follows: 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 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; and finally the judge applies the appropriate level of scrutiny so as 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. These judges raise concerns about the application of a test of structured proportionality and suggest that it was best understood as a tool of analysis, or a means of setting out steps to a conclusion, not a constitutional doctrine, substituting a contextually guided judicial approach., Strict Scrutiny Test this is considered one of the heightened forms of judicial review that can be used to evaluate the constitutionality of laws, regulations, or other 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. For instance, it is employed in cases of 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 courts in the United States use a tiered approach of review with strict scrutiny, intermediate scrutiny and rational basis, existing in decreasing degree of intensity. Only a limited number of laws survive under the strict scrutiny test. Its application is reserved for instances where the most intensely protected fundamental rights are affected. See Jennifer L. Greenblatt, Putting the Government to the (Heightened, Intermediate, or Strict) Scrutiny Test: Disparate Application Shows Not All Rights and Powers Are Created Equal (2009) 10 Fla. Coastal L. Rev. 421. The usual presumption of constitutionality is removed, and the law must also pass the threshold of both necessity/end and means., Unreasonableness / Wednesbury Principles a standard of unreasonableness is used for the judicial review of a public authority's decision. A reasoning or decision is unreasonable (or irrational) when no person acting reasonably could have arrived at it. This test has two limbs: (i) the court is entitled to investigate the action to check whether the authority has considered and decided on matters which they ought not to have considered, or have refused to consider or neglected to consider matters which they ought to have considered; (ii) if the above query is answered in favour of the local authority, it may be held that, although the local authority has ruled on matters which they ought to have considered, the conclusion they have arrived at is nonetheless so unreasonable that no reasonable authority could ever have arrived at it., Please note that: (i) the above table briefly summarises the different standards of constitutional review and it does not elaborate on the said tests in detail; (ii) the theories propounded by the jurists are not followed in toto across the jurisdictions and this has been pointed out appropriately; and (iii) the table does not provide an exhaustive account of the full range of standards of review employed internationally and is restricted to the tests identified therein.
id_1394	0	Revisionist: Committee of Management, Anjuman Intezamia Masajid, Varanasi. Opposite Party: Smt. Rakhi Singh and others. Counsel for Revisionist: Syed Ahmed Faizan, Senior Advocate, and Zaheer Asghar. Counsel for Opposite Party: Prabhash Pandey, Arya Suman Pandey, Saurabh Tiwari, Vishnu Shankar Jain, Vineet Sankalp. This is a defendant's Civil Revision under Section 115 of the Code of Civil Procedure, 1908, arising out of an order of Dr. Ajaya Krishna Vishvesha, the District Judge of Varanasi, rejecting an application by the defendant‑revisionist under Order VII Rule 11 of the Code of Civil Procedure in Original Suit No. 18 of 2022., The five plaintiff‑respondents to this revision have instituted Original Suit No. 18 of 2022 against the State of Uttar Pradesh, represented by the Chief Secretary, the District Magistrate, Varanasi, the Commissioner of Police, Varanasi, the Committee of Management, Anjuman Intezamia Masajid, Varanasi through its Secretary, representing the Gyanvapi Mosque, and the Board of Trustees, Sri Kashi Vishwanath Temple through the Chief Executive Officer/Secretary of the Board, seeking reliefs of declaration, permanent prohibitory injunction and mandatory injunction. The reliefs claimed are as follows: (a) Decree the suit for declaration declaring that Plaintiffs are entitled to have Darshan, Pooja and perform all the rituals of Maa Sringar Gauri, Lord Ganesha, Lord Hanuman and other visible and invisible deities within the old temple complex situated at settlement Plot No. 9130 in the area of Ward and Police Station Dashwamedh, District Varanasi; (b) Decree the suit for permanent injunction restraining the Defendants from imposing any restriction, creating any obstacle, hindrance or interference in performance of daily Darshan, Pooja, Aarti, Bhog and observance of rituals by devotees of Goddess Maa Sringar Gauri at the Asthan of Lord Adi Visheshwar along with Lord Ganesha, Lord Hanuman, Nandiji and other visible and invisible deities within the old temple complex situated at settlement Plot No. 9130 in the area of Ward and Police Station Dashwamedh, District Varanasi; (c) Decree the suit for permanent injunction restraining the Defendants from demolishing, damaging, destroying or causing any damage to the images of deities Goddess Maa Sringar Gauri at the Asthan of Lord Adi Visheshwar along with Lord Ganesha, Lord Hanuman, Nandiji and other visible and invisible deities within the old temple complex situated at settlement Plot No. 9130 in the area of Ward and Police Station Dashwamedh, District Varanasi; (d) Decree the suit for mandatory injunction directing the Government of Uttar Pradesh and District Administration to make every security arrangement and facilitate daily Darshan, Pooja, Aarti, Bhog by devotees of Maa Sringar Gauri along with Lord Ganesha, Lord Hanuman, Nandiji and other images and deities within the precincts of the temple complex known as ‘Ancient temple’ existing at settlement Plot No. 9130 within the area of Ward and Police Station Dashwamedh, the heart of the city of Varanasi; (e) Grant such other relief for which the Plaintiffs may be found entitled or which may be deemed fit and necessary in the interest of justice; and (f) Decree the suit with costs in favour of Plaintiffs and against the Defendants., The application under Order VII Rule 11 of the Code of Civil Procedure was made on behalf of the revisionist‑defendant, the Committee of Management, Anjuman Intezamia Masajid, Varanasi, stating that the plaint ought to be rejected without a trial because the suit is barred by the Places of Worship (Special Provisions) Act, 1991., The revisionist argues that the plaintiffs have claimed a relief to the effect that their right to perform pooja of the deities on Settlement Plot No. 9130 be declared and that the defendants be restrained from interfering in the exercise of that right, including demolition or destruction of images of those deities. The objection relies on the Act of 1991, contending that Plot No. 9130 has housed the Gyanvapi Mosque for the past six hundred years, where Muslims offer namaz five times a day and on the two Eids and Fridays without any hindrance., The revisionist's case is that under the Act of 1991 the religious character of a place of worship as existing on 15 August 1947 shall continue unchanged. Accordingly, the statutory bar pleaded is that the relief claimed would alter the character of the Gyanvapi Mosque. This objection is supported by Paragraph 12 of the plaint, which allegedly relates the facts to the Gyanvapi Mosque and the plaintiffs' desire to perform pooja and archana there, which would violate the Act of 1991., The objection also points to Paragraph 29 of the plaint, which states that the building complex is under the control of the Committee of Management, Anjuman Intezamia Masajid, Varanasi, indicating that the relief sought concerns the Gyanvapi Mosque and is a matter of clever drafting., The other objection is that the suit is barred by the Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983. Paragraph 4 of the application asserts that the Government of Uttar Pradesh enacted the 1983 Act, entrusting control of the entire Kashi Vishwanath premises and its upkeep to the Board of Trustees, which is responsible for the care of all gods and goddesses and the management of their affairs., The next statute invoked is the Waqf Act, 1995. Paragraphs 6 and 7 of the application state that the Gyanvapi Mosque, described in Paragraph 12 of the plaint, is waqf property recorded as Waqf No. 100, Banaras with the Uttar Pradesh Sunni Central Board of Waqf, Lucknow. The objection contends that because the plaintiffs claim a right in waqf property, the civil court's jurisdiction is barred under Section 85 of the 1995 Act. On the basis of these three statutes, the revisionist urged that the suit is barred under Order VII Rule 11(d) of the Code of Civil Procedure, 1908., In their reply filed to the application under Order VII Rule 11, the plaintiffs say that the application is not based on the averments made in the plaint and that the plea of a bar under the Act of 1991 has been raised to prolong litigation and avoid a hearing on merits. They assert that there is no mosque within Settlement Plot No. 9130, situated in the area of Ward and Police Station Dashwamedh, Varanasi, as described in the suit property., The crux of the reply, contained in Paragraphs 4 to 8, is that deities have been present in the suit property from time immemorial. The forced offering of namaz at a particular point would not alter its character into a mosque. The principle of first existence is invoked. The suit seeks to restrain the defendants from interfering in the performance of darshan, pooja of Goddess Maa Sringar Gauri, Lord Ganesha, Lord Hanuman, Nandiji and other visible and invisible deities within the old temple complex. The plaintiffs claim that these deities have been continuously present since before 15 August 1947 and that worshippers have a right to darshan and pooja under Article 25 of the Constitution. Historical detail includes reference to Civil Suit No. 62 of 1936, where witness testimony established the existence of the deities before 15 August 1947., The reply also states that the report of the Advocate Commissioner, appointed to inspect the property, will illuminate the averments in the plaint and point out the specific places within the suit property where the deities exist for worship. It emphasizes that the scope of the court's jurisdiction under Order VII Rule 11 is confined to the averments in the plaint and that the revisionist's case cannot be considered at this stage. The averments make clear that the deities have existed since before 15 August 1947, and therefore the provisions of the Act of 1991 do not bar the suit. Under Hindu law, property once vested in a deity continues to be the deity's property, and destruction of a temple cannot change the nature of the property., The reply further avers that the destruction of an idol does not terminate its pious purpose; the dedication of the property to the idol, once vested, continues, as does the idol's legal personality. Consequently, intermittent acts of destruction would not efface the existence of the deities or the suit property., The plaintiffs argue that, given the existence of the idols since time immemorial, the provisions of the Act of 1991 do not bar the suit. They cite Section 4(1) of the Act, which requires preservation of the religious character of a place of worship as it existed on 15 August 1947. Accordingly, the parties must prove by evidence at trial the religious character of the property on that date, and the plaint cannot be summarily rejected under Rule 11 of Order VII., The reply notes that under Section 2(c) of the Act of 1991, the term ‘mosque’ means a religious Islamic construction raised according to Islamic tenets, and it is not permissible under Hindu or Muslim law to raise any construction over the religious property of the other community. Paragraph 4 of the plaint states that Raja Todarmal reconstructed a magnificent Temple of Lord Shiva at the same place, Plot No. 9130, consisting of a central sanctum surrounded by eight mandaps. Paragraph 6 of the plaint alleges that Muslims, without creating any waqf or acquiring lawful ownership, forcibly raised constructions termed the Gyanvapi Mosque. Other paragraphs plead that worshippers have been worshipping the old and existing idols, as reflected in the testimony of witnesses in Civil Suit No. 62 of 1936. The plaintiffs contend that all issues should be tried and not summarily determined under Order VII Rule 11., The District Judge of Varanasi, who heard and decided the application under Order VII Rule 11, rejected it and directed the suit to be tried. The impugned order indicates that, like the Supreme Court of India, the Judge was confronted with extensive pleadings but confined his decision to the permissible parameters of Order VII Rule 11, focusing solely on the averments of the plaint and not on the defence., The Supreme Court notes that the learned District Judge, while considering the bar pleaded under the Acts of 1991, 1983 and 1995, found that the plaintiffs are not seeking a declaration of ownership or that the suit property is a temple. They are seeking a right to worship Maa Sringar Gauri, Lord Ganesha, Lord Hanuman and other deities, which they had historically worshipped at the backside of the Gyanvapi Mosque on the north‑east corner. The Judge held that the right to worship is both a fundamental right and a civil right enforceable by suit, and that the suit does not aim to alter the character of the property., The Judge further held that, under Section 9 of the Code of Civil Procedure, the civil court has jurisdiction to decide disputes involving the right to worship, and therefore the Places of Worship (Special Provisions) Act, 1991 does not operate as a bar on the suit., The next statute invoked by the revisionist was Section 85 of the Waqf Act, 1995, which bars civil court jurisdiction over matters that must be determined by a tribunal under the Act. The Judge examined the definition of waqf and the concept of a person interested in a waqf under Section 3(k) of the Act, and concluded that only matters required to be decided by the tribunal are excluded from civil court jurisdiction. The relief sought—right to worship—does not fall within the enumerated sections of the Act, and therefore the civil court's jurisdiction remains unfettered., The final statute considered was the Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983. The Judge examined Sections 4(5), 4(9), 5 and 6 of that Act and held that the suit is not barred by it. Consequently, none of the three statutes bar the trial of the suit, and the plaint cannot be rejected under Order VII Rule 11 of the Code., The hearing before this Court involved senior counsel for the revisionist, including Mr. S.F.A. Naqvi, Senior Advocate, assisted by Mr. Syed Ahmad Faizan, Ms. Fatma Anjum, Mr. Zaheer Asghar and Mr. Mahmood Alam, and counsel for the plaintiff‑respondents, including Mr. Hari Shankar Jain, Mr. Vishnu Shankar Jain, Ms. Mani Munjal, Mr. Parth Yadav (via video conferencing), Mr. Prabhash Pandey, Mr. Pradeep Sharma, Mr. Saurabh Tiwari, Mr. Arya Suman Pandey, Mr. M.C. Chaturvedi, Additional Advocate General Mr. Bipin Bihari Pandey, Chief Standing Counsel‑V Mr. Rananjay Singh, Additional Chief Standing Counsel Mr. Shrawan Kumar Dubey, Mr. Girijesh Kumar Tripathi and Mr. Hare Ram Tripathi, as well as counsel for the defendant‑respondents and the Board of Trustees., Mr. S.F.A. Naqvi, Senior Advocate, submitted that the suit is barred by Section 9 of the Code of Civil Procedure because the provisions of the Places of Worship (Special Provisions) Act, 1991 expressly bar a suit that would alter the character of a religious place of worship as it existed on 15 August 1947. He argued that the present suit attempts to change the character of the existing mosque into a Hindu temple and that the learned trial judge was duty‑bound to examine maintainability under Sections 3, 4 and 7 of the 1991 Act. He relied on Rule 11(d) of Order VII of the Code, which permits a defendant to assail the maintainability of a suit at the threshold, and cited the Supreme Court decision in Sopan Sukhdeo Sable and others v. Assistant Charity Commissioner., The senior advocate emphasized that evidence, however overwhelming, cannot be considered in an application under Order VII Rule 11, and that the power under Rule 11(d) allows the court to summarily terminate an action that is barred by law, including statutory and customary law. He referred to the Supreme Court decision in Mohd. Aslam alias Bhure v. Union of India, noting assurances by the Central and State Governments to safeguard all religious places, including the Gyanvapi Mosque. He also highlighted that the waqf property of the Gyanvapi Mosque is separate from the property of the Sri Kashi Vishwanath Temple Trust, as established by deed of exchange Paper No. 224C between the Uttar Pradesh Sunni Central Board of Waqf and the State of Uttar Pradesh., The exchange of land between the Uttar Pradesh Sunni Central Board of Waqf and the State of Uttar Pradesh, represented by the Collector, and later between the State of Uttar Pradesh, represented by the Chief Executive Officer of the Board of Trustees of Sri Kashi Vishwanath Temple and the Committee of Management, Anjuman Intezamia Masajid, Varanasi, in the year 2021, is documented in Paper Nos. (details omitted).
id_1394	1	It is pointed out that the dealing in the land and its disposition by the Government of Uttar Pradesh as well as the Board of Trustees of Sri Kashi Vishwanath Temple show that both of them consider the suit property as waqf property. For that reason the land was taken on a licence by the Government from the Waqf Board in the year 1993-94, and later dealt with through a deed of exchange in the year 2021., The learned Senior Advocate appearing for the revisionist has urged that the present suit and its ancillary proceedings are pending in three different courts: the learned District Judge who has seisin of the suit, the High Court of Uttar Pradesh which has, before it, matters under Article 227 Nos. 3341 of 2017, 1521 of 2020, 3562 of 2021 and 3844 of 2021 including this revision, and the Supreme Court of India. The matter before the Supreme Court is Petition for Special Leave to Appeal (C) No. 9388 of 2022 arising out of an earlier order passed in the suit and approved by the High Court of Uttar Pradesh. The learned Senior Advocate submits that this multiplicity wastes precious judicial time and ought not to be permitted., Mr. Naqvi, during the course of his submissions, repeatedly argued that the suit cannot proceed in view of the provisions of the Uttar Pradesh Waqf Act, 1991, its objects and prohibitions. He submits that the object of the suit is ultimately to alter the religious character of Gyanvapi Mosque into a temple, which is prohibited by the Uttar Pradesh Waqf Act, 1991. He further contended that the suit does not disclose a cause of action and is a product of clever drafting, an expression that has been repeated throughout the long hearing of this revision., The learned Senior Advocate for the revisionist, relying on the Supreme Court decision in Abdul Gafur and another v. State of Uttarakhand and others, emphasized that Clause (d) of Rule 11 of Order VII of the Code of Civil Procedure includes not only statutes but also judicial precedents. He also placed reliance on the Supreme Court decisions in Bhargavi Constructions and another v. Kothakapu Muthyam Reddy and others, and in Sree Surya Developers and Promoters v. N. Sailesh Prasad and others. To buttress his contention that the present suit is a product of clever drafting portraying a non‑existent cause of action as real, he further referred to T. Arivandandam v. T. V. Satyapal & another and Madanuri Sri Rama Chandra Murthy v. Syed Jalal., Mr. Hari Shankar Jain, Mr. Vishnu Shankar Jain, Ms. Mani Munjal and Mr. Parth Yadav, along with Mr. Prabhash Pandey and Mr. Pradeep Sharma, appearing on behalf of plaintiffs Nos. 2 to 5 and respondents to this revision, submitted that the suit is not barred by the Uttar Pradesh Waqf Act, 1991. They argued that the so‑called mosque in Plot No. 9130 has existed for the last six hundred years where Muslims offer namaz, but there is no mosque in Settlement Plot No. 9130 Dashashwamedh, Varanasi, which has been described as the ‘property in question’ in the suit. The High Court of Uttar Pradesh has referred to it as the suit property and it shall be called that. According to Mr. Vishnu Shankar Jain, the suit property vests in the Deity from time immemorial; any person who forcibly offers namaz without authority of law cannot be said to have created a mosque. He invoked the principle of first in existence as the paramount consideration in determining the right of worship where both Muslims and Hindus claim the right., Learned counsel for plaintiffs Nos. 2 to 5 emphasized that the suit has been filed to restrain the defendants from interfering with the plaintiffs’ right to darshan and pooja of Goddess Maa Sringar Gauri, Lord Ganesha, Lord Hanuman, Nandiji, mandaps and shrines existing within the old temple complex, i.e., the suit property. The plaintiffs contend that the deities have been continuously in existence within the suit property since before 15 August 1947 and that the worshippers have the right to darshan and pooja of the deities, protected by Article 25 of the Constitution of India., The plaintiffs’ submissions may be summarised as follows: (i) The plaintiffs are devotees of Lord Shiva and have the right to worship Goddess Maa Sringar Gauri at the asthan of Lord Adi Vishweshwar along with Lord Ganesha, Lord Hanuman, Nandiji and other visible and invisible deities within the old temple complex situated in Settlement Plot No. 9130, Varanasi. (ii) Paragraph 1 of the plaint states that the plaintiffs are filing the suit to protect their right to religion guaranteed by Article 25 of the Constitution. (iii) Paragraph 2 states that the plaintiffs are idol worshippers and devotees of Lord Shiva who visit the place of Lord Adi Vishweshwar Jyotirlinga at Kashi. (iv) Paragraph 35 states that the plaintiffs are filing the suit because the State Government cannot reduce the daily pooja to one day a year by an oral order. (v) Paragraph 36 states that the plaintiffs performed pooja of Maa Sringar Gauri on 16‑04‑2021, but thereafter devotees are not being allowed to perform the daily pooja. (vi) Paragraph 42 states that the plaintiffs occasionally worship Lord Shiva, Maa Sringar Gauri and Lord Hanuman within the old temple, performing pooja and darshan from outside throughout the year and inside whenever allowed. (vii) Paragraph 46 states that the plaintiffs and devotees of Lord Shiva have a fundamental right to uninterrupted daily darshan, pooja, aarti and bhog. (viii) Paragraph 50 states that the cause of action arose on 17‑04‑2021 because the District Administration is not allowing the plaintiffs and other devotees to perform pooja. (ix) The right to worship, apart from being a fundamental right, is a civil right within the meaning of Section 9 of the Code of Civil Procedure; a violation of that right entitles the aggrieved person to maintain a suit before the civil court for its enforcement. In support of this contention, Mr. Jain relied on the Supreme Court decision in Most Rev. P. M. A. Metropolitan and others v. Moran Mar Marthoma and another, which held that the right to worship is a civil right and that civil courts have jurisdiction to entertain suits for violation of fundamental rights guaranteed under Articles 25 and 26 of the Constitution., Mr. Jain pointed out that the plaint averred that the plaintiffs’ right to worship enshrined under Article 25 of the Constitution is being infringed, and therefore the suit has been instituted. He drew the court’s attention to paragraphs 1, 45, 46 and 47 of the plaint in support of this claim., Mr. Jain submitted that Hindu law relating to asthan and invisible deities has been extensively dealt with by Justice B. K. Mukherjea in The Hindu Law of Religious and Charitable Trusts, by Dr. Pandurang Vaman Kane in History of Dharmaśāstra, and by Sri Gopalchandra Sarkar Sastri in A Treatise on Hindu Law. In The Hindu Law of Religious and Charitable Trusts (Tagore Law Lectures, Paragraph 4.8, pages 156‑157) it is stated that the destruction of an image does not cause extinction of the religious trust created in its favour and that rules of reconstruction or replacement of an idol are to be liberally construed. Dr. Kane, in History of Dharmaśāstra (Volume II, Part II, Chapter XIX, page 707) observes that ancient sages thought of worship of deities in the abstract rather than of idols, and in Chapter XXVI (page 896) notes that even image worshippers are conscious that God is pure consciousness, one without a second, without parts and without a physical body, and that images are merely perceptible forms for the benefit of worshippers. Gopalchandra Sarkar Sastri, in A Treatise on Hindu Law (Chapter XIV, pages 492‑493), explains that images are visible symbols representing attributes of God and that the object of worship is not the image but the invisible personified deity manifesting through the image., Mr. Jain referred to the Supreme Court decision in Ram Jankijee Deities and others v. State of Bihar and others, particularly paragraphs 11, 12, 13, 15, 18 and 19 of the report, which lay down the law on the subject. He submitted that the decision in Ram Jankijee Deities was relied upon by the Constitution Bench in M. Siddiq (deceased) through Legal Representatives (Ram Janmabhumi Temple Case) v. Mahant Suresh Das and others., It is submitted by Mr. Jain that Sri Adi Vishweshwar Temple is ancient. Paragraph 3 of the plaint states that a glorious lofty temple existed at Adi Vishweshwar Jyotirlinga near Dashashwamedh Ghat. Paragraph 4 states that in the year 1585 Raja Todar Mal, the then Governor of Jaunpur, at the instance of his guru Narayan Bhatt, reconstructed a magnificent temple of Lord Shiva at the original site, Settlement Plot No. 9130, with a central sanctum surrounded by eight mandaps. Paragraph 5 states that Aurangzeb issued a farman to demolish existing temples at Kashi and Mathura, which was carried out by his army. Paragraph 6 mentions that Settlement Plot No. 9130 together with five krosh of land had already stood vested in the deity Adi Vishweshwar centuries ago., Learned counsel for plaintiffs Nos. 2 to 5 submitted that the necessary averments regarding the matters in issue have been made in the plaint as required by Order VI Rule 2 and Order VII Rule 3 of the Code of Civil Procedure. He argued that the learned Senior Advocate for the revisionist contended that the plaint is liable to be rejected because the boundaries of the suit property have not been given and that the property does not fall within a police station and ward. Mr. Jain responded that Gata No. 1 of Sri Kashi Vishwanath Temple falls within the local limits of Police Station Dashashwamedh Ghat and that the survey number of the suit property is 9130, as given in the plaint, which is sufficient to identify the suit property. In support of his submissions, he placed reliance on the Full Bench decision of this court in Ganesh v. Sri Ram Lalaji Maharaj Birajman Mandir and others and on the Bombay High Court decision in Nari Shringar Big Bazar, Nagpur and another v. Pantaloon Retailing (India) Ltd., Mumbai and another, which held that a description sufficient to identify the suit property is adequate and that misdescription of boundaries does not affect the suit or decree., Learned counsel for plaintiffs Nos. 2 to 5 drew the court’s attention to the pleadings regarding worship of the asthan, images and deities. Paragraph 8 states that devotees have been worshipping images of Maa Sringar Gauri, Lord Hanuman, Lord Ganesha etc. present in Settlement Plot No. 9130 since time immemorial despite Muslims, without any authority of law, having raised constructions over the temple, partly demolished by Aurangzeb. Paragraph 9 averred that Hindus continue to worship the deities. Paragraph 10 averred that Hindus continued to be in possession of the cellar (tahkhana) towards the south and other parts of demolished temples and that Lord Adi Vishweshwar is still in existence in his original shape. Paragraph 11 refers to the introduction of the terms ‘old temple’ and ‘new temple’; sometime in 1780‑90 Rani Ahilyabai Holkar of Indore constructed a temple of Lord Shiva and established a Shiv lingam adjacent to the old temple, which was termed the new temple while Sri Adi Vishweshwar Temple was termed the old temple. Paragraph 12 relied upon the book of Dr. A. S. Altekar. Paragraph 37 gave a description of the deities existing within the suit property., Civil Suit No. 62 of 1936 is a suit of the old that has figured in the submissions of learned counsel for both parties. The suit was numbered as Civil Suit No. 62 of 1936 on the file of the subordinate judge of Varanasi. Mr. Vishnu Shankar Jain submitted that in that suit the Hindus were not made parties and their application for impleadment was rejected. Any order or decree passed in that suit is not binding on any member of the Hindu community and cannot be used against any Hindu, including the plaintiffs. The right of Hindu devotees to worship within the temple complex in the suit property cannot be defeated on the strength of the judgment, decree or findings rendered in that suit. The plaintiffs have pleaded about the old suit in paragraphs 18 to 21 of the plaint., It is submitted that a decree or order passed in any suit or proceeding cannot bind parties who were not arrayed, either directly or through persons, under whom they claim. In support of this contention Mr. Jain placed reliance on the Supreme Court decision in State of Bihar v. Radha Krishna Singh and others, drawing the court’s attention to paragraphs 124 and 125 of the report. He further submitted that although the decree passed in the old suit would not bind the plaintiffs, oral testimony in that suit can be relied upon under Section 13 of the Indian Evidence Act, 1872, as held in Sital Das v. Sant Ram and others. He also submitted that whatever decree has been passed in Suit No. 62 of 1936 does not derogate from the submission that it does not bind the plaintiffs, who were not parties, directly or through the predecessors‑in‑title by virtue of Section 2 of the Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983., The judgment in Civil Suit No. 62 of 1936, brought on record as Paper No. 229C, is submitted to show that no Hindu or body of Hindus were arrayed as parties to the suit; therefore the findings, whatever recorded, are not binding and cannot affect the plaintiffs. The learned civil judge, however, mentioned that the mosque in question was erected after demolishing the existing temple illegally. He observed that according to strict Muslim law the construction of the mosque was not lawful, that demolition of temples might be lawful to abolish idolatry but the law does not provide that lands occupied by such temples should be appropriated, and that it is not lawful to offer prayers on the land of another without his consent. He concluded that the construction of the mosque and offering prayers in it were not lawful, but that the king is above the law and therefore everything done by him was lawful., It is submitted by the learned counsel for plaintiffs Nos. 2 to 5 that the learned civil judge, in his judgment, did not use the word waqf in its true sense; the word was employed in reference to possession over the property either by a Hindu or a Muslim for the purpose of temple or mosque. The judge noted that the word waqf was used for both Muslim and Hindu dedications and agreed with that contention., Mr. Jain argued that it is relevant to mention that the Uttar Pradesh State Legislature passed the Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983 recognizing the right of devotees to worship within Sri Adi Vishweshwar Temple and also in the new temple constructed by Rani Ahilyabai Holkar. Section 5 of the Act declares that the temple and the endowment vest in the deity of Sri Kashi Vishwanath. Paragraphs 22 to 25 of the plaint contain averments regarding the Act. Section 4(9) defines the word ‘temple’; Section 5 discloses that ownership of the temple and its endowment shall vest in the deity of Sri Kashi Vishwanath; Section 4(5) defines ‘endowment’. The Supreme Court has upheld the validity of the Act, giving a complete history of the temple in Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi and others v. State of Uttar Pradesh and others., It is argued that there is a specific pleading on behalf of the plaintiffs that the State Government, without any authority of law and without passing any written order, directed the District Administration of Varanasi to restrict entry of the devotees of Lord Shiva within the old temple complex. The averments are made in paragraphs 42, 43, 44, 45, 48 and 49 of the plaint., The plaintiffs’ case is that there has never been a dedication of the suit property by the lawful owner to God so as to constitute a waqf. The suit property, once vested in the deity Sri Adi Vishweshwar since time immemorial, could not be made a waqf by anyone. It did not belong to any member of the Muslim community, including the reigning monarch, at any point, to permit its dedication to a waqf where a mosque could be erected. Consequently, Muslims have no right to use the suit property for religious purposes in the absence of a waqf. Mr. Vishnu Shankar Jain pointed out that the principle that property of which a waqf is made must belong to the settlor is stated in Sir D. F. Mulla’s treatise Principles of Mahomedan Law. Section 176 of the Uttar Pradesh Muslim Waqfs Act, 1936, which speaks about the competence of the person creating a waqf, states that the subject of waqf must belong to the waqif at the time of dedication and that a person who is the owner of the property, even if he believes he is only a mutawalli, is competent to make a valid waqf., In view of the above proposition of law, it is submitted that the property was vested in the deity when, under the orders of Aurangzeb, it was partly demolished or damaged, and therefore there could be no waqif competent to dedicate the property to Allah., Mr. Jain submitted that the existence of a waqf has never been traced to a waqf by user and its recognition is by virtue of a notification dated 25‑02‑1944 issued under the Uttar Pradesh Muslim Waqfs Act, 1936. The notification relates to a certain Alamgiri Mosque, erected after demolition of Sri Bindu Madhav Temple in 1673 during the regime of Aurangzeb. Settlement Plot No. 9130 does not find mention in the notification, whereas other properties are identified by settlement numbers. The submission is that the notification does not relate to the suit property, i.e., the Gyanvapi Mosque. The revisionist, during hearing before the learned District Judge, filed a copy of the notification and emphasized that it does not relate to the suit property; the reference to Alamgiri Mosque is not to be confounded with the Gyanvapi Mosque structure., The revisionist, during the course of hearing before the learned District Judge, filed an extract of Khasra of 1291 Fasli (Calendar Year 1883‑1884) relating to Plot No. 9130, numbered as Paper No. 221‑C. It is argued that the correctness of entries in any revenue record can be proved by leading evidence, but a revenue record is not proof of ownership or title., It is further submitted that the notification issued under the Uttar Pradesh Muslim Waqfs Act, 1936 is not binding on non‑Muslims. The expression ‘person interested’ occurring in Section 5(2) of the Uttar Pradesh Muslim Waqfs Act, 1936 was later employed in Section 6(1) of the Waqf Act, 1954. The Supreme Court held that the expression does not apply to persons who are non‑Muslims. In support of this contention, reliance has been placed on the Supreme Court decisions in Board of Muslim Wakfs, Rajasthan v. Radha Kishan and others and others.
id_1394	2	Ramesh Gobindram (Deceased) Through Legal Representatives v. Sugra Humayun Mirza Wakf. The submission is that in view of the law laid down in the context of what a 'person interested' under the statutes relating to waqf would mean, it is evident that it has no application to non‑Muslims., Towards the tail end of his submissions under this limb of their case, it is pointed out by Mr. Vishnu Shankar Jain that on the official website of the Waqf Assets Management System of India, the particulars of a mosque have been published showing its location in Manduadih, bearing registration number 100. It carries a description of all the cases pending against Waqf number 100, which are in relation to the suit property. A copy of the document is available on the official website. This document, after supplying a copy to the learned counsel for the revisionist, was filed before the learned District Judge during the course of arguments. A copy of the document was also placed before the Supreme Court of India, downloaded from the official website as aforesaid., It is pointed out by the learned counsel for plaintiff‑respondents numbers 2 to 5 that the publication on the official website does not carry details of the Gazette Notification, date of creation of the waqf, Khasra number and other relevant details. It is also submitted that the documents filed by the revisionist cannot be looked into in deciding this application under Order VII Rule 11 of the Code of Civil Procedure. Regarding documents filed along with paper number 219‑C., It is submitted by the learned counsel for plaintiff numbers 2 to 5 that the revisionist has filed papers numbers 221‑C, 222‑C, a copy of Khasra of 1291 Fasli (corresponding to the calendar year 1883‑84) to demonstrate that a mosque was recorded there. The learned counsel for the plaintiff‑respondents numbers 2 to 5 says that they seriously dispute the correctness of the entries made in the Khasra by the officials of the Revenue Department. It is emphasized that in Din Mohammad and others v. Secretary of State, relied upon by the revisionist, the aforesaid revenue record was discarded by the Supreme Court of India in appeal. It is further urged that the correctness of entries made in any revenue record can be proved by leading evidence. The revenue record is not proof of ownership or title., It is submitted that for a proposition of law, it is well settled that entries made in the revenue records do not create or extinguish title to land, nor do they have any presumptive value about title. Mr. Jain, in this connection, has placed reliance upon the following authorities: (a) Union of India and others v. Vasavi Cooperative Housing Society Limited and others; and (b) Prabhagiya Van Adhikari Awadh Van Prabhag v. Arun Kumar Bhardwaj (Deceased) through Legal Representatives and others., It is next submitted that the authenticity and contents of paper number 223‑C are seriously disputed by plaintiff‑respondents numbers 2 to 5. This document, it is said, is not a public document. Its genuineness and correctness are subject to proof by evidence. The entries made in this document are totally incorrect. There is no material to support the facts stated therein. The document has been prepared deliberately, bearing in mind the ongoing litigation that commenced with the filing of O.S. number 610 of 1991. The right of devotees, who are Hindus and devotees of Maa Sringar Gauri, Lord Ganesha, Lord Hanuman, Nandiji etc., cannot be defeated due to the licence granted in the year 1993 in favour of the State by the Uttar Pradesh Sunni Central Board of Waqf, carried in paper number 224‑C. The correctness of this document is seriously disputed on behalf of the plaintiffs., The map, paper number 224‑C/04, is not admissible in evidence and its correctness can be proved only by leading evidence. The plaintiffs deny the correctness of this map. Similarly, paper number 226‑Ga is not admissible in evidence and cannot be utilized to defeat the plaintiffs' right, who are Hindus and devotees of Maa Sringar Gauri, Lord Ganesha, Lord Hanuman, Nandiji etc., all of whom exist within the suit property. It is further submitted that the State Government cannot take away the plaintiffs' rights of worshipping the deities within the suit property. The exchange deed executed between the revisionist and the State Government through the Chief Executive Officer, Board of Trustees, Sri Kashi Vishwanath Temple, Varanasi, also cannot defeat or prejudice the plaintiffs' right to worship, which is the subject matter of the present suit., According to the learned counsel for the plaintiff‑respondents numbers 2 to 5, the suit property as well as the nature of the relief claimed in the suit have been specified in the plaint. The suit has been filed inter alia for the purpose of restraining the defendants from interfering in the performance of darshan and pooja of Goddess Maa Sringar Gauri, Lord Ganesha, Lord Hanuman, Nandiji, visible and invisible deities, mandaps and shrines existing within the old temple complex, i.e., the suit property., It is the plaintiff‑respondents' case that the deities are continuously in existence within the suit property since before 15 August 1947. The worshippers have a right to darshan and pooja of the deities in the suit property. They have every right to file the present suit to protect and preserve their right to practice their religion, flowing from Article 25 of the Constitution., Mr. Jain has referred to various paragraphs of the plaint, including paragraphs 3, 4, 5, 6 and 7, referring to the history of destruction of the old temple and what the plaintiff‑respondents say is an encroachment of the old temple by the Muslims, terming it as the Gyanvapi Mosque. He adds that what is important is the existence of Sri Adi Vishweshwar Jyotirlingam along with the images of Maa Sringar Gauri, Lord Hanuman, Lord Ganesha and other visible and invisible deities within the temple complex at Settlement Plot number 9130, properly known as the Sri Adi Vishweshwar Temple. These deities are being worshipped by devotees of Lord Shiva from time immemorial, despite destruction of a portion of the temple during the time of Aurangzeb, when, without any authority of law, some constructions over the land of the deities were raised. The deity, nevertheless, continues to be the de jure owner of the suit property., The image of Maa Sringar Gauri exists within the suit property at the backside of Gyanvapi in the Ishan Kon (north‑east corner). The Hindu devotees continuously perform pooja of Maa Sringar Gauri, Lord Hanuman, Lord Ganesha and other visible and invisible deities with rituals and are doing circumambulation (parikrama) of the temple of Lord Sri Adi Vishweshwar. In this connection, he has drawn the Supreme Court of India's attention to paragraph 9 of the plaint., Mr. Jain has also emphasized that the temple is in possession of a cellar (Tehkhana) towards the south and other parts of the demolished temple with its ruins. Lord Adi Vishweshwar is still in existence in its original shape in the western part of the old temple. The learned counsel for plaintiff‑respondents has drawn the Supreme Court of India's attention to paragraph 10 of the plaint., It is next submitted that in Suit number 62 of 1936, the witnesses testified to the existence of images of Goddess Maa Sringar Gauri, Lord Ganesha, Lord Hanuman and visible and invisible deities, besides the performance of daily pooja at that place. Paragraph 18 of the plaint, where those pleadings are, has been brought to the Supreme Court of India's notice., In paragraph 19 of the plaint, a reference is made to the gist of the testimony of witnesses who deposed in Suit number 62 of 1936; it is pleaded that the deities were in existence within the suit property much before 15 August 1947 and those deities are still there., Mr. Jain has emphasized that the averments in the plaint make it clear that it is the plaintiffs' case that the deities mentioned in the suit are in existence within the suit property since much before 15 August 1947, and therefore the Act of 1991 would not bar the plaintiff‑respondents' right to relief. Whether the deities are there, as alleged by the plaintiffs, is a matter to be tried and proved by evidence and cannot be summarily determined., Mr. Jain submits that the plaintiff‑respondents have instituted the present suit to enforce their right to darshan and pooja of the existing deities. He has referred to the provisions of Section 4(1) of the Act of 1991 and says that what the Act prohibits is change of the religious character of the place of worship as existing on 15 August 1947. The submission is that there is no change to the character of the suit property as existing on that date. The religious character of the suit property, as prevalent on 15 August 1947, pleaded by the parties differently, is a matter of evidence to be led on both sides. Therefore, the Act of 1991 does not bar the suit in any manner., Mr. Vishnu Shankar Jain has referred to paragraphs 22, 23, 24 and 25 of the plaint to submit that the word 'Temple' defined in Section 4(9) of the Act of 1983 includes the suit property within the definition. The religious character of the suit property has already been declared by the Uttar Pradesh State Legislature while enacting the Act of 1983. There is no question of the suit being barred by the provisions of the Act of 1983. It is emphasized that under the Act of 1983, the 'Jyotirlinga' is included within the definition of 'Temple', and that its existence beneath the structure called 'Gyanvapi Mosque' has been recognized. Section 4(2) of the Act of 1983 protects the right of worshippers to worship the deities existing within the old temple complex, part of the suit property., The right to worship is an indefeasible right. The suit has been brought to enforce the right of the plaintiff‑respondents to worship within the suit property as they were doing before and after 15 August 1947. Determining the precise nature and character of the building complex, part of the suit property where darshan and pooja were done before 15 August 1947 and thereafter by Hindus, like the plaintiffs, is necessary to decide the question of the bar that the revisionist pleads under the Act of 1991. That is a matter of evidence, which would require the suit to be tried., It is next submitted that documents filed on behalf of the revisionist along with their application dated 22 August 2022, which are photocopies of some documents, cannot be looked into. The scope of proceedings under Order VII Rule 11 of the Code of Civil Procedure does not permit the examination of any kind of documents. It is emphasized, in reiteration by Mr. Vishnu Shankar Jain, that the Hindus have been worshipping at different points of the disputed structure, part of the suit property, images of gods and goddesses. The object of the suit is limited to enforcing the plaintiffs' right to worship and pooja of the deities, visible and invisible, who were being worshipped continuously prior to 1990 or 1993 by the Hindus in general, and thereafter with certain restrictions till date. The suit is brought to remove the restrictions imposed by the State Government upon the right to worship those deities for the plaintiff‑respondents. It is urged that the suit raises triable issues and is not barred by the Act of 1991, the Act of 1995 or the Act of 1983, so as to call for a rejection of the plaint under Order VII Rule 11 of the Code., Mr. Saurabh Tiwari, learned counsel, has addressed the Supreme Court of India at length on behalf of plaintiff‑respondent number 1, supporting the order impugned. He has pointed out material pleadings carrying facts that show an ancient as well as a continuing right, entitling the plaintiffs to perform pooja‑archana of Maa Sringar Gauri and other deities on the western wall of the old Sri Adi Vishweshwar Temple., Mr. Vineet Sankalp, learned counsel appearing for defendant number 5 and respondent number 9, the Board of Trustees of Kashi Vishwanath Temple, has taken a stand that the Board has no objection to a trial of the suit., The Supreme Court of India must say at the outset that one would not expect the record of submissions so elaborate in a revision arising out of an order deciding a motion under Order VII Rule 11 of the Code. However, the Supreme Court has no option but to record a summary of what learned counsel for the parties appearing on both sides said in the unexpectedly long schedule of hearing, which spread across a total period of 17 days, albeit not full‑day hearings., Mr. S.F.A. Naqvi, learned senior advocate for the revisionist, has, in substance, urged that the order of the learned District Judge ought to be reversed and the application under Order VII Rule 11 of the Code allowed, rejecting the plaint because the suit is barred under Section 9 of the Code read with the three different statutes, namely the Act of 1991, the Act of 1983 and the Act of 1995. The revisionist therefore says that the plaint ought to be rejected under Order VII Rule 11(d) of the Code. The submission of Mr. Naqvi that the civil court has jurisdiction to try all suits of civil nature by virtue of Section 9, except those where the jurisdiction of the civil court is expressly, or by necessary implication, barred, is a proposition too well settled to brook doubt. The more pertinent question here is, if at all, whether any of the statutes relied upon by Mr. Naqvi to say that the suit is expressly or by necessary implication barred, actually bars the suit., Urging that the suit is barred by the Act of 1991, Mr. Naqvi has drawn the attention of the Supreme Court of India to Sections 3, 4 and 7 of that Act and also its Statement of Objects and Reasons. It would be apposite to notice the statement of objects and reasons, the enacting clause, besides Sections 3, 4 and 7 of the Act of 1991. These read: In view of the controversies arising from time to time with regard to conversions of places of worship, it is felt that such conversions should be prohibited. In order to foreclose any controversy in respect of any place of worship that existed on 15 August 1947 it is considered necessary to provide for the maintenance of the religious character of such place of worship as it existed on that day. As a consequence thereof, all the suits or other proceedings pending as on 11 July 1991 with respect to any such places of worship may abate and further suits or other proceedings may be barred. However, since the case relating to the place commonly called Ram Janma Bhumi‑Babri Masjid forms a class by itself, it has become necessary to exempt it entirely from the operation of this Act. Moreover, in order to maintain communal harmony and peace, matters decided by courts, tribunals or other authorities, or those settled by parties amongst themselves or through acquiescence, between 15 August 1947 and 11 July 1991 are also exempted from the operation of this Act. The 11 July 1991 is proposed as the commencement date of the Act as on that day the President addressed Parliament making such a declaration. The Bill seeks to achieve the above objectives. An Act to prohibit conversion of any place of worship and to provide for the maintenance of the religious character of any place of worship as it existed on 15 August 1947, and for matters connected therewith or incidental thereto. Be it enacted by Parliament in the Forty‑second Year of the Republic of India as follows: Bar of conversion of places of worship. No person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof. Declaration as to the religious character of certain places of worship and bar of jurisdiction of courts, etc. (1) It is hereby declared that the religious character of a place of worship existing on 15 August 1947 shall continue to be the same as it existed on that day. (2) If, on the commencement of this Act, any suit, appeal or other proceeding with respect to the conversion of the religious character of any place of worship existing on 15 August 1947 is pending before any court, tribunal or other authority, the same shall abate, and no suit, appeal or other proceeding with respect to any such matter shall lie on or after such commencement in any court, tribunal or other authority, provided that if any suit, appeal or other proceeding instituted or filed on the ground that conversion has taken place in the religious character of any such place after 15 August 1947 is pending on the commencement of this Act, such suit, appeal or other proceeding shall not so abate and every such suit, appeal or other proceeding shall be disposed of in accordance with the provisions of sub‑section (1). (3) Nothing contained in sub‑section (1) and sub‑section (2) shall apply to (a) any place of worship referred to in the subsections which is an ancient and historical monument or an archaeological site or remains covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958 or any other law for the time being in force; (b) any suit, appeal or other proceeding with respect to any matter referred to in sub‑section (2) finally decided, settled or disposed of by a court, tribunal or other authority before the commencement of this Act; (c) any dispute with respect to any such matter settled by the parties amongst themselves before such commencement; (d) any conversion of any such place effected before such commencement by acquiescence; (e) any conversion of any such place effected before such commencement which is not liable to be challenged in any court, tribunal or other authority being barred by limitation under any law for the time being in force. The Act shall override other enactments. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any law other than this Act., A perusal of the Statement of Objects and Reasons and Sections 3, 4 and 7 of the Act of 1991, to which elaborate reference has been made by Mr. Naqvi, shows that the statute seeks to preserve the identity of places of worship of any religious denomination or any section thereof, forbidding its conversion into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof. A cutoff date has been introduced, with reference to which the existence of the religious character of the place of worship is to be preserved. That date is 15 August 1947. The fact in issue, therefore, that would attract the bar under the Act of 1991 is the act of conversion of an existing place of worship belonging to any religious denomination to that of another religious denomination or any other section of the same religious denomination; and the character that has to be preserved for any place of worship is with reference to 15 August 1947. The first and perhaps the terminal question to be answered, while judging the plea of a statutory bar to the present suit under the Act of 1991, is to find out if the reliefs that the plaintiffs claim are directed to convert what the revisionist claims to be the Gyanvapi Mosque into a Hindu temple., A perusal of the plaint, particularly the relief clause and the material averments, does not show that the existing character of the place of worship as the Gyanvapi Mosque, asserted by the revisionist, is sought to be altered. There are averments in the plaint based on the historical origin of the entire structure and the subsisting remnants of all that has happened in history to show that the image of Maa Sringar Gauri exists within the suit property at the backside of the Gyanvapi Mosque in the Ishan Kon (north‑east corner). This averment is in paragraph 9 of the plaint. There is also an averment that Lord Adi Vishweshwar is still in existence in his original shape in the western part of the old temple within the suit property, found in paragraph 10 of the plaint., There is an averment in paragraph 12(ii) of the plaint that a portion of the mandap of the old temple exists in the courtyard of the Gyanvapi Mosque, still in possession of the Hindus. A further averment in paragraph 12(iv) states that at the back of the western wall of the Gyanvapi Mosque there is the image of Goddess Maa Sringar Gauri, existing since time immemorial and worshipped continuously. In paragraph 12(v) of the plaint, it is pleaded that Hindus have continued to worship, on the western side of the Mosque, the 'Gupt', i.e., the invisible deity. The Hindus continue to worship the shape in the dilapidated wall of the ruins to the west of the Mosque as the abode of Maa Sringar Gauri and her son, Lord Ganesha. They also pay homage to the Panch Mandaps., In paragraph 25 of the plaint, it has been averred that it is undisputed that pooja and worship of Maa Sringar Gauri, Lord Ganesha, Lord Hanuman, Nandiji, visible and invisible deities, mandaps and shrines is being performed by the devotees. There is an averment that the Act of 1983 recognizes the right of devotees to worship the deities within the old temple complex., In paragraph 26 of the plaint, it is asserted that the worshippers of Lord Shiva and other subsidiary deities have the right to perform pooja and darshan of the shrines, sub‑shrines, asthan, images of deities, mandaps, including the image/shrine of Goddess Sringar Gauri., In paragraph 36 of the plaint, there is a clear averment that on the 4th day of Chaitra Navratra, Samvat 2078 of the Hindu calendar year or the Gregorian calendar date 16 April 2021, the devotees were allowed darshan and pooja of Maa Sringar Gauri. The plaintiffs along with other devotees performed pooja on 16‑04‑2021, but thereafter the plaintiffs are not being allowed to perform the daily pooja., It is pleaded in paragraph 42 and 43 of the plaint that the devotees of Lord Shiva were performing daily pooja and worship of Maa Sringar Gauri and the other deities within the old temple continuously till 1990, when during the Ayodhya movement the Government of Uttar Pradesh placed restrictions on the daily pooja, and since 1993 the State Administration, working under the oral orders of the State Government, are allowing the devotees to perform pooja only on the 4th day of the Vasantik Navratra in Chaitra. The plaintiffs perform pooja, do darshan from outside and perform rituals there. They also worship within the old temple whenever they are allowed to enter., In paragraph 27 and 44 of the plaint, it is averred that the State Government has no right, power or jurisdiction to restrict the right of devotees to worship by passing a restraint order without any authority of law and without giving reasons to impose such restrictions. Doing so completely negates the plaintiffs' right to practice their religion guaranteed under Article 25 of the Constitution., In paragraph 45 of the plaint, it is averred that the State Government has no right to infringe the fundamental rights of citizens guaranteed under Article 25 by restricting the pooja and darshan to a single day. The officers of the Government, in imposing those restrictions, are infringing the rights of citizens, which is arbitrary and void., In paragraph 46, it is averred that the plaintiffs and devotees of Lord Shiva have the fundamental right to uninterrupted daily darshan, pooja, aarti, bhog and the performance of rituals of Goddess Maa Sringar Gauri at the asthan of Lord Adi Sri Vishweshwar along with Lord Ganesha, Nandiji and other deities within the old temple complex, existing at Settlement Plot number 9130, Ward and P.S. Dashashwamedh. These averments have been made in aid of the reliefs claimed in clauses (a) and (b) of the relief clause., The averments above have been made to support the plaintiffs' right to worship Maa Sringar Gauri at the asthan of Lord Adi Vishweshwar and the other deities, visible and invisible., In paragraph 47 of the plaint, there are averments to support the relief sought in clause (c) of the plaint, directed to ensure that the defendants do not demolish, damage, destroy or cause any damage to the images of deities of Goddess Maa Sringar Gauri, Lord Ganesha, Lord Hanuman and the other deities, visible and invisible., In paragraph 47 of the plaint, it is averred that the plaintiffs, on 10 August 2021, learned that some members of the Muslim community, with the active support of the revisionist, are intending to damage or destroy the images of deities Maa Sringar Gauri, Lord Ganesha, Lord Hanuman Virajman within the old temple with the intention to deprive the members of the Hindu community from darshan and pooja., In paragraph 48 of the plaint, it is pleaded that under the undue influence exerted by the State Government and the District Administration, the Board of Trustees of Sri Kashi Vishwanath Temple had to give 1000 square feet of land belonging to the Trust by entering into a deed of exchange with the Uttar Pradesh Sunni Central Board of Waqf., In paragraph 49, it is said that the plaintiffs have reasons to believe that the State Government and the District Administration of Varanasi would be silent spectators and will not take any action if the revisionist, their members and followers cause damage to the images of the deities within the precincts of the old temple., It appears that on 16 April 2021, the plaintiffs had darshan and performed pooja of Maa Sringar Gauri, but on the following day, 17 April 2021, they were prevented from doing so by defendant‑respondents numbers 6, 7 and 8 to the suit, as pleaded in the plaint, particularly paragraph 50. The nature and scope of the plaintiffs' right, the nature of the suit and the restrictions placed on the plaintiffs' right by the State are impugned in the suit., Upon a reading of the plaint, it is evident that the plaintiffs have not brought the suit as a class action seeking to represent, as relators, the right of Hindus in general or a particular class who are devotees of Lord Shiva, Maa Sringar Gauri, Lord Ganesha, Lord Hanuman, to do pooja or darshan of the deities in the suit property. The plaintiffs have asserted that there has been such a right since time immemorial amongst the devotees of Lord Shiva, Maa Sringar Gauri, Lord Ganesha, Lord Hanuman, which has been exercised in one form or another. What the plaintiffs seek to exercise is their individual right to worship Lord Shiva, Maa Sringar Gauri, Lord Ganesha, Lord Hanuman, Nandiji, visible and invisible deities, tracing their right to their religious beliefs and supporting it by averments regarding the tradition amongst Hindus to worship these deities. The plaintiffs have elaborately averred about the basis of their religious belief founded on Hindu scriptures to show that their belief is well‑grounded in religious text. Beyond that, the right pleaded by the plaintiffs is their personal right to worship the named deities in situ, i.e., the suit property. There is no pleading, apart from narration of historical events concerning the suit property, which may show any cause of action or relief to convert the existing Gyanvapi Mosque into a temple or any other place of worship of the Hindus, within the mischief of Sections 3, 4 and 7 of the Act of 1991., A reading of the plaint shows that according to the plaintiffs, there is a right as Hindus to perform pooja of Goddess Maa Sringar Gauri, Lord Ganesha, Lord Hanuman, Nandiji and other visible and invisible deities, though due to events over time the exercise of that right has become restricted. At present, one right that the plaintiffs are free to exercise on a daily basis is the performance of pooja of Goddess Maa Sringar Gauri, Lord Ganesha, Lord Hanuman, with rituals and circumambulation (parikrama) of Lord Adi Vishweshwar. This right is exercised in relation to the image of the deities that exists at the backside of the Gyanvapi Mosque in the Ishan Kon (north‑east corner). The plaintiffs say they can exercise this right at any time and it is being continuously exercised by other devotees without restriction. Apparently, this right to do pooja through rituals and circumambulation is from outside the suit property and not by entering it.
id_1394	3	The other right that the plaintiffs claim to exercise in the present is to perform pooja of Goddess Maa Sringar Gauri, Lord Ganesha, Lord Hanuman, Nandiji and other visible and invisible deities by entering the suit property. This right, which was exercised daily by Hindus before 1993, was later restricted to a single day – the fourth day of Vasantik Navratra in Chaitra – in the year 1993 under oral instructions of the State Government conveyed by the District Administration represented by defendant‑respondents Nos. 6, 7 and 8. The plaintiffs question the State Government’s authority to impose this restriction as it violates their rights guaranteed under Article 25 of the Constitution., The plaint alleges that the daily worship was exercised up to the year 1990 and that the restriction to a single day was introduced by the Government after 1990. Mr Naqvi emphasized that the pleadings are unclear about the exact date when the right changed from daily to a single‑day exercise. A proper reading of the paragraph, together with other averments, shows that the restriction was an administrative or law‑and‑order measure taken in the aftermath of the Ayodhya movement, not a legislative edict or judicial order., The plaintiffs assert that a daily right to perform pooja and darshan of the deities existed until 1990 and was curtailed for administrative exigency to a single day in 1993. They maintain that this right has never been extinguished and that they are entitled to worship at any time of the year. The restriction was imposed by the State Government and the District Administration of Varanasi, considering the law‑and‑order situation prevailing at that time., The State Government and defendant‑respondents Nos. 6, 7 and 8, who represent the District Administration of Varanasi, took no stand before the Supreme Court of India. The issue before the Supreme Court of India is whether the suit is triable on the basis of the averments in the plaint. The law on this point is settled by the Supreme Court of India in P.V. Guru Raj Reddy represented by G.P.A. Laxmi Narayan Reddy and another v. P. Neeradha Reddy and others., In P.V. Guru Raj Reddy the Supreme Court of India observed: “Rejection of the plaint under Order 7 Rule 11 of the Code of Civil Procedure is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order 7 Rule 11 are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that have to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power under Order 7 Rule 11, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. Only if the averments in the plaint ex facie do not disclose a cause of action or the suit appears barred under any law can the plaint be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial.”, A similar view was expressed by the Supreme Court of India in H.S. Deekshit and another v. M/s. Metropoli Overseas Limited and others. The question raised by the revisionist that the suit is barred under the Act of 1991 is based on the provision that prohibits conversion of a place of worship of one religious denomination to another, preserving the status as of 15 August 1947. The plaint does not seek conversion of the Gyanvapi Mosque into a Hindu temple; it seeks enforcement of the plaintiffs’ right to worship according to established tradition., The right to worship the deities of Goddess Maa Sringar Gauri, Lord Ganesha and Lord Hanuman, as claimed by the plaintiffs, is neither a new right nor a right that ceased after 15 August 1947. The plaintiffs assert that this right was exercised continuously up to 1990 without interruption and that the restriction to a single day was a temporary administrative measure., The exercise of the right ran a troubled course between 1990 and 1993, when it was limited to the fourth day of Vasantik Navratra in Chaitra as an administrative exigency. The restriction was not the result of any objection by the revisionist; it was imposed by the State Government and the District Administration. The plaintiffs seek to enforce the existing right throughout the year, a matter that will be determined at trial., The Supreme Court of India notes that allowing devotees to perform pooja and darshan on a single day does not threaten the character of the mosque, and extending the practice to a daily or weekly affair would not convert the mosque into a temple. Any necessary arrangements by the local administration or the Government are matters of regulation, not of law., The declaration sought by the plaintiffs appears to be an ex abundanti cautela relief. Since the relief concerns only the frequency of exercising the right and not the right itself, the Supreme Court of India considers that a declaration may not be necessary., The plaintiffs also seek an injunction to prevent the apprehended demolition of the deities situated in the north‑east corner of the Gyanvapi Mosque. This is a quia timet injunction, which must be proved according to its own standards. The injunction aims to preserve the existing images of the deities and does not alter the character of the mosque, therefore it does not fall within the bar of Sections 3 and 4 of the Act of 1991., Relief (d) is ancillary to the other reliefs and seeks directions to the Government and the Administration to make security arrangements enabling the plaintiffs to exercise their right to worship daily within the suit property. Since the other reliefs are not ex facie barred by Sections 3 and 4 of the Act of 1991, clause (d) of Rule 11 of Order VII of the Code of Civil Procedure would not render the suit non‑triable., Mr Naqvi argued that the plaint is a piece of clever drafting intended to disguise an attempt to alter the character of the mosque into a temple. He relied on the decision of V.R. Krishna Iyer, J. in T. Arivandandam v. T.V. Satyapal and another, where the learned judge warned against frivolous suits created by clever drafting. The Supreme Court of India, however, finds that the present plaint is not a piece of clever drafting; it seeks to enforce a subsisting individual right of worship that has been exercised since before 15 August 1947., The learned District Judge held that the suit is not barred by the Act of 1991, and the Supreme Court of India sees no ground to interfere with that conclusion., A plea of limitation was raised by Mr Naqvi in his rejoinder, alleging that the right is barred because the declaration is sought 28 years after the cause of action first accrued. He referred to Article 58 of the Schedule to the Limitation Act, 1963, arguing that the suit should have been filed within three years of the accrual in 1990 or 1993. The Supreme Court of India notes that raising a limitation plea at the stage of an Order VII Rule 11 application, when it was not raised earlier, is exceptionable., Mr Jain submitted that the suit is not barred by limitation because the right to worship gives rise to a continuous or recurring cause of action. He argued that the limitation period runs from the first accrual of the right in 1990 or 1993, making the present suit time‑barred. The Supreme Court of India rejects this argument, stating that the plaintiffs’ right is an individual right, not a class action, and therefore the limitation period does not run from the alleged earlier accruals of other Hindus., The Supreme Court of India explains that the objection on the ground of limitation cannot be accepted because the plaintiffs seek to enforce an individual right of worship. The right of a member of a religious community to worship is both a civil right and a fundamental right, enforceable individually. No earlier class action binds the present plaintiffs, and the inaction of other members does not trigger limitation against an individual claimant., The principle that the right to worship is an individual right enforceable by a single devotee has been settled in Jawahra and others v. Akbar Husain, a Full Bench decision of this Court. The Court held that every Muslim who has a right to use a mosque for devotion is entitled to exercise it without hindrance and may maintain a suit against anyone who interferes, irrespective of the provisions of Section 30 of the Code of Civil Procedure. The decision clarified that the right is not a joint right but an individual right that can be enforced through individual action., In the concurring opinion in Jawahra, Justice Mahmood affirmed that the right to use a mosque is akin to a private right, enforceable by the individual holder. This principle applies equally to worshippers of any religion, including the Hindu plaintiffs in the present case., The Supreme Court of India therefore holds that the plaintiffs’ cause of action arose on 17 April 2021, the day following the fourth day of Vasantik Navratra in Chaitra of the calendar year 2021, when they were denied the daily right to worship., It is common ground that prior to 1990 or 1993 the pooja and darshan of the deities in the suit property was a daily affair. The restriction to a single day constitutes a continuing wrong within the meaning of Section 22 of the Limitation Act, 1963. The denial of the right to worship is a continuing injury that occurs every day it is denied. The State Government and the District Administration restricted the right to a single day for administrative reasons but did not deny the existence of the deities. Consequently, the bar of limitation does not apply to the plaintiffs’ claim.
id_1394	4	There is, therefore, without doubt the basis to say for any devotee, including the plaintiffs, that denial of the right to worship the Deities is a continuing wrong that accrues every day. Any person among the Hindu devotees who is denied the right on any day would be within his right to commence action on the day he or she is prevented from worshipping the Deities., The distinction between what would constitute a continuing wrong within the meaning of Section 22 of the Act of 1963 and what would be a concluded and completed wrong with a lingering effect of the injury fell for consideration of the Constitution Bench in M. Siddiq (supra). In M. Siddiq, what constitutes a continuing wrong and what does not was elucidated thus:, 342. A continuing wrong, as the Supreme Court of India held in Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan, 1959 Supplement (2) Supreme Court Reporter 476; All India Reporter 1959 Supreme Court 798, is an act which creates a continuing source of injury. This makes the doer of the act liable for the continuance of the injury. However, where a wrongful act amounts to an ouster, as in the present case, the resulting injury is complete on the date of the ouster itself. A wrong or default as a result of which the injury is complete is not a continuing wrong or default even though its effect continues to be felt despite its completion., 343. The submission of Nirmohi Akhara is based on the principle of continuing wrong as a defence to a plea of limitation. In assessing the submission, a distinction must be made between the source of a legal injury and the effect of the injury. The source of a legal injury is founded in a breach of an obligation. A continuing wrong arises where there is an obligation imposed by law, agreement or otherwise to continue to act or to desist from acting in a particular manner. The breach of such an obligation extends beyond a single completed act or omission. The breach is of a continuing nature, giving rise to a legal injury which assumes the nature of a continuing wrong. For a continuing wrong to arise, there must first be a wrong which is actionable because in the absence of a wrong there can be no continuing wrong. It is when there is a wrong that a further line of enquiry of whether there is a continuing wrong would arise. Without a wrong there cannot be a continuing wrong. A wrong postulates a breach of an obligation imposed on an individual, whether positive or negative, to act or desist from acting in a particular manner. The obligation on one individual finds a corresponding reflection of a right which inheres in another. A continuing wrong postulates a breach of a continuing duty or a breach of an obligation which is of a continuing nature., 122. How the above principle would apply may be best understood by the holding of their Lordships in M. Siddiq while rejecting the Nirmohi Akhara's defence to the plea of limitation, invoking the principle of continuing wrong in the following words: 344. In the present case, there are several difficulties in accepting the submission of Nirmohi Akhara that there was a continuing wrong. First and foremost, the purpose and object of the order of the Magistrate under Section 145 of the Criminal Procedure Code is to prevent a breach of peace by securing possession, as the Magistrate finds, on the date of the order. The Magistrate does not adjudicate upon rights nor does the proceeding culminate in a decision on a question of title. The order of the Magistrate is subordinate to the decree or order of a civil court. Hence, to postulate that the order of the Magistrate would give rise to a wrong and consequently to a continuing wrong is inherently fallacious., Secondly, would the surreptitious installation of the idols on the night between 22‑12‑1949 and 23‑12‑1949 create a right in favour of Nirmohi Akhara? Nirmohi Akhara denies the incident completely. The right which Nirmohi Akhara has to assert cannot be founded on such a basis and if there is no right, there can be no corresponding wrong which can furnish the foundation of a continuing wrong. There was no right inhering in Nirmohi Akhara which was disturbed by the order of the Magistrate. The claim of Nirmohi Akhara was in the capacity of a shebait to secure management and charge of the inner courtyard. Nirmohi Akhara has itself pleaded that the cause of action for the suit arose on 5‑1‑1950. Proceeding on the basis of this assertion, it is evident that the ouster which the Akhara asserts from its role as a shebait had taken place and hence there was no question of the principle of continuing wrong being attracted., 123. It would be noticed that in M. Siddiq, the right that was claimed by Nirmohi Akhara was that of a shebait, which is a right to the management of a temple or a right to office. There was admittedly an ouster from that office for Nirmohi Akhara, which was a concluded wrong when the ouster took place. The plea of continuing wrong was therefore discarded by their Lordships., 124. The decision in Balakrishna Savalram Pujari Waghmare and others v. Shree Dhyaneshwar Maharaj Sansthan and others was approved by the Constitution Bench in M. Siddiq. In Balakrishna Savalram Pujari Waghmare (supra), the following observations, expositing the principle in Hukum Chand v. Maharaj Bahadur Singh, a Privy Council decision about what constitutes a continuing wrong in the context of the right to worship, are of particular relevance:, 33. Similarly, in Hukum Chand v. Maharaj Bahadur Singh, 60 Indian Appeals 313 (All India Reporter 1933 Punjab Chief Court 193), the Privy Council was dealing with a case where the defendants' act clearly amounted to a continuing wrong and helped the plaintiff in getting the benefit of Section 23. The relevant dispute arose because alterations had been made by the Swetamvaris in the character of the charans in certain shrines and the Digambaris complained that the said alterations amounted to an interference with their rights. It had been found by the courts in India that the charans in the old shrines were the impressions of the footprints of the saints each bearing a lotus mark. The Swetambaris who preferred to worship the feet themselves have evolved another form of charan not very easy to describe accurately in the absence of models or photographs which shows toe nails and must be taken to be a representation of part of the foot. The Digambaris refused to worship it as being a representation of a detached part of the human body. The courts had also held that the action of the Swetambaris in placing the charans of the said description in three of the shrines was a wrong which the Digambaris were entitled to complain about. The question which the Privy Council had to consider was whether the action of the Swetambaris in placing the said charans in three of the shrines was a continuing wrong or not; and in answering this question in favour of the plaintiffs the Privy Council referred to its earlier decision in the case of Maharani Rajroop Koer (supra) and held that the action in question was a continuing wrong. There is no doubt that the impugned action did not amount to ouster or complete dispossession of the plaintiffs. It was action of the character of a continuing wrong and as such it gave rise to a cause of action de die in diem. In our opinion, neither of these two decisions can be of any assistance to the appellants. (emphasis by Supreme Court of India), 125. In view of the aforesaid position of the law propounded on very high authority about what constitutes a continuing wrong, and particularly in the context of the right to worship, there is no difficulty in this case to infer that the Hindu worshippers of the Deities Maa Sringar Gauri, Lord Ganesha and Lord Hanuman, which includes the plaintiffs, are sufferers of a continuing wrong in their individual right to worship the Deities. Therefore, there is no substance in the plea that the suit on the cause of action disclosed in the plaint is ex facie barred by limitation, by virtue of Article 58 of the Schedule to the Act of 1963., 126. So far as the case of the revisionist that Section 4(9) of the Act of 1983 bars the suit, the Supreme Court of India does not see how the said provision or the statute read as a whole would bar the present suit, which is one for the enforcement of the plaintiffs' right to worship. Section 4(9) of the Act of 1983 reads: 'Temple means the Temple of Adi Vishweshwar, popularly known as Sri Kashi Vishwanath Temple, situated in the City of Varanasi which is used as a place of public religious worship, and dedicated to or for the benefit of or used as of right by the Hindus, as a place of public religious worship of the Jyotirlinga and includes all subordinate temples, shrines, subshrines and the ashthan of all other images and deities, mandaps, wells, tanks and other necessary structures and land appurtenant thereto and addition which may be made thereto after the appointed date.', 127. It is urged on behalf of the revisionist that the purpose of enactment of the Act of 1983 is to provide for the proper and better administration of the Sri Kashi Vishwanath Temple, Varanasi and nothing beyond it. It is also contended that the statute has not been enacted to misappropriate any property which does not belong to Sri Kashi Vishwanath Temple. The contention that the Board of Trustees of Sri Kashi Vishwanath were privy to a decision that led the Uttar Pradesh Sunni Central Board of Waqf to exchange some land with the State for the establishment of a Police Control Room, would show that the Temple Trustees acknowledge the suit property as waqf property, is absolutely irrelevant here. Neither Section 4(9) of the Act of 1983 nor the transaction relating to exchange of land between the Waqf Board and the State of Uttar Pradesh have any relevance to the present suit, which is about the plaintiffs' right to worship the Deities situated in the suit property. The plaintiffs neither claim title to the suit property nor possession of it. They are not the Board of Trustees of Sri Kashi Vishwanath Temple engaged in a boundary dispute with the revisionist or a title dispute with the Waqf Board. In fact, the Supreme Court of India utterly fails to see how the Act of 1983 would have any bearing on the plaintiffs' right to worship the Deities located in the suit property., 128. The substance of the revisionist's case to urge a bar to the trial of the suit resting on the Act of 1995 is with reference to Section 85 of that statute. Section 85 of the Act of 1995 envisages a bar to the jurisdiction of civil courts, revenue courts and any other authority in respect of any dispute, question or other matter relating to any waqf, waqf property or other matter which is required by or under this Act to be determined by a Tribunal., 129. The crux of the matter is that, whereas there can be little doubt about a bar of the civil court's jurisdiction, or of the revenue court and any other authority in respect of any dispute, question or other matter relating to any waqf or waqf property, the controlling phrase in the section is 'which is required by or under this Act to be determined by a Tribunal'. Although the earlier part of the section brings almost everything related to a waqf property within the ambit of ouster, the determinative factor is that it should be a matter required by or under the Act of 1995 to be decided by a Tribunal. Therefore, for the bar under Section 85 of the Act of 1995 to operate and oust the civil court's jurisdiction, there must be a provision in the Act of 1995 that requires the matter to be decided by the Tribunal. The reference to the Tribunal in Section 85 is to the Waqf Tribunal, as defined under Section 3(q) of the Act, which in turn refers to Section 83(1)., 130. The plaintiffs seek a right to worship the Deities that Hindu devotees like the plaintiffs have long been exercising, even after 15 August 1947. The learned District Judge examined the provisions of Sections 33, 35, 47, 48, 51, 54, 61, 64, 67, 72 and 73 of the Act of 1995 and opined that the reliefs claimed by the plaintiffs—that they should be allowed to worship the Deities of Maa Sringar Gauri and other Gods and Goddesses in the suit property—are not matters covered under any of those provisions of the Act of 1995. Consequently, the reliefs are not matters required to be decided by or under the Act of 1995., 131. The other premise on which the learned District Judge held the Act of 1995 to be inapplicable is that the Act does not operate in case of non‑Muslims and strangers to the waqf in the determination of their rights to property, as listed under sub‑Section (2) of Section 5 of the Act of 1995. The Supreme Court of India is of the opinion that on this first limb alone the matter stands concluded, because there is no relief claimed by the plaintiffs that is required by or under the Act of 1995 to be decided by a Tribunal within the meaning of Section 85. There is absolutely no relief claimed regarding title or possession of the suit property, claimed to be waqf, to bring in the ouster of jurisdiction under Section 85. No matter envisaged to be decided by or under the provisions of the Act of 1995 by a Tribunal is involved in the nature of the relief that the plaintiffs claim. On this score alone, the Supreme Court of India agrees with the conclusions reached by the District Judge on a far more elaborate reasoning., 132. It goes without saying that all that has been said here is limited to the purpose of a decision on the revisionist's application under Order VII Rule 11 of the Code of Civil Procedure and would not affect the case of either party on merits at the trial., 133. In view of what has been said hereinabove, the Supreme Court of India finds no merit in this revision.
id_1395	0	Reportable Writ Petition (Civil) No 302 of 2023 State of Punjab Petitioner Versus Principal Secretary to the Governor Respondents of Punjab and Another Doctor Dhananjaya Y Chandrachud, Chief Justice of India, On 22 February 2023, the Council of Ministers of the Government of Punjab recommended the summoning of the Budget Session of the Sixteenth Punjab Vidhan Sabha on 3 March 2023 under Article 174(1) of the Constitution of India., On 23 February 2023, the Governor of Punjab addressed a communication to the Chief Minister of the State. The subject of the letter was: Cabinet decision on summoning of the house of the legislature of the State on 3 March 2023., The letter of the Governor refers to a prior exchange of correspondence between the Governor and the Chief Minister; the Governor having addressed an earlier communication of 13 February 2023 to which the Chief Minister had responded through a letter dated 14 February 2023 and a tweet of the same date., In his communication of 13 February 2023 to the Chief Minister, the Governor highlighted his concern on certain specific issues, namely: the basis on which principals were selected for being sent to Singapore for training; and the appointment of the Chairman of the Punjab Information and Communication Technology Corporation Limited., The Governor noted that while the Chief Minister had in his previous correspondence underscored the mandate with which he has assumed the office of Chief Minister, in terms of Article 167 of the Constitution, the Chief Minister is bound to furnish full details and information sought by the Governor., Besides the above two issues, the Governor sought clarification on the following matters: (a) About two lakh Scheduled Castes students were compelled to discontinue their studies due to non‑disbursal of scholarship by the Government (letter No. Spl. Secy. Gov/2022/95); (b) To remove the illegally appointed Vice Chancellor of Punjab Agricultural University vide letter No.5/1/2021‑PRB‑PAU‑2G/6904 dated 23‑11‑2022; (c) In spite of my detailed letter dated 14‑12‑2022 you chose to ignore all misdeeds of Shri Kuldeep Singh Chahal, Indian Police Service. You have not only promoted him but also posted him as Commissioner of Jalandhar and that too the orders being issued just before 26 January, knowing very well that the Governor is to unfurl the national flag at Jalandhar. I had to instruct the Director General of Police that the concerned officer should maintain distance during the ceremony. On this issue it seems that this officer was your blue‑eyed boy and you chose to ignore facts that were brought to your notice by this office; (d) Vide letter dated 4‑1‑2023 I wrote about the presence of Shri Naval Aggarwal in meetings of senior officers, where sensitive and confidential matters of security of the country are discussed. I have not received any reply to date; (e) My letters asking for details of advertisements where you were asked for complete details are also perhaps lying in cold storage., Responding to the above communication, the Chief Minister Bhagwant Mann issued a tweet in the following terms: 'Honourable Governor Sir, your letter was received through the media. All the subjects mentioned in the letter are state subjects. I and my government are accountable to three crore Punjabis according to the Constitution and not to any Governor appointed by the Central Government. Consider this as my reply.', This was followed by another communication of the Chief Minister dated 14 February 2023, in which he stated: 'Dated: 14.02.2023 Honorable Governor Sahib, I have received your letter No. Spl. Secy. Gov/2023/34 dated 13 February 2023. All the subjects mentioned in your letter are the subjects of the state government. In this regard, I would like to clarify that according to the Indian Constitution, I and my government are answerable to three crore Punjabis. You have asked me on what basis the principals are selected for training in Singapore. The people of Punjab want to ask, on what basis are the Governors in different states elected by the Central Government in the absence of any specific qualification in the Indian Constitution? Please increase the knowledge of Punjabis by telling this.', In the backdrop of the aforesaid communication by the Chief Minister and his tweet, the Governor, while responding to the request of the Cabinet for summoning the Budget Session of the Vidhan Sabha from 3 March 2023, stated that: 'Since your tweet and letter are not only patently unconstitutional but extremely derogatory also, therefore I am compelled to take legal advice on this issue. Only after getting legal advice will I take a decision on your request.', The inaction of the Governor in summoning the Assembly for the Budget Session has led to the invocation of the jurisdiction of the Supreme Court of India under Article 32 of the Constitution by the State of Punjab., The Government of Punjab seeks (a) a declaration that the Governor of Punjab is duty bound to act on the aid and advice of the Council of Ministers in matters of summoning or proroguing the Vidhan Sabha of the State of Punjab; (b) a writ of certiorari quashing the communication of the Governor dated 23 February 2023 stating that a decision on the recommendation of the Council of Ministers for summoning the Vidhan Sabha for its Budget Session would be taken only after obtaining legal advice; and (c) a direction to the Principal Secretary to the Governor of Punjab to facilitate the issuance of appropriate orders for summoning the Legislative Assembly for its Budget Session at 10 a.m. on 3 March 2023., Since the date for the convening of the Budget Session is barely three days away, the petition was mentioned for urgent orders, on which it was directed to be listed at 3.50 p.m. today., Doctor Abhishek Manu Singhvi, senior counsel, has appeared on behalf of the petitioner. Mr Tushar Mehta, Solicitor General of India, appears on behalf of the first respondent. Mr Ajay Pal, counsel, has appeared for the second respondent., At the outset, the Solicitor General placed on the record an order dated 28 February 2023 of the Governor of Punjab. For convenience of reference, the order is extracted below: 'In exercise of the powers conferred upon me by virtue of Clause (1) of Article 174 of the Constitution of India, I, Banwarilal Purohit, Governor of Punjab, hereby summon the Sixteenth Vidhan Sabha of the State of Punjab to meet for its Fourth (Budget) Session at 10.00 a.m. on Friday, the 3rd March 2023 in the Punjab Vidhan Sabha Hall, Vidhan Bhavan, Chandigarh.', In terms of the above order, the Governor of Punjab has summoned the Sixteenth Vidhan Sabha of the State of Punjab to meet for its Fourth (Budget) Session at 10 a.m. on 3 March 2023., With the issuance of the above order by the Governor, the reliefs which have been sought in the petition have been substantially fulfilled. However, before disposing of the petition, there are certain facets which must be highlighted by the Supreme Court of India in the exercise of its constitutional duty., The institution of these proceedings has its genesis in the communications issued by the Governor for the disclosure of information by the State government. Article 167 of the Constitution enunciates the duty of the Chief Minister to furnish information to the Governor. The provision is in the following terms: '167. Duties of Chief Minister as respects the furnishing of information to Governor, etc. It shall be the duty of the Chief Minister of each State (a) to communicate to the Governor of the State all decisions of the Council of Ministers relating to the administration of the affairs of the State and proposals for legislation; (b) to furnish such information relating to the administration of the affairs of the State and proposals for legislation as the Governor may call for; and (c) if the Governor so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council.', The Chief Minister has the duty to communicate to the Governor all decisions of the Council of Ministers relating to the administration of the affairs of the State and proposals for legislation. Going beyond the duty to communicate, the Chief Minister has a duty to furnish such information relating to the administration of the affairs of the State and proposals for legislation as the Governor may require. Moreover, if the Governor so requires, the Chief Minister is duty bound to submit for consideration to the Council of Ministers any matter on which a decision is taken by a Minister which has not been considered by the Council of Ministers., The power of the Governor to seek information under Article 167 must be read holistically with reference to his duties as constitutional head under the Constitution. The information that the Governor seeks under Article 167 would enable him to effectively discharge his duties. For illustration, the Governor has the power to direct reconsideration of bills that are passed in the assembly. For the Governor to make this decision, it is necessary that all the relevant information that would aid him in making the said decision be made available. Similarly, the Governor requires all relevant information to identify if a decision has been taken by a Minister individually without the consideration of the council. The Governor might be unable to discharge his duty under Article 167(c) if the Chief Minister does not discharge his duty under Article 167(a) and Article 167(b) by providing the Governor with the relevant information as requested. Thus, the Chief Minister is required to discharge his duties under Article 167 to enable the Governor to effectively discharge his duties stipulated in the Constitution., The power to summon, prorogue and dissolve the legislative assembly is enshrined in Article 174 of the Constitution, which is extracted below: '174. Sessions of the State Legislature, prorogation and dissolution. (1) The Governor shall from time to time summon the House or each House of the Legislature of the State 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 Governor may from time to time (a) prorogue the House or either House; (b) dissolve the Legislative Assembly.', The decision of a seven‑Judge Constitution Bench in Shamsher Singh versus State of Punjab has laid down that the Governor is a constitutional or formal head of the State and exercises powers and functions on the aid and advice of the Council of Ministers. Relevant extracts are: '28. Under the Cabinet system of Government as embodied in our Constitution the Governor is the constitutional or formal head of the State and he exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion. 32. It is a fundamental principle of English constitutional law that Ministers must accept responsibility for every executive act. In England the Sovereign never acts on his own responsibility. The power of the Sovereign is conditioned by the practical rule that the Crown must find advisers to bear responsibility for his action. Those advisers must have the confidence of the House of Commons. This rule of English constitutional law is incorporated in our Constitution. The Indian Constitution envisages a parliamentary and responsible form of Government at the Centre and in the States and not a Presidential form of Government. The powers of the Governor as the constitutional head are not different.', This position was reiterated by a Constitution Bench in Nabam Rebia v. Deputy Speaker, Arunachal Pradesh Legislative Assembly. In view of the constitutional provision and the judgments of this Court, there can be no manner of doubt that the authority entrusted to the Governor to summon the House or each House of the Legislature of the State is to be exercised on the aid and advice of the Council of Ministers. This is not a constitutional arena in which the Governor is entitled to exercise his own discretion. In the present case, the Governor was not summoning the House for the first time following a general election, but was advised by the Council of Ministers to convene the Budget Session, at the behest of a government which has been duly elected in the general election. Plainly, the Governor was duty bound to do so., While responding to the request by the Council of Ministers for summoning the House, the communication of the Governor dated 23 February 2023 referred to the Cabinet decision. However, the Governor also referred to the tweet of the Chief Minister and to his letter dated 14 February 2023 and then proceeded to state that since both the tweet and the letter were patently unconstitutional and extremely derogatory, he was compelled to take legal advice on this issue and that he would decide on the request thereafter. There was no occasion to seek legal advice on whether or not the Budget Session of the Legislative Assembly should be convened. The Governor was plainly bound by the advice tendered to him by the Council of Ministers., Having said this, it would also be necessary to underscore that both the Chief Minister and the Governor are constitutional functionaries who have specified roles and obligations earmarked by the Constitution. The Governor has a right to seek information from the Chief Minister in terms of Article 167(b) on matters relating to the administration of the affairs of the State and proposals for legislation. Once such information is sought, the Chief Minister is duty bound to furnish it. The tone and tenor of the tweet and the letter by the Chief Minister leave much to be desired. Not furnishing the information which was sought by the Governor would be plainly in dereliction of the constitutional duty imposed on the Chief Minister in terms of Article 167(b). Yet on the other hand, the dereliction of the Chief Minister to do so would not furnish a justification for the Governor not to comply with the constitutional obligation to summon the House for its Budget Session in terms of the advice tendered by the Council of Ministers. It was after the institution of the petition under Article 32 that the Assembly was summoned., The genesis of the controversy has required the intervention of the Supreme Court of India at two distinct levels: first, to ensure that the constitutional duty of the Governor to act on the aid and advice of the Council of Ministers to summon the Legislative Assembly is fulfilled without delay or demur; and second, to ensure that the obligation of the Chief Minister to furnish information to the Governor in terms of Article 167(b) of the Constitution is fulfilled. There are two equally important aspects for the functioning of a parliamentary democracy. First, the failure of a constitutional authority to fulfill its obligation under a distinct provision of the Constitution does not furnish a justification to another to decline to fulfill its own constitutional obligation. Second, while this Court is cognizant of the importance of free speech and expression and the fundamental value embodied in Article 19(1)(a), it becomes necessary to emphasize that constitutional discourse has to be conducted with a sense of decorum and mature statesmanship., Political differences in a democratic polity have to be worked upon and sorted out with a sense of sobriety and maturity. The dialogue between constitutional functionaries cannot degenerate into a race to the bottom. Unless these principles are borne in mind, the realization of constitutional values may be placed in jeopardy. Such a situation emerged before this Court, leading to the institution of a petition under Article 32 of the Constitution for a direction to the Governor to summon the Legislative Assembly. It is inconceivable that the Budget Session of the Legislative Assembly would not be convened. We can only hope that mature constitutional statesmanship will ensure that such instances do not occur in the future as we reiterate our expectation that constitutional functionaries must be cognizant of the public trust in the offices which they occupy. The public trust entrusted to them is intended to sub‑serve the cause of our citizens and to ensure that the affairs of the nation are conducted with a sense of equanimity so as to accomplish the objects of the Preamble to the Constitution., With these observations, the petition shall stand disposed of., Pending applications, if any, stand disposed of.
id_1396	0	Petitioner: Rama Kant Dixit. Respondent: Union of India through Cabinet Secretary, South Block, New Delhi and others. Counsel for petitioner: Asok Pande. Honorable Justice Devendra Kumar Upadhyaya, J. Honorable Justice Subhash Vidyarthi, J. This petition invokes jurisdiction under Article 226 of the Constitution of India and has been filed ostensibly in public interest by a practising lawyer of the Supreme Court of India., Prayers made in this petition are extracted herein below: To issue a writ of mandamus directing respondent number two to appoint a new Advocate General for the State without any further delay after accepting the resignation of respondent number three already submitted to the Government a long back. To issue a writ of mandamus directing the Government of India as well as the State of Uttar Pradesh to fix the monthly remuneration to be paid to the Attorney General for India and the Advocate General for the State for performing the duties of the office. To issue any such other order or direction which this Honorable Court may deem fit and proper in the facts and circumstances of the present case., Learned Chief Standing Counsel Sri Abhinav N. Trivedi, representing respondent number two, has drawn attention to certain averments made in paragraph 15 of the writ petition and submitted that the contents of that paragraph have been sworn in the affidavit filed in support of this petition by the petitioner on the basis of his personal knowledge. He stated that any public interest litigation with such unsubstantiated, irresponsible, reckless and even scandalous pleadings should not be entertained. He specifically drew attention to the later part of paragraph 15 where certain allegations have been made by the petitioner in respect of the lawyers' community at large, stating that some ‘big lawyers’ are trying to manage their appointment as Advocate General and are willing to pay crores of rupees to persons who can manage their appointment to the post. Further averment is that this is happening because crores of rupees per year are being paid to the Advocate General from the State Exchequer and by “good use” of his office, he can manage hundreds of crores of rupees from other sources., When we perused the affidavit filed in support of the writ petition, we found that the contents of paragraphs 1 to 21, including paragraph 15, have been sworn by the petitioner to be true on the basis of his personal knowledge. On our direction, Sri Rama Kant Dixit, the petitioner, was present. When we enquired from him as to the basis of such irresponsible statements made in the writ petition, he stated that he had simply put his signature on the writ petition without going through the averments made therein. We note the candid confession made by the petitioner, who is a practising lawyer of the Supreme Court of India with twenty‑seven years of standing and who is a member of the Governing Council of the Oudh Bar Association. We also express concern for the manner in which such a statement appears to have been made in a petition filed allegedly in the larger public interest. Filing a public interest litigation with no sense of responsibility cannot be appreciated; such an act on the part of the petitioner is reprehensible., In view of the foregoing, we are of the opinion that this petition should not be permitted to be pursued any further by the petitioner. Accordingly, we discharge him from the petition., Considering the prayers made in the writ petition, we find that the petition concerns the appointment of the Advocate General, a constitutional functionary, in the State of Uttar Pradesh. The petition also contains a prayer for a direction to the Government of India as well as the State of Uttar Pradesh to fix the monthly remuneration to be paid to the Attorney General and to the Advocate General for performing the duties of their respective offices. In support of the second prayer, no details as regards the remuneration being paid or drawn by either the Attorney General or the Advocate General in the State of Uttar Pradesh have been provided. The writ petition lacks adequate pleadings in support of this prayer. Such information ought to have been obtained by the petitioner before making any averments of this nature. Accordingly, we are of the opinion that the petition, as far as the second prayer is concerned, cannot be entertained on account of deficient pleadings. The petition to that extent is dismissed., We find that the first prayer concerns the public at large, as the non‑availability of the Advocate General, who is a constitutional functionary, cannot be said to be in the interest of any one, including the State executive. Regarding the appointment of the Advocate General, lengthy submissions have been made by Sri Asok Pande relying upon a Division Bench judgment of this Court delivered on 21 August 2014 in Writ Petition No. 7335 (Miscellaneous/Banking) of 2021 (Rohit Tripathi versus State of Uttar Pradesh and others). The judgment in the case of Rohit Tripathi refers to a judgment of the Honorable Supreme Court in M. T. Khan and others versus Government of Andhra Pradesh and others, reported in (2004) 2 SCC 267. Observations made by the Division Bench in the case of Rohit Tripathi are of relevance to the issue raised in this petition., It is not in dispute that, in terms of Article 165 of the Constitution of India, the Advocate General has to be appointed and discharges not only constitutional obligations but also statutory functions and duties mandated by various legislations such as the Code of Criminal Procedure, the Code of Civil Procedure and the Contempt of Courts Act, among others. There is no doubt that any vacancy in the office of Advocate General should not be permitted to remain unfilled. It has been informed that the incumbent Advocate General has tendered his resignation, though the resignation has not been accepted. Thus, the factual scenario is that the office of Advocate General is not vacant; however, the incumbent has vacated his official accommodation, his office in the High Court, Lucknow, and is not discharging the duties and functions of the office. Learned Chief Standing Counsel Sri Abhinav N. Trivedi, on the basis of instructions, submitted that the resignation tendered by the incumbent Advocate General and the matter relating to the appointment of a new Advocate General will be taken up simultaneously by the State Government and that two weeks’ time may be granted. We have already noted that the office of Advocate General cannot be permitted to remain vacant. Any vacuum in the office of a constitutional functionary may lead to an unsavory situation and would be impermissible, having regard to the scheme of our constitution and the statutory functions to be performed. We feel that the time prayed for by the State through learned Chief Standing Counsel is more than required. We therefore grant a week’s time for a decision in this regard., The case is listed on 16 May 2022 as fresh. We express our solemn hope and expectation that by the next date of listing, the State shall take all remedial measures to ensure that the office of Advocate General does not remain vacant or non‑functional. Since the petitioner has been discharged, we appoint Sri Satish Chandra Kashish, a practising lawyer of the Supreme Court of India, to assist as Amicus Curiae in the matter. Sri Asok Pande shall also be at liberty to assist the Court on the next date. The Office is directed to change the cause title of the present petition and register it as “Suo Motu Public Interest Litigation in re: Appointment or Vacancy in the Office of Advocate General”. The Office is also directed to furnish a copy of the petition to the learned Amicus Curiae, Sri Satish Chandra Kashish. Let a certified copy of this order be issued to the parties on payment of usual charges; however, a certified copy shall be provided to Sri Satish Chandra Kashish by the Office free of charge.
id_1398	0	Applicant: Om Prakash. Opposite Party: State of Uttar Pradesh and Another. Counsel for Applicant: Raghav Ram, Vibha Diwedi. Counsel for Opposite Party: G.A. The applicant seeks quashing of proceedings of Sessions Case No. 575 of 2020, State v. Om Prakash (arising out of Case Crime No. 339 of 2020), under Sections 376(1), 323, 357‑ka, 504, 506 of the Indian Penal Code, 1860 and Sections 7 and 8 of the Protection of Children from Sexual Offences Act, 2012, Police Station Kotwali, District Jhansi, pending before the Special Judge, Protection of Children from Sexual Offences Act, Jhansi., According to the First Information Report lodged by the complainant‑opposite party No. 2, the opposite party is a widow and became friends with the applicant, Om Prakash, who held out a false promise to marry her. The complainant has five children – two daughters and three sons – begotten of her deceased husband. The FIR further says that on 23.08.2020, the complainant, deceitfully promising to marry her, had carnal relations with her and also molested her daughter with questionable intentions. Thereafter, he beat up the complainant. On 26.08.2020 at 10 o’clock at night, the applicant ravished the complainant. On the basis of the said FIR, the present crime has been registered, including offences of rape and those under the Protection of Children from Sexual Offences Act, 2012. The complainant has supported her case before the Magistrate in her statement under Section 164 of the Code of Criminal Procedure, 1973. The allegations of rape and molestation are also supported in her statement under Section 164 of the Code of Criminal Procedure, 1973 by the complainant’s daughter, who is a minor., Now, learned counsel for the applicant points out that the applicant and the second opposite party have married according to Hindu rites on 15.08.2021 and are living together as man and wife. It is pointed out by the learned counsel for the applicant that the complainant‑opposite party has filed an application before the Special Judge that in view of the parties’ marriage, she does not want to pursue the prosecution, which should be disposed of on the basis of a compromise. It is submitted by the learned counsel for the applicant that no useful purpose would be served in carrying on the prosecution, which would be an abuse of process of the Special Judge, Protection of Children from Sexual Offences Act, Jhansi. Upon hearing learned counsel for the applicant and the learned Additional Government Advocate, the Special Judge, Protection of Children from Sexual Offences Act, Jhansi is of the opinion that prosecution in heinous offences such as rape and molestation of minors, which are punishable under the Protection of Children from Sexual Offences Act, 2012, the victims do not have the freedom to compromise as if it were a compoundable offence or a civil cause. The State is the forerunner of the prosecution and it is the State who has to pursue the prosecution to its logical conclusion. The endeavour of the Court in a matter involving such a heinous offence is to determine the truth of the allegations. The purpose is not to persecute the accused nor is it to let him off, because his relations with the complainant has taken a happier turn. An offence of rape or one under Sections 7 or 8 of the Protection of Children from Sexual Offences Act, 2012 is an offence against society, the truth of which has to be established before a Court of competent jurisdiction on the basis of whatever evidence is led at the trial. The accused may be acquitted if the charge is not proved, or if proved, he would be convicted. Short of that, the accused can say that he is entitled to be discharged. Of course, he will have that right, wherever the law permits and at whatever stage. In any eventuality, in a matter like the present one, this Special Judge, Protection of Children from Sexual Offences Act, Jhansi cannot interdict the prosecution and quash proceedings for the saying of the complainant, based on compromise between parties. In the result, this application fails and stands rejected.
id_14	0	The writ petition and the Criminal Miscellaneous Case (Crl.M.C.) No. 4375/2020 came up together for hearing as the issue involved in both cases pertains to the registration of a First Information Report by the Central Bureau of Investigation (CBI) with respect to the same matter and none of the counsel objected to the joint hearing., The writ petitioner prayed for quashing Exhibit P5 FIR registered by the CBI. He is a businessman who formed a company named Unitac Builders and Developers for entering into the field of construction and another company Sane Ventures LLP for conducting business in hospitality and construction sectors. As part of his business, he entered into two agreements Exhibit P1 and P2 dated 31/7/2019 with the Consulate General of United Arab Emirates, Trivandrum, Kerala for the construction of residential apartments for a total consideration of AED 70,00,000 (UAE dirhams) and a hospital complex for a total consideration of AED 30,00,000 (UAE dirhams). As part payment for the construction, an amount of Rs. 14,50,00,000 (Rupees fourteen crores fifty lakhs) was transferred by the UAE Consulate to the companies' account. Exhibit P1 and P2 were executed in sequence upon an agreement dated 11/07/2019 between the State of Kerala and the UAE Red Crescent Authority (a voluntary humanitarian organization affiliated to the International Federation of Red Cross). As per the said agreement, the UAE Red Crescent agreed to give assistance to the recent Kerala flood victims by spending AED 10,000,000 (ten million UAE dirhams) for constructing homes and a health centre. Later the petitioner was asked by the Consular General of United Arab Emirates, Trivandrum, Kerala through one Swapna Suresh to give an amount of AED 2 million or equivalent Indian rupees for awarding the present and future projects. An amount of Rs. 3,80,00,000 (Rupees three crores eighty lakhs) was converted into US dollars as per the instruction given by the UAE Consulate General, Trivandrum, Kerala and it was entrusted to one Mr. Khalidh working as the economic head of the UAE Consulate as per the instructions of the Consulate General of United Arab Emirates, Trivandrum, Kerala. Another amount of Rs. 68,00,000 (Rupees sixty eight lakhs) was transferred to ISOMO trading company owned by one Mr. Sandeep Nair for its liaison works. In addition to that, Mrs. Swapna Suresh demanded five iPhones from the petitioner and it was accordingly handed over to her. Exhibit P3 is the true copy of the purchase bill dated 29/11/2019. In consonance with Exhibit P1 and P2, construction work was started in the property owned by the State Government. The petitioner does not come under the ambit of Section 4 of the Foreign Contribution (Regulation) Act, 2010 (FCR Act). The registration of the FIR is ultra vires and falls outside the scope of the Delhi Special Police Establishment Act, 1946 since no consent was given as mandated under Section 6 of the Act. Hence, the writ petition seeks a declaration that the CBI has no power to investigate a crime within the territory of the State Government without getting consent under Section 6 of the Delhi Special Police Establishment Act, to declare Exhibit P7 resolution as unconstitutional, to declare that the respondent has no jurisdiction to investigate the affairs of the petitioner's company, to declare that the power under Entry 80 of List I (Union List) of the Seventh Schedule can be exercised only by way of a proper legislative process and to quash Exhibit P5 on the ground that the FIR was registered by the CBI without complying with the requirements of a preliminary enquiry as mandated by the judgment of the Supreme Court of India in Lalita Kumari's case., In the Criminal Miscellaneous Case, the petitioner, the Chief Executive Officer, Livelihood, Inclusion and Financial Empowerment Mission (LIFE Mission), Government of Kerala sought to quash FIR No. RC 5(A)/2020/CBI/ACB/COCHIN dated 24/09/2020 (Annexure C) registered on the basis of Annexure A complaint lodged by Anil Akkara, Member of Legislative Assembly alleging offence under Section 35 read with Section 3 of the FCR Act read with Section 120 B of the Indian Penal Code., The Union of India submitted a written objection through Sri. K. Ramkumar, Senior Counsel for the Union of India that a writ petition cannot be maintained to quash the criminal proceedings initiated in Criminal Miscellaneous Case No. 4375/2020 and the FIR registered, relying on Union of India v. T. R. Varma (AIR 1957 SC 882). Reliance was also placed on State of West Bengal and Others v. Swapan Kumar Guha and others (AIR 1982 SC 949) with respect to the scope of Article 226 of the Constitution and its restriction in interfering with the investigation. Secondly, that the accused cannot choose a particular investigating agency of his choice by relying on the decisions in Romila Thapar and others v. Union of India and others (2018) 10 SCC 753 and Arnab Ranjan Goswami v. Union of India and others (2020 KHC 6393). Thirdly, that the investigation was initiated by the CBI as per the consent given by the State Government and request made through letter dated 8/7/2020 Dispatch Order No. 1130/2020/CM. Fourthly, as per the Manual for Disciplinary Proceedings dealing with vigilance enquiry, three categories of cases alone can be investigated by the Vigilance and Anti‑corruption Bureau viz.: (i) cases registered under the Prevention of Corruption Act; (ii) disciplinary proceedings pending before a Tribunal or Departmental Disciplinary Authority or Inquiring Authority on the basis of an enquiry conducted by the Vigilance Division; and (iii) any other disciplinary proceedings relating to receipt of illegal gratification, misappropriation of public funds or property and nepotism. Fifthly, that the Government of Kerala (the Hon’ble Chief Minister) by Dispatch Order No. 1130/2020/CM dated 8/7/2020 addressed to the Hon’ble Prime Minister of India requesting an effective and coordinated investigation by Central Agencies. Sixthly, that the petitioner cannot be permitted to approbate and reprobate at the same time by claiming exemption under the provisions of the FCR Act and lastly, that the CBI, being a constitutional entity, can exercise its power without even an executive order., The contentions raised by the CBI are that the Government Pleader is not expected to file the quash petition as the Government is not in the array of accused, that the FIR was registered only against the unknown officials of the LIFE Mission, that the Memorandum of Understanding is a subterfuge akin to taking a shower with a raincoat, and that the complaint discloses a cognizable offence under the FCR Act., It is submitted that the LIFE Mission is a unique complete housing project of the Government of Kerala among the four programmes launched as per Government Order (P) No. 41/2016/P&EAD, for providing housing facilities to all the landless and homeless persons in the State of Kerala. The LIFE Mission Project envisages construction of housing units by utilisation of Government funds, funds of sponsors and Local Self Government Institutions. The UAE Red Crescent, a voluntary humanitarian organization affiliated to the International Federation of Red Cross and Red Crescent Societies, agreed to provide ten million UAE dirhams for constructing housing units for the victims of the recent Kerala flood and a health centre, for which a Memorandum of Understanding was entered into on 11/07/2019 between the UAE Red Crescent Authority and the Government of Kerala through the Chief Executive Officer of LIFE Mission, by which it was agreed to provide ten million UAE dirhams for that purpose, more specifically, seven million UAE dirhams for constructing homes and three million UAE dirhams for the construction of a health centre. In furtherance of the aforesaid MoU, two separate construction agreements were entered into between the UAE Consulate General, Trivandrum, Kerala and Unitac Builders and Developers for the construction of dwelling units and Sane Ventures LLP for the health centre over a property having an extent of 2.17 acres of land owned by the State Government vested with the Wadakkenchery Municipality. Based on the two construction agreements, Exhibit P1 and P2, forty percent of the project cost of ten million UAE dirhams was transferred to the accounts of Unitac Builders and Developers and Sane Ventures LLP on 1/8/2019 and 2/8/2019. The property was made available for the purpose of construction and the construction of the building was commenced. It was at this juncture that a complaint was preferred before the CBI by the then MLA Anil Akkara, which resulted in the registration of the crime., It is alleged that the complaint and subsequent registration of the FIR was intended to sabotage and torpedo the very functioning of the LIFE Mission and to malign the State Government with ulterior political motives. As per the definition given to the expression “foreign contribution” under Section 2(1)(h) and “foreign source” under Section 2(1)(j) read with Section 3 of the FCR Act, the offence alleged in the complaint would not be attracted. Further, it is submitted that the allegations that the foreign contribution received by Unitac Builders and Developers and Sane Ventures LLP directly from the Red Crescent was utilised to pay commission to various middlemen including government representatives and officials are misconceived. Neither Unitac Builders and Developers nor Sane Ventures LLP would fall within the scope of Section 3 of the FCR Act and they will not come under the purview of categories of persons prohibited from receiving any foreign contribution. Further, it was submitted that an offence under Section 3(2)(b) can be fastened only against a deliverer of a foreign currency and not against the recipient and sought corroboration from State of Karnataka v. L. Muniswamy and others (1977) 2 SCC 699, State of Karnataka v. M. Devendrappa (2002) 3 SCC 89 and R. P. Kapur v. State of Punjab (1960) 3 SCR 388. In any event, Section 4(a) of the Act excludes application of Section 3 in cases where a person accepts foreign contribution by way of salary, wages or other remuneration due to him or to any group of persons working under him. LIFE Mission is neither a person which would come under the purview of Section 2(1)(m) of the FCR Act nor a recipient or acceptor of any foreign contribution and hence there would not arise any necessity for having a registration under Section 11 of the FCR Act. The Central Government by Notification No. S.O. 459 (E) dated 30.01.2020 (Exhibit P6) exempted organisations (not being a political party), constituted or established by or under a Central Act or a State Act or by any administrative or executive order of the Central Government or any State Government and wholly owned by the respective Government and required to have their accounts compulsorily audited by the Comptroller and Auditor General of India, from the operation of the FCR Act. The framework of agreement entered into between UAE Red Crescent with the contractors does not have any legal relationship with LIFE Mission or the State Government. The State Government or the LIFE Mission has no role to play either in the construction of housing units through a contractor or builder of the choice of sponsor – UAE Red Crescent. Neither the State Government nor the LIFE Mission has accepted any contribution from UAE Red Crescent, but the amount was directly transferred to the accounts of Unitac Builders and Developers and Sane Ventures LLP. Provisions of the FCR Act cannot be read extensively so as to include transactions not included or expressly exempted under the Act. The Vigilance and Anti‑corruption Bureau has already initiated investigation against the alleged irregularities in the LIFE housing scheme. The allegation in the FIR registered by the Vigilance and Anti‑corruption Bureau pertains to kickbacks received by Mrs. Swapna Suresh (former Secretary to Consular General UAE Kerala) and other cohorts allegedly on behalf of Mr. Sivasanker IAS (Principal Secretary to the Chief Minister). It is contended that all these officers and offences would fall under the Prevention of Corruption Act, 1947 read with the Indian Penal Code. The FIR registered under the FCR Act hence is a device to hound the officials of LIFE Mission. It was registered by transgressing into the State’s power which is a challenge to the very federal structure envisaged by the Constitution of India. The CBI cannot conduct a roving enquiry and it is violative of Article 21 of the Constitution of India impinging upon the rights of the petitioner and relied upon Shree Shree Ram Janki Ji Asthan Tapovan Mandir and another v. State of Jharkhand and others (2019) 6 SCC 777 and Secretary, Minor Irrigation & Rural Engineering Services, U.P. & Others v. Shahngoo Ram Arya & another (2002) 5 SCC 521., The entire Case Diary was produced before this Court in a sealed cover by the CBI. Before dealing with the grounds raised by the parties, it is necessary to consider the nature and scope of the inherent power of the High Court of Kerala under Section 482 of the Code of Criminal Procedure (Cr.P.C.). The exercise of jurisdiction under Section 482 Cr.P.C. was well considered and laid down by a three‑Judge Bench of the Supreme Court of India in M. Devendrappa’s case (supra) that it is not the rule of law, but an exception and it will not confer any new powers on the High Court except the inherent powers possessed by it envisaging three circumstances namely: (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of the court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. It was reiterated by another three‑Judge Bench in L. Muniswamy’s case (supra) and also in R. P. Kapur’s case (supra). A roving enquiry as that of a trial court, appellate court or revisional court is not expected to be conducted while exercising the jurisdiction under Section 482 Cr.P.C., but the jurisdiction is confined only to the three contours laid down in Devendrappa’s case (supra). When an FIR was registered or investigation was commenced by an authority having no jurisdiction to enquire into the allegation, it would certainly be a matter to be considered by exercising the jurisdiction under Section 482 Cr.P.C. If the allegations contained in the FIR are found to be made with ulterior motive to harass the petitioners without any legal basis, it is well within the inherent power of this Court to stop the proceeding by quashing it (Harmanpreet Singh Ahluwalia and others v. State of Punjab and others (2009) 7 SCC 712)., The contention that no consent or permission was granted under Section 6 of the Delhi Special Police Establishment Act, 1946 cannot be maintained on the ground that by Notification No. 15421/SSA5 2017/Home dated 8/6/2017, the Kerala Government has accorded sanction under Section 6 of the Delhi Special Police Establishment Act enabling the CBI to register and investigate the crime which would fall under its jurisdiction. Further, by Dispatch Order 1130/2020/CM dated 08/7/2020, the Chief Minister of Kerala made a request to the Central Government to employ Central Agencies concerned for an effective and coordinated investigation on the alleged irregularities in the instant case. Hence the contention that the crime was registered and investigation was initiated without the consent as envisaged under Section 6 of the Delhi Special Police Establishment Act is totally devoid of merit. In fact, when there is revelation of an offence which would fall under any of the provisions of the FCR Act, Section 43 of the FCR Act would come into play, which is a non‑obstante clause and would operate notwithstanding anything contained in the Cr.P.C., and any offence punishable under the Act can be investigated by such authority as the Central Government may specify in this behalf., Inter alia, it was contended that Section 43 of the FCR Act cannot be utilised to exclude investigation by state agencies, namely the Vigilance and Anti‑corruption Bureau. FIR No. 02/2020 of VACB‑SIU‑1 regarding the kickbacks received by Mrs. Swapna Suresh (former Secretary to the Consular General UAE) and other associates allegedly on behalf of Mr. Sivasanker IAS (Principal Secretary to the Chief Minister) was registered, hence it was submitted that it should be investigated independent of the FCR Act and that the two investigations cannot be merged and used as a device to hound the officials of LIFE Mission. Registration of the FIR by the CBI transgressing into the State’s power is a challenge to the very federal system envisaged by the Constitution of India and the same ought not be countenanced by this Court, it was submitted. But the investigation commenced by the Vigilance and Anti‑Corruption Bureau may have its own limitations when the matter pertains to large‑scale malpractice involving the office of the Consular General UAE, Trivandrum, Kerala and its officials and hence the investigation initiated by a competent authority, a Central Agency, cannot be curtailed by exercising the inherent jurisdiction under Section 482 Cr.P.C., unless it is per se illegal and without any basis., One of the contentions raised is that the CEO of LIFE Mission has so far not been made an accused in the crime and, as such, has no locus standi to maintain the Criminal Miscellaneous Case to quash the FIR registered. In the complaint which led to the registration of the FIR, there are allegations against the office bearers of LIFE Mission including its Chairman, Vice‑Chairman, former CEO, present CEO, the earlier officers of the UAE Consulate, Trivandrum, Kerala namely Swapna Suresh, Sarith and their ally Sandeep Nair and the Managing Director of Unitac Builders and Developers and Sane Ventures LLP Mr. Santhosh Eappen. It is submitted that the investigation is being directed against unknown officials of LIFE Mission and hence the CEO of LIFE Mission has every right to challenge the investigation by invoking the inherent jurisdiction of this Court and relied upon Divine Retreat Centre v. State of Kerala and others (2008 (3) SCC 542), State of Uttar Pradesh v. Mohd. Naim (1964) 2 SCR 363 = AIR 1964 SC 703, Union of India v. State of Maharashtra (2003 SCC OnLine Bom. 1312). It was countered by the counsel for the CBI by citing Gulzar Ahmed Azmi and another v. Union of India and others (2012) 10 SCC 731, Janata Dal and others v. H. S. Chowdhary and others (1991) 3 SCC 756, Ashok Kumar Pandey v. State of West Bengal (2004) 3 SCC 349, State of Haryana and others v. C. Bhajan Lal and others (1992) SCC (Cri) 426, Central Bureau of Investigation v. Arvind Khanna (2019) 10 SCC 686 in support of their argument that an accused person alone can raise all questions and challenge the proceedings initiated against him and not by a third party. Further it is submitted that the legal position is consistent and settled in that it is not within the authority of an accused to ask for investigation by a particular agency or to conduct investigation in a particular manner (Romila Thapar and others v. Union of India and others (2018) 10 SCC 753 and Arnab Ranjan Goswami v. Union of India and others [2020 KHC 6393]). The legal position laid down in Janata Dal’s case, Gulzar Ahmed’s case and Ashok Kumar Pandey’s case (supra) pertains to a public interest litigation claiming relief by a third party under the guise of public interest which was declined by the Supreme Court of India, hence it cannot be extended to the instant case. The two applications submitted for impleadment in the Criminal Miscellaneous Case by a social worker and a journalist, viz. Criminal Miscellaneous Application No. 3/2020 and 4/2020, cannot be entertained in view of the legal position settled as above, hence both the applications deserve dismissal and they are so dismissed. In fact, the CEO or any of the officials under LIFE Mission was not specifically made an accused, but the crime was registered against unknown officials of LIFE Mission which would certainly carry the meaning that the investigation was initiated against the officials of LIFE Mission, including the CEO. The mere fact that the CEO was not specifically made an accused to the crime by itself will not take away his right to challenge the same, if it is directed against him. The locus standi to maintain a challenge under Section 482 Cr.P.C. must be assessed based on the principle of natural justice and the likelihood of causing adverse effect or consequences on the persons concerned., Indisputably, it is the Chief Minister who canvassed financial aid and contribution from a foreign source, the UAE Red Crescent. There is no dispute that the UAE Red Crescent is a foreign body. By virtue of Section 3 of the FCR Act, a prohibition is imposed on receiving and accepting contribution from a foreign source by the persons enumerated therein. It is an admitted case that Unitac Builders and Developers and Sane Ventures LLP headed by Santhosh Eappen entered into two agreements, Exhibit P1 and P2 not with the UAE Red Crescent or the State Government or LIFE Mission, but with an entirely independent body, the Consular General of United Arab Emirates, Trivandrum, Kerala, having its main office at MC Tower, Manacaud, TC 72/1227 (1‑4), Muttathara, Near Fort Police Station, Trivandrum – 695009, by which they have received a considerable amount to the extent of forty percent of the ten million UAE dirhams from the UAE Red Crescent routed through the UAE Consulate, wherein neither the State Government nor the LIFE Mission nor the UAE Red Crescent is a party., One of the counterpoints raised by the LIFE Mission is that they have not received any foreign contribution from a foreign source. If at all any contribution was received by Unitac Builders and Developers and Sane Ventures LLP, no criminal liability can be fastened against the LIFE Mission or the State Government. They are not parties to the agreements entered into by the UAE Consulate General, Trivandrum, Kerala (wrongly pleaded as UAE Red Crescent) with Unitac Builders and Developers and Sane Ventures LLP (Exhibit P1 and P2). Further, it was asserted that they would stand excluded by virtue of operation of Explanation 3 to Section 2(1)(h) of the FCR Act. The expressions “foreign contribution” and “foreign source” are defined in Section 2(1)(h) and (j) respectively, which are extracted below for reference: (h) foreign contribution means the donation, delivery or transfer made by any foreign source, (i) of any article, not being an article given to a person as a gift for his personal use, if the market value, in India, of such article, on the date of such gift, is not more than such sum as may be specified from time to time by the Central Government by the rules made by it in this behalf; (ii) of any currency, whether Indian or foreign; (iii) of any security as defined in clause (h) of section 2 of the Securities Contracts (Regulation) Act, 1956 and includes any foreign security as defined in clause (o) of section 2 of the Foreign Exchange Management Act, 1999. Explanation 1 – A donation, delivery or transfer of any article, currency or foreign security referred to in this clause by any person who has received it from any foreign source, either directly or through one or more persons, shall also be deemed to be foreign contribution within the meaning of this clause. Explanation 2 – The interest accrued on the foreign contribution deposited in any bank referred to in sub‑section (1) of section 17 or any other income derived from the foreign contribution or interest thereon shall also be deemed to be foreign contribution within the meaning of this clause. Explanation 3 – Any amount received by any person from any foreign source in India by way of fee (including fees charged by an educational institution in India from a foreign student) or towards cost in lieu of goods or services rendered by such person in the ordinary course of his business, trade or commerce whether within India or outside India or any contribution received from an agent of a foreign source towards such fee or cost shall be excluded from the definition of foreign contribution within the meaning of this clause., It is an admitted case that initially a MoU was signed by LIFE Mission with the UAE Red Crescent. The various clauses enumerated in the MoU would itself show that the UAE Red Crescent agreed to provide financial help to the tune of ten million dirhams, out of which seven million dirhams will be allocated to build homes for the victims of the recent Kerala flood and three million dirhams will be allocated for the construction of a health centre. Prima facie, it appears that it is the financial aid and contribution extended by the Red Crescent, a voluntary humanitarian organization affiliated to the International Federation of Red Cross, to the State Government for their project – Livelihood, Inclusion and Financial Empowerment Mission (LIFE Mission). The MoU was entered into between the State Government/LIFE Mission on one side and the UAE Red Crescent on the other side. There may not be any dispute with respect to the status of the UAE Red Crescent and it would squarely fall under the purview of a foreign source as defined under Section 2(1)(j) of the FCR Act. The donation, delivery or transfer made by any such foreign source either by way of any currency whether Indian or foreign or article or any security, donation would come under the purview of the expression “foreign contribution” as defined under Section 2(1)(h) of the Act. It is true that the State Government or the LIFE Mission did not receive any foreign currency, security, donation, delivery or transfer of any article so as to extend criminal liability as against them by virtue of the definition under Section 2(1)(h) and (j) of the Act. But quite interestingly, as per the MoU entered into, what is agreed by the Red Crescent is to provide foreign contribution/aid for the construction of dwelling units and a health centre for the victims of the recent Kerala flood and the MoU even according to LIFE Mission was entered into by the State Government with the Red Crescent. This would show it is the foreign contribution given to the State Government for the purpose of dwelling units and health centre to the victims of the recent Kerala flood, but Exhibit P1 and P2 agreements were entered into by two other persons, the Consular General of United Arab Emirates, Trivandrum, Kerala in one part and two other third parties viz. Unitac Builders and Developers and Sane Ventures LLP, that too, without the juncture of the UAE Red Crescent or the State Government or the LIFE Mission, who are the parties to the MoU. Neither the UAE Red Crescent nor the State Government nor the LIFE Mission is a party to the two subsequent agreements, Exhibit P1 and Exhibit P2, entered into for the implementation of the MoU signed by LIFE Mission (State Government) with the UAE Red Crescent., Article (2) of the MoU says that both parties partnership: The Memorandum of Understanding aims to establish a framework to provide the second party aid amounting to ten million dirhams of which seven million dirhams will be allocated to build homes for the victims of recent Kerala flood and three million dirhams will be allocated for the construction of a health centre operated by the second party in accordance with the agreements, plans and detailed designs which shall be made and signed subsequently between the two parties.
id_14	1	Accordingly, it is agreed to form a Memorandum of Understanding which would provide a general framework governing the relationship of the two parties through the exchange of skills and cooperation in projects and other types of mutual cooperation., Both parties' partnership depends on the principle of a project after a project, which means each party has the right to suggest a project to be executed jointly. Each party has the full and absolute freedom to approve or reject the project according to its own discretion and its rating for the suggested project's significance and worthiness., An agreement shall be made for each project on which both parties agree to execute. This agreement shall include all conditions, obligations and responsibilities of each party, including but not limited to the following: the project objectives, the project term, resources required to execute the project including the budget, the project financing plan, the project management and its procedures, the practical plan, strategy of reporting, controlling and assessing, both parties' communication plan, and the responsibilities, obligations, duties and contributions assumed to be fulfilled by each party., Indisputably no subsequent agreements as envisaged under Article 2 of the Memorandum of Understanding were entered into by the two parties, LIFE Mission (State Government) and UAE Red Crescent, without which the contribution of Ten Million UAE dirhams under the Memorandum of Understanding was diverted to the hands of third persons, two companies, Unitac Builders and Developers and Sane Ventures LLP headed by Mr. Santhosh Eappen. Exts. P1 and P2 agreements were entered into by these two companies with the Consular General of UAE, Trivandrum, Kerala, without the involvement of the UAE Red Crescent, the fund provider, the State Government or the LIFE Mission, thereby diverting the foreign contribution intended for the benefit of flood victims of Kerala., The agreements were for the construction of a building on property owned by the State Government. The funds were diverted, audit by the Comptroller and Auditor General was avoided, and kickbacks and gratification were obtained., The Chief Executive Officer of LIFE Mission accepted and offered all sorts of help to implement the said agreements. Mr. Santhosh Eappen admitted the involvement of kickbacks and gratification and explained his version of the circumstances under which he entered into Exts. P1 and P2 agreements in furtherance of the Memorandum of Understanding. His admissions show his alleged role in the commission of the offence; he cannot escape liability as he was aware of the Memorandum of Understanding and the understanding arrived at by the UAE Red Crescent with the LIFE Mission., The admission made by him that he became a conduit, a medium in the hands of Swapna Suresh, and handed over pecuniary rewards at her instance to various officials would itself prima facie satisfy his alleged role in the commission of the offence. His admission reveals payment of kickbacks and gratification by way of money and iPhones to various officials of the UAE Consulate General, Swapna Suresh and other officials for awarding the work under Exts. P1 and P2 agreements., The CEO of LIFE Mission, by its letter dated 26.08.2019 addressed to the General Secretary of UAE Red Crescent, accepted the plan prepared for building construction by Unitac Energy Solutions India Pvt. Ltd and permitted the construction work, that too without having an agreement executed as envisaged under Article 2 of the Memorandum of Understanding and in total violation of legal formalities required for awarding a Government work., It is alleged that on receipt of Rs.14,50,00,000 (Rupees fourteen crores fifty lakhs), Mr. Santhosh Eappen was asked by the Consular General of UAE, Kerala, through Swapna Suresh, to give an amount of AED 2 million (equivalent to Rs.3,80,00,000) to Mr. Khalidh, the economic head of the UAE Consulate. Accordingly, Rs.3,80,00,000 was converted into US dollars and given to him. A further amount of Rs.68,00,000 was transferred to a company owned by Mr. Sandeep Nair at the instance of Swapna Suresh, who also purchased five iPhones as gratification for awarding the work in his favour under Exts. P1 and P2., The foreign contribution provided by the fund provider UAE Red Crescent was effectively diverted by manipulating Exts. P1 and P2 agreements and inducting strangers without the involvement of the fund provider and the beneficiary, to obtain kickbacks with the active connivance and help of IAS officials connected with the project, including the CEO of LIFE Mission, who facilitated and offered all sorts of help., The learned Senior Counsel Sri K.V. Viswanathan relied on Article 6 of the Memorandum of Understanding to sanctify execution of Exts. P1 and P2 agreements without the involvement of the State Government or the LIFE Mission and to evade liability for the diversion of funds to the third parties Unitac Builders and Developers and Sane Ventures LLP. However, no separate agreement was entered into by either party in consonance with Article 6, and therefore they cannot seek protection under that clause. The clause itself reveals a conspiracy to induct strangers into the transaction and divert the foreign contribution., The requirement of a preliminary enquiry before registration of a crime under Section 154 of the Code of Criminal Procedure arises only when the information received does not disclose a cognizable offence. When the information discloses commission of a cognizable offence, there is no need for a preliminary enquiry to register a crime under Section 154. This principle was affirmed by the constitutional bench of the Supreme Court in Lalita Kumari v. Government of Uttar Pradesh and others (2014) 2 SCC 1., A constitutional bench of the Supreme Court in Subramanian Swamy v. Director, Central Bureau of Investigation and another (2014) 8 SCC 682 recognized the legal status of the Central Bureau of Investigation, a central agency, and the validity of its creation based on the Delhi Special Police Establishment Act, 1946; therefore, the challenge to its constitutional validity does not arise., There is no compliance with the mandate under Article 299 of the Constitution in the Memorandum of Understanding. It was submitted that no such requirement is necessary because there is no concluded contract under Section 10 of the Contract Act, relying on Monnet Ispat and Energy Limited v. Union of India and Others (2012) 11 SCC 1 and People for Economical and Effective Medicare v. Union Government of India (2002) AP 282. However, the substance of the document includes an offer made by UAE Red Crescent and its acceptance by LIFE Mission, which makes it a concluded contract with respect to foreign contribution and its acceptance. Consequently, it must comply with the constitutional requirement under Article 299, which mandates that government contracts be expressed as being made by the President or the Governor, executed by a competent person in the prescribed manner, and that failure to comply renders the government not bound by the contract., There is no plausible or acceptable reason for non‑execution of subsequent agreements as envisaged in the Memorandum of Understanding; instead, two agreements were induced with third persons, Unitac Builders and Developers and Sane Ventures LLP, with the UAE Consulate General, Trivandrum, Kerala, to divert the funds and avoid audit by the Comptroller and Auditor General. The Ext. P6 notification requires compulsory audit of the account, and when that requirement is defeated, exemption under the notification cannot be claimed., The assertion that the amount received by Unitac Builders and Developers and Sane Ventures LLP from UAE Red Crescent is for services rendered in the ordinary course of business and therefore excluded by Explanation 3 to Section 2(1)(h) of the Foreign Contribution (Regulation) Act cannot be accepted. Explanation 3 applies only to genuine transactions in the ordinary course of business, not to a device used to divert foreign contribution to a third person without the involvement of the intended beneficiary., The expression ‘ordinary course of business’ cannot be extended to a transaction used as a device to divert foreign contribution. The conspiracy to divert the foreign contribution to Unitac Builders and Developers and Sane Ventures LLP is evident from the fact that no agreement was entered into between the UAE Red Crescent and the State Government in furtherance of the Memorandum of Understanding., Even if it is assumed that the transaction with the Red Crescent would fall under Section 3(2)(b) of the Foreign Contribution (Regulation) Act, 2010, that provision covers only the deliverer of foreign currency and not the recipient; therefore, the FIR cannot be quashed. This position is supported by the decisions in State of Karnataka v. L. Muniswamy (1977) 2 SCC 699, State of Karnataka v. M. Devendrappa and another (2002) 3 SCC 89, and R.P. Kapur v. State of Punjab (1960) 3 SCR 388., The learned Senior Counsel also submitted that when a law imposes serious penal consequences, extra care must be taken not to extend its language to persons the legislature did not intend to cover, citing Niranjan Singh K.S. Punjabi v. Jitendra Bhimraj Bijaya and others (1990) 4 SCC 76 and Usman Bhai Dawoodbhai Memon and others v. State of Gujarat (1998) 2 SCC 271. However, the question of interpretation of a penal statute cannot be applied at the initial stage of investigation by conducting a roving enquiry; it may be a ground of attack or defence at the final stage after completion of investigation., The FIR and the investigation initiated by the Central Bureau of Investigation have been attacked as being based on extraneous considerations with the ultimate aim of gaining political mileage and being used as a weapon against the State Government. LIFE Mission is a comprehensive development project formulated by the State Government with a State Level Mission, District Level Mission and Local Self‑Government Mission. The Chairman of the State Level Mission is the Chief Minister; the Ministers of Local Self‑Government are Co‑Chairmen; the Ministers of Finance, Housing, Social Justice, Electricity, Water Resources, Labour and Scheduled Castes and Scheduled Tribes Development and Fisheries are Vice‑Chairmen. The Leader of Opposition in the State Legislative Assembly is a special invitee to the State Level Mission, the Chief Secretary is a member, and the Secretary for Local Self‑Government is its Secretary., It is an admitted case that LIFE Mission is a project launched by the State Government based on a policy decision. It is therefore the duty of civil servants, the non‑political executive, to implement it by due process of law. The facts reveal a high‑profile intellectual fraud played in furtherance of the Memorandum of Understanding to avoid audit by the Comptroller and Auditor General and to obtain kickbacks and gratifications. The Constitution divides powers among the legislature, the executive and the judiciary. A three‑Judge Bench of the Supreme Court in Dr Ashwani Kumar v. Union of India and another (2019) 12 SCALE 125 observed that these divisions are boundaries fixed by the Constitution to check transgression by any one of the three branches., The Constitution of the legislature and its functions were also considered by the Apex Court, noting that the legislature, as an institution, possesses qualities of a democratic institution in terms of composition, diversity and accountability, and uses procedures to bring a plenitude of representations and resources., The executive, in its broad definition, includes the political executive (the Chief Minister and the Ministers) and the non‑political executive (civil service or bureaucracy). The job of the non‑political executive is to ensure proper implementation of laws passed by the legislature and to check and balance governance in accordance with the law in force. IAS officials, as permanent executive, assist the political executive to formulate and execute policy decisions and must scrutinize legal validity in light of present law and constitutional requirements. Their failure to address mischief cannot, by itself, extend criminal liability to the political executive unless they obtained personal benefit with knowledge of the breach., In the instant case, all mischief was done at the time of implementation of part of the LIFE Mission project by permanent members attached to it—the IAS officers with Swapna Suresh, Sandeep Nair, Sarith, Santhosh Eappen and their allies. The mere fact that policy decisions were taken by the Chief Minister, the Ministers or the Legislature may not be sufficient to extend criminal liability against them for the wrongdoing of the non‑political executive. Hence it is not permissible to extend criminal liability on the political executive merely because they have taken a policy decision and pro‑active steps in its implementation. With that observation, the present criminal miscellaneous case and the writ petition are dismissed. The impleading petitions are also dismissed.
id_1400	0	Writ Petition(s) (Civil) No. 1416 of 2020 (Interim Application No. 87814 of 2021 – Application for Stay) (Interim Application No. 99128 of 2021 – Application for Stay) (Interim Application No. 100487 of 2021 – Application for appropriate Orders/Directions) (Interim Application No. 89221 of 2021 – Application for Stay). Date: 18-08-2021. These petitions were called on for hearing today. For the petitioner: petitioner in person Mr. Chinmoy Pradip Sharma, Senior Advocate Mr. Mohit Paul, Advocate on Record Ms. Sunaina Phul, Advocate Mr. Irfan Haseeb, Advocate. For the respondent: Ms. Aishwarya Bhati, Learned Additional Solicitor General Ms. Archana Pathak Dave, Advocate Ms. Ruchi Kohli, Advocate Mr. Chinmayee Chandra, Advocate Mr. Arvind Kumar Sharma, Advocate on Record., Upon hearing the counsel, the Supreme Court of India made the following: In Writ Petition (Civil) No. 1416 of 2020 the counter affidavit was filed on 17-08-2021. Rejoinder to be filed within a week. The matter is listed for hearing on 08 September 2021., Interim Application No. 87814 of 2021: Learned Additional Solicitor General submits that an interim measure should not interfere with a policy decision. She states that the three modes of recruitment of officers in the Indian Army are through the National Defence Academy, the Indian Military Academy and the Officers Training Academy. The National Defence Academy and the Indian Military Academy are modes of direct entry through the Union Public Service Commission. Through the Officers Training Academy, women are commissioned along with men, both through Union Public Service Commission and non-Union Public Service Commission modes of entry. They are granted Short Service Commission, both men and women, and subsequently are considered for grant of Permanent Commission. It is submitted that through various developments Short Service Commission women officers in ten streams are appointed subject to certain conditions laid down in the judgment of this Court in Secretary, Ministry of Defence v. Babita Puniya (2020 (7) SCC 469). The learned Additional Solicitor General is asked whether in the ten streams there is recruitment of male officers from the National Defence Academy route. She states that she will obtain requisite instructions and file a better affidavit. The Court expected a more considered affidavit on policy decision based on gender equality, keeping in mind the observations of this Court in Babita Puniya’s case. In view of the impending examination and after hearing counsel for the parties, the Court considers it appropriate to issue an interim direction permitting the women candidates to take part in the examination scheduled for 05 September 2021, subject to further orders of this Court., The Union Public Service Commission, Respondent No. 4, has chosen not to appear despite service. The Union Public Service Commission is directed to issue the necessary corrigendum in view of the interim orders passed today and to give it wide publicity so that the intent of the order is translated into benefit at the ground level. A copy is to be prepared today and transmitted to the Union Public Service Commission forthwith. The matter is listed on 08 September 2021., The counter affidavit filed by the respondent broadly suggests that, as far as Sainik Schools are concerned, the process of admitting girls has already started and will be further expanded. Regarding the Rashtriya Indian Military College, it is stated that it is a 99-year-old institution which will complete 100 years next year. The question is whether it will complete its 100 years with gender neutrality or not. Since this has a direct relation with admission in National Defence Academy programmes, the matter is kept for consideration on 08 September 2021 and is listed on the same date., Interim Application No. 99128 of 2021: The Court is not inclined to stay the advertisement because the larger issue is yet to be determined. Interim Application No. 99128 of 2021 stands dismissed. Interim Application No. 89221 of 2021: The Court is not inclined to interfere; Interim Application No. 89221 of 2021 stands dismissed accordingly. Interim Application No. 100487 of 2021 is listed along with the main matter on 08 September 2021.
id_1403	0	Criminal Appeal (A)(D) No. 12/2020, Criminal Miscellaneous No. 771/2020 in Criminal Reference (L) No. 3/2020. Raghubir Singh, Appellant/Petitioner, through Mr. Anil Gupta, Advocate, versus Union Territory of Jammu and Kashmir, Respondent, through Mr. Aseem Sawhney, Additional Advocate General., This is an application seeking suspension of sentence and grant of bail to the applicant/appellant on the ground that the applicant/appellant has spent more than thirteen years in jail., Nominal rolls were called from the Superintendent of the jail concerned, which reflects that the applicant/appellant has spent more than thirteen years in jail. It was not out of place to mention here that the appeal against the order of conviction and sentence dated 23 July 2020 was filed in the Supreme Court of India on 6 August 2020., The issue with regard to suspension of sentence and grant of bail on account of delay in disposal of the criminal appeal has been considered by a coordinate bench of the Supreme Court of India in Rakesh Kumar versus State of Jammu and Kashmir and others, Criminal Appeal No. 12/2018 decided on 9 July 2020. The bench in paragraphs five, six and seven held thus:, In Akhtari Bi case the Supreme Court of India held that speedy justice was a fundamental right flowing from Article 21 of the Constitution. It was held that a right accrued in favour of the accused to apply for bail in a case where there was delay in the disposal of the trial and appeals in criminal cases. It was held that if an appeal was not disposed of within a period of five years for no fault of the appellant, such convicts may be released on bail on conditions as may be deemed fit and proper by the Court. In computing the period of five years, the delay for any period required in preparation of the record and the delay attributable to the convict or his counsel can be deducted. It was further clarified that there may be cases where even after the lapse of five years the convicts may, under the special circumstances of the case, be held not entitled to bail pending the appeals filed by them., On perusal of the judgments (supra) it can be seen that while considering the prayer for bail on account of long pendency of the appeal before the High Court, the principles as laid in Akhtari Bi have to be followed., In the present case five years have not elapsed. The appeal was preferred in the year 2018 and therefore the five‑year period mentioned in the judgment (supra) has not been completed. Even assuming the said period was over, the Court could not have mechanically granted bail without considering whether the delay in the disposal of the appeal was attributable to the appellant. Considerations as mentioned in the case of Akhtari Bi, for refusal of bail beyond five years, also indicate that grant of bail at the expiry of five‑year pendency does not follow as a matter of routine. The nature, gravity and seriousness of the offence would also have to be seen. In that view of the matter, the case of the appellant cannot succeed for grant of bail on the basis of the judgments cited by learned counsel for the appellant; the same is therefore rejected., Considering the fact that the appeal has been preferred against the judgment of conviction and sentence in the year 2020, following the ratio of the judgment in Akhtari Bi versus State of Madhya Pradesh, AIR 2001 Supreme Court 1528 and the view expressed by the coordinate bench of the Supreme Court of India of which one of us (Justice Thakur) was a member, we feel that since five years have not elapsed from the date of filing of the present appeal and the matter is already listed in the final hearing column, no ground is made out for suspending the sentence and granting bail in the present case., The application is accordingly dismissed.
id_1406	0	A.K. Jayasankaran Nambiar, Judge. The facts in brief: This appeal is preferred by the fifth respondent in Writ Petition (Civil) No. 26918 of 2022, aggrieved by the judgment dated 17 November 2022 of the learned Single Judge in the writ petition. The writ petitioner Doctor Joseph Skariah is an Assistant Professor in the Department of Malayalam at Saint Berchman's College, Changanassery. In the writ petition, he impugned Exhibit P4 notification of Kannur University that published the provisional rank list of candidates for selection to the post of Associate Professor (open category) in the Department of Malayalam. In that rank list, he was ranked second after the appellant herein, the fifth respondent, who was ranked first. It is significant that the University that issued the notification was not made a party; only the Registrar, who was the signatory to Exhibit P2 notification issued on behalf of the University, was arrayed as the sixth respondent., The petitioner contended that the appellant was not qualified to hold the post of Associate Professor because she did not have the prescribed minimum experience of eight years in teaching and/or research in an academic or research position equivalent to that of Assistant Professor in a university, college or accredited research institution/industry; she was given disproportionate marks by the Selection Committee towards research score, research guidance, teaching experience and publications; and she was given more marks than the petitioner in the interview, in violation of procedures and with a view to favour her., Counter affidavits were filed on behalf of the fifth respondent/appellant and the Registrar of the University, refuting the contentions in the writ petition. Reply affidavits were also filed by the writ petitioner. Thereafter, the matter was heard by a learned Single Judge., The learned Single Judge considered only the issue of whether the experience possessed by the appellant could be treated as teaching/research experience for the purposes of deciding her eligibility for the post. The findings, contained in paragraphs 46 to 110 of the impugned judgment, hold that the experience gained by the appellant while on deputation under the Faculty Development Programme at Kannur University and as Director of Student Services at the University cannot be treated as teaching/research experience for the purposes of Regulation 4.1.II of the University Grants Commission Regulations, 2018. Regarding the objection raised by the appellant about the maintainability of the writ petition, the learned Judge found that the objection had been raised only by the appellant and not by the Registrar or any other respondents, and that the Registrar had filed pleadings before the High Court of Kerala without raising such an objection, so the absence of the University as a party was not fatal to the writ petitioner. These findings of the learned Single Judge are impugned in this writ appeal., We have heard Sri Renjith Thampan, the learned senior counsel instructed by Advocate Sri K.S. Arun Kumar on behalf of the appellant; Sri George Poonthottam, the learned senior counsel assisted by Advocate Sri Santharam P. on behalf of the first respondent/writ petitioner; Sri P. Ravindran, the learned senior counsel assisted by Advocate I.V. Pramod on behalf of the sixth respondent Registrar; Sri I.V. Pramod, the learned Standing Counsel for the Vice Chancellor and Selection Committee of Kannur University; Sri S. Gopakumaran Nair, the learned senior counsel for the Chancellor of Universities in Kerala; Sri T.B. Hood, the learned senior Government Pleader for the fourth respondent; and Sri S. Krishnamoorthy, the learned counsel for the seventh respondent University Grants Commission., The submissions of Sri Renjith Thampan, the learned senior counsel for the appellant, are as follows: The writ petition was bad for non‑joinder of necessary parties. Kannur University, which issued Exhibit P2 notification and caused the Selection Committee to convene, was never made a party in the writ petition. The University was a necessary party because the learned Single Judge issued directions to it for compliance. No decision regarding the legality of the University's actions could have been taken without the University being on the party array. Reliance is placed on Chief Conservator of Forests, Government of A.P. v. Collector and Others (2003) 3 Supreme Court Cases 472; Jogendrasinhji Vijaysinghji v. State of Gujarat and Others (2015) 9 Supreme Court Cases 1; Poonam v. State of Uttar Pradesh and Others (2016) 2 Supreme Court Cases 779; Vidur Impex and Traders Private Limited v. Tosh Apartments Private Limited (2012) 8 Supreme Court Cases 384; and Kanaklata Das & Others v. Naba Kumar Das & Others [JT 2018 (1) SC 576] to contend that the writ petition was bad for non‑joinder of necessary parties., The teaching/research experience of the appellant, relevant for her appointment as an Associate Professor, is as follows: 1) Assistant Professor, Sree Vivekananda College, Kunnamkulam, from 14 March 2012 to 28 July 2015 – three years, four months and fifteen days; 2) Deputation for Faculty Development Programme at Kannur University (with active service and service lien at Sree Vivekananda College) from 29 July 2015 to 8 February 2018 – two years, six months and eleven days; 3) Assistant Professor, Sree Kerala Varma College, Thrissur, from 9 February 2018 to 6 August 2019 – one year, five months and twenty‑nine days; 4) Director of Student Services, on deputation to Kannur University, from 7 August 2019 to 15 June 2021 – one year, ten months and nine days; 5) Assistant Professor, Sree Kerala Varma College, Thrissur, from 16 June 2021 to 6 July 2021 – twenty‑one days; 6) Assistant Director, Kerala Bhasha Institute, Thiruvananthapuram, from 7 July 2021 to 21 October 2021 – three months and fifteen days. Additionally, she served as Lecturer in Malayalam on ad‑hoc/temporary/contract basis at the University Teacher Education Centre, Kannur University, from 27 June 2001 to 25 February 2002 – eight months, and from 5 June 2002 to 28 February 2003 – eight months and twenty‑four days., There is no dispute that the periods of service as Assistant Professor in Sree Vivekananda College and Sree Kerala Varma College count towards teaching experience. While on deputation under the Faculty Development Programme at Kannur University, the appellant retained active service and service lien at Sree Vivekananda College. The Tenth Plan Guidelines for Faculty Improvement Programme and the Guidelines for the Special Scheme of Faculty Development Programme for Colleges (Twelfth Plan, 2012‑17), both notified by the University Grants Commission, introduced these programmes to enhance the academic and intellectual environment by providing faculty members opportunities to pursue research and participate in seminars, conferences and workshops. Only twenty percent of permanent teachers are eligible for teacher fellowships at any time. The programme prescribes a detailed procedure for availing benefits, including the appointment of substitute teachers and a condition that a participant who does not complete the programme must refund the costs incurred by the University Grants Commission for salary and allowances to the substitute teacher., Reliance is placed on Exhibit R5 (j) and R5 (k) Government Orders to show that the appellant was sanctioned by the Government to undergo a Ph.D. course from 29 July 2015 to 8 February 2018 under the Faculty Development Programme of the University Grants Commission, upon executing a bond. Consequently, the deputation was a sanctioned research programme undertaken with the employer's permission to augment the appellant’s pedagogic skills, and the period should be treated as research experience simultaneous with teaching experience for the purposes of Regulation 3.11 of the University Grants Commission Regulations, 2018., The State Government has recognised the period spent on sponsored study as duty, as evidenced by Exhibit R5 (e) and R5 (f) Government Orders sanctioning deputations for Ph.D. courses under the Faculty Improvement Programme. Therefore, a different stance cannot be taken in the appellant’s case without violating the principle of non‑discrimination under Article 14 read with Article 16 of the Constitution of India. Reliance is placed on Saheeda P. v. State of Kerala and Others [2018 SCC Online Ker 10110]; Dr Nirmala Mittal v. State of Haryana and Others [2007 SCC Online P&H 1502]; State of Haryana v. Smt Nirmala Mittal [2008 SCC Online P&H 1933]; and Varghese v. State of Kerala [1989 KHC 419], which treat Faculty Development Programmes as valid research programmes providing research experience., Regarding the experience gained while on deputation as Director of Student Services and Programme Coordinator of the National Service Scheme at Kannur University, the learned Single Judge relied solely on the appellant’s counter‑affidavit that the Director’s activities were not teaching activities in the strict sense. References were made to the Kothari Commission report reproduced in a judgment of the High Court of Kerala in Writ Petition (Civil) No. 15447 of 2007 [Exhibit R5 (v)], extracts from the All India Survey on Higher Education (2010‑11) published by the Ministry of Human Resource Development, Government of India [Exhibit R5 (w)], and the Draft National Curriculum Framework and Guidelines for Fostering Social Responsibility and Community Engagement in Higher Educational Institutions, prepared by the University Grants Commission [Exhibit R5 (z)]. These sources indicate that the University Grants Commission favours new learning approaches such as dialogical, co‑learning, participatory and problem‑oriented methods. The National Educational Policy of 1992 (Annexure‑A) recognises outstanding contributions to the National Service Scheme as extension work equivalent to research work for incentivising teachers. Since the appellant was appointed Programme Coordinator with responsibilities for guiding students under the National Service Scheme, her experience as Director of Student Services should be regarded as teaching/research experience., Reliance is placed on P. S. Ramamohana Rao v. A.P. Agricultural University and Another [1997 KHC 1099] and University of Kerala and Others v. Dr K.K. Venu and Others [2014 (3) KHC 149]. It is settled law that the High Court of Kerala will not ordinarily interfere with decisions of academic bodies. The University relied on statutory provisions underlying Exhibit P2 notification and found the appellant satisfied the eligibility conditions for the post of Associate Professor in Malayalam. Whether a particular experience qualifies as teaching/research experience for the purposes of the statutory provisions or the University Grants Commission Regulations, 2018, is for the University to decide based on its understanding of the prevailing concept of pedagogy recognised and regulated by the University Grants Commission., The arguments of Sri George Poonthottam, the learned senior counsel for the first respondent/writ petitioner, are as follows: The writ petition was not bad for non‑joinder of parties because the Registrar was made a party and Section 14 of the Kannur University Act, 1996 states that suits by or against the University shall be instituted by or against the Registrar. The experience gained by the appellant while on deputation under the Faculty Development Programme or as Director of Student Services could not be treated as teaching experience because she did not engage in teaching students during that tenure. The appellant availed leave to pursue her Ph.D. under the Faculty Development Programme and therefore did not qualify for the benefit under Regulation 3.11 of the University Grants Commission Regulations, 2018, which is available to teaching faculty who pursue Ph.D. programmes without availing leave. She did not engage in any classroom teaching while on deputation as Director of Student Services/Programme Coordinator of the National Service Scheme, so that experience cannot count towards teaching experience for the selection. The experience as Lecturer at the Teacher Education Centre on an ad‑hoc/contract basis cannot be reckoned towards teaching experience because it was rendered many years ago, was not regular, and was as Lecturer, not Assistant Professor. The eight years of teaching experience required for the post must be gained after acquiring the Ph.D. qualification; the appellant obtained her Ph.D. only in 2019 and therefore could not have eight years of teaching experience as a Ph.D. holder at the time of applying. Reliance is placed on Basheer A. (Doctor) v. Dr Saiful Islam A. and Others [2014 (4) KHC 379]., The submissions of Sri P. Ravindran, the learned senior counsel for the Registrar of the University; Sri T.B. Hood, the learned Government Pleader; and Sri Krishnamoorthy, the learned Standing Counsel for the University Grants Commission, were based on the counter‑affidavits filed by the respective parties in the writ petition., The issues that arise for our consideration are: (1) Whether the writ petition was bad for non‑joinder of parties? (2) Can the research period undertaken by the appellant under the Faculty Development Programme of Kannur University count towards research experience for the purposes of Exhibit P2 notification read with the University Grants Commission Regulations of 2018? (3) Can the period spent by the appellant while on deputation as Director of Student Services of Kannur University be counted towards the teaching experience required for appointment as an Associate Professor pursuant to Exhibit P2 notification? (4) Can the period spent by the appellant as Lecturer at the Teacher Education Centre on an ad‑hoc/contract basis be counted towards the teaching experience as Assistant Professor required for appointment as an Associate Professor pursuant to Exhibit P2 notification? (5) Must the eight‑year teaching experience stipulated for the post of Associate Professor in Exhibit P2 notification be gained after the candidate acquires the Ph.D. qualification?, We first address the objection raised by the appellant regarding non‑joinder of necessary parties. In adversarial litigation, the rule on joinder of parties ensures that the dispute is not adjudicated in the absence of a party whose presence before the court is essential for a complete resolution. The law is well settled, as seen in Mumbai International Airport (P) Ltd v. Regency Convention Centre and Hotels (P) Ltd (2010) 7 Supreme Court Cases 417, where the Supreme Court, referring to Order 1 Rule 10(2) of the Code of Civil Procedure, observed that a plaintiff may choose the persons against whom he wishes to litigate but the court may, at any stage, add as a party any person who ought to have been joined or whose presence is necessary for effective adjudication., A necessary party is one whose absence would prevent the court from passing an effective decree; if such a party is not impleaded, the suit is liable to be dismissed. A proper party, though not necessary, is one whose presence would enable the court to adjudicate all matters in dispute effectively., In the present case, the main prayer in the writ petition was to quash the notification issued by Kannur University, yet the University itself was not made a party. The Registrar was impleaded as the sixth respondent because Section 14 of the Kannur University Act prescribes that suits against the University be instituted in the name of the Registrar. However, Section 3 of the same Act declares the University to be an independent body with perpetual succession that can sue and be sued in its own name. The Supreme Court in Chief Conservator of Forests, Government of A.P. observed that the requirement for the University to be sued in its own name is a substantive, not merely procedural, requirement. In academic matters, the decisions of the University must be given due weight, and the lis could not be effectively adjudicated without ascertaining the University’s justification for its decision., We cannot agree with the learned Single Judge’s finding that the objection was not worthy of consideration because the Registrar or other respondents did not raise it. Nor can we accept the contention that the strict rules of pleading and impleadment apply only to civil courts and not to constitutional courts. In view of the settled law and the specific provisions of Order 1 Rule 10 of the Code of Civil Procedure, which are not alien to writ jurisdiction, we find that the writ petition was indeed bad for non‑joinder of necessary parties., While our finding on this issue would suffice to allow this writ appeal by dismissing the writ petition, the learned Single Judge also entered findings against the appellant concerning her academic qualifications and experience. Therefore, we must address the other issues raised in this appeal., In the impugned judgment, the learned Single Judge found that the appellant could not count the period spent undergoing the Faculty Development Programme of Kannur University towards research experience for appointment as an Associate Professor under Exhibit P2 notification read with the University Grants Commission Regulations, 2018. He also held that the period spent by the appellant while on deputation as Director of Student Services could not be counted towards the teaching experience required for the same appointment., To examine the legality of those findings, we first consider the extent to which research and community‑outreach programmes are recognised as integral aspects of pedagogy under the Indian model of higher education regulated by the University Grants Commission., Mark Van Doren famously remarked, \The art of teaching is the art of assisting discovery.\ His words resonate with the Humboldtian model of higher education, which emphasizes the close integration of teaching and research. Under this model, professors are responsible for imparting knowledge and engaging in original research. The model advocates academic freedom, a well‑rounded education, critical thinking, intellectual curiosity and interdisciplinary understanding. Although some countries have embraced a neoliberal model characterised by marketisation and business‑like practices, aspects of the Humboldtian model have found favour with the University Grants Commission in India, as the standards laid down by the Commission closely relate to the Humboldtian tradition., The University Grants Commission Regulations, 2018, adopted by the State Government and applicable to Kannur University, contain several provisions encouraging research among the teaching community. Regulation 17.0.I of the Code of Professional Ethics mandates continuous professional growth through study and research. Regulations 8 and 9, dealing with Study Leave and Research Promotion Grant respectively, further support this. Regulation 8.2 provides for study leave solely to enable a teacher to undertake research projects or pursue doctoral research while continuing as a teacher. The teacher may be appointed a substitute during leave, and upon completion must serve the institution for three continuous years., These provisions reveal a scheme of promotion of research among faculty members, with the University/College seeking to benefit from the continued service of the teacher. The Faculty Improvement Scheme and the Faculty Development Scheme, both notified by the University Grants Commission, outline the procedure for selecting up to twenty percent of regular faculty for research opportunities, effectively complementing each other., Regulation 3.11 reads: \The time taken by candidates to acquire Master of Philosophy and/or Doctor of Philosophy degree shall not be considered as teaching/research experience to be claimed for appointment to teaching positions. Further, the period of active service spent on pursuing a research degree simultaneously with teaching assignment without taking any kind of leave shall be counted as teaching experience for the purpose of direct recruitment/promotion. Regular faculty members up to twenty percent of the total faculty strength (excluding faculty on medical/maternity leave) shall be allowed by their respective institutions to take study leave for pursuing Doctor of Philosophy degree.\, The provision distinguishes between candidates (who are not currently teachers) and faculty members (who are already teachers). For candidates, the time taken to acquire a Ph.D. is excluded from teaching/research experience. For faculty members, the period spent pursuing a research degree simultaneously with teaching, without taking leave, counts towards teaching experience., Thus, the prohibition on counting the time taken for a Ph.D. in the computation of teaching/research experience applies only to candidates who are not employed as teachers at the time of application. Faculty members who are already teachers may have that period counted as teaching experience.
id_1406	1	Similarly, even those regular faculty members, up to 20% of the total faculty strength, who have availed study leave to pursue the Ph.D. programme under the Faculty Development Programme, will get the benefit of including the period spent on pursuing a research degree in the teaching/research experience stipulated for the teaching post that is notified for appointment., We are therefore of the view that the period spent by the appellant on pursuing her Ph.D. degree under the Faculty Development Programme cannot be excluded while reckoning her teaching/research experience in the post of Assistant Professor for appointment as an Associate Professor pursuant to Ext. P2 notification., As regards the period spent by the appellant while on deputation to the Kannur University as Director of Student Services/Project Coordinator of the National Service Scheme (NSS), we find that the learned Single Judge has essentially relied on the averments in the counter affidavit filed by the appellant in the writ petition, where she had averred that her job did not involve any teaching in the strict sense, to hold that the period spent on the said deputation cannot count towards teaching experience. In our view, the answer to the question as to whether or not the experience gained by a teacher, while on deputation to a non‑teaching post, qualifies as teaching experience must depend upon the nature of activities undertaken by the teacher in the post to which she is deputed and not merely by the classification as teaching or non‑teaching accorded to the post. It cannot also be determined solely on the basis of the averments in her affidavit where she has merely stated that there was no teaching in the strict sense., The scope of the phrase teaching experience can be determined only through an understanding of the true nature and scope of the word teaching or pedagogy itself. Changing conceptions of learning bring along corresponding changes in the conception of teaching. We have already alluded to the transformation in the models of higher education noticed globally, from the Humboldtian model to the Neo‑liberal model to an eclectic mix of both in more recent times. The model of higher education pursued in our country can be gleaned from a perusal of the University Grants Commission Regulations as well as the National Education Policy in vogue. In Ext. R5 (z) document, which is an extract from the National Curriculum Framework & Guidelines published by the University Grants Commission in February 2019, there is a chapter on Fostering Social Responsibility & Community Engagement in Higher Education Institutions in India where it is clearly stated that the document emerged from the University Grants Commission's long‑standing commitment to strengthen social responsibility and community engagement of Higher Education Institutions in India. It goes on to clarify that to achieve the objectives of socio‑economic development of New India, Higher Education Institutions can play an important role through active community engagement that will contribute to improvements in quality of both teaching and research in Higher Education Institutions in India. It calls for the development of institutional mechanisms to adopt a holistic and functional approach to community engagement, encompassing all the three functions of Higher Education Institutions teaching, research and service. It recommends that performance assessments of teachers, researchers and administrators in Higher Education Institutions should include review of their involvement and contributions to community engagement in teaching and research; that criteria of weightage to community engagement by teachers and researchers should be explicitly included in assessments for recruitment, regularisation and promotion., While exploring the option of adapting existing courses for community engagement, it is stated as follows: The purpose of teaching is to enable learning of students. However, the reality of the present system of teaching in most Higher Education Institutions is that students feel disempowered when taught only in the classroom‑style delivery of content. Despite advancement in teaching aids, infrastructure, updated curricula and pedagogies, students are unable to relate what they study in the classroom to the field realities in which they live and where they would work in future. Therefore, it is important that the classroom theory is linked to the realities of the local field areas. Thus, existing courses can be adapted, both in content and pedagogy, for community engagement to facilitate learning from the field. For instance, management curriculum may include aspects of micro‑financing in rural context; chemistry syllabus can have a component of conducting water and soil analysis in surrounding field areas; political science syllabus could include mapping of local rural governance institutions and their functioning. Engaged teaching entails interaction of students with the curriculum and the world around the university. An engaged, outward, trans‑disciplinary stance will enable enriching the curriculum and promoting learning in multi‑modal pedagogies in addition to classroom and laboratories., Similarly, as early as in the National Education Policy of 1992 (produced as Annexure B along with I.A. No. 1/2023) it was envisaged that special incentives be evolved to encourage teachers' interest and participation, quite apart from incentives to encourage and sustain participation of students and youth in programmes under the National Service Scheme (NSS). It was also sensing the need for a responsible person such as a teacher to occupy the post of Programme Coordinator of NSS that the recruitment rule for the post prescribes that an aspirant to the post has to have teaching experience. Thus, merely because the post of Director of Student Services/Programme Coordinator of NSS is classified as a non‑teaching post in the recruitment rules of the University, it does not follow that the incumbent in the post does not gain teaching experience in the broader sense of the term., We cannot also ignore the submission of Sri. T. B. Hood, the learned Government Pleader appearing on behalf of the State that a finding that the experience of a teacher in the post of Director of Student Services/Programme Coordinator of NSS is not teaching experience would have disastrous consequences for the academic community in the State as no teacher would be willing to go on deputation to such posts for fear of losing out on career progression. We have to also remind ourselves, yet again, that when the University, which is an academic body, has chosen to treat the said experience of the teacher as teaching experience, then the Kerala High Court must defer to the wisdom of the academic body and refrain from interfering with the said decision unless it is shown to be clearly opposed to the statutory provisions in vogue. No material was produced by the writ petitioner to demonstrate an illegality in the decision of the University on this aspect. We are therefore of the view that the period spent by the appellant on deputation as Director of Student Services/Programme Coordinator of NSS was rightly reckoned as teaching experience by the University while determining her eligibility to apply for the post of Associate Professor notified in Ext. P2 notification., The teaching experience cited by the appellant in her application for consideration to the post of Associate Professor includes two spells of service as Lecturer at the Teacher Education Centre, Kannur University, on ad hoc/contract basis. The learned Single Judge found that the said spells of service cannot be reckoned towards valid teaching experience since they were rendered many years prior to the application and, further, the said service was rendered as a Lecturer and not as an Assistant Professor. On a perusal of Ext. P2 notification, as well as the University Grants Commission Regulations, 2018, we do not find any prescription therein that suggests that the qualifying experience must be attained proximate in point of time with the date of preferring an application seeking consideration for appointment to the post of Associate Professor. In its absence, it was not for this Court to introduce a requirement in the notification or the Regulations, which the academic policy makers did not deem necessary. That apart, the nomenclature of Assistant Professor was one that was introduced in later University Grants Commission Regulations to denote the entry level teaching post in a University, which was earlier known as Lecturer. Thus, the post of Lecturer was merely re‑designated as Assistant Professor and there was no qualitative change in the nature of duties attached to the post., That said, we do find merit in the submission of the learned senior counsel for the writ petitioner that consequent to the re‑designation as Assistant Professor, the qualification requirements for the post also changed and were made similar to those that were required of the erstwhile Senior Lecturers. In the case of the appellant, therefore, we have to see whether she was possessed of the necessary qualifications stipulated for an Assistant Professor under the University Grants Commission Regulations, 2018 at the time when she rendered her service as Lecturer at the Teacher Education Centre, Kannur University, on ad hoc/contract basis. We gather from the submissions of Sri. Renjith Thampan, the learned senior counsel appearing on behalf of the appellant that she had obtained her National Eligibility Test qualification by January 2002, and thereby stood possessed of all the qualifications prescribed for an Assistant Professor under the University Grants Commission Regulations, 2018. If that be so, then it follows that, while she cannot count her first spell of eight months that was rendered prior to her attaining the NET qualification, the second spell of eight months and twenty‑four days from 05.06.2002 to 28.02.2003 would qualify as valid teaching service subject to her demonstrating that she qualifies for counting her previous ad hoc or contractual service as past service for the post of Associate Professor, in terms of Regulation 10 (f) of the University Grants Commission Regulations., A contention that was raised by Sri. George Poonthottam, the learned senior counsel appearing for the writ petitioner was that the appellant herein did not satisfy the requirement of having eight years teaching experience after the date of acquisition of her Ph.D. degree. He points out that the basic qualification prescribed for the post of Associate Professor in Ext. P2 notification as well as in the University Grants Commission Regulations, 2018 is a Ph.D. degree and hence the further requirement under the Notification/Regulations that an aspiring candidate for the post must possess eight years teaching experience as an Assistant Professor would mean that the candidate concerned had to be possessed of the stipulated teaching experience as Assistant Professor after acquiring the Ph.D. qualification. He relies on the provisions of Rule 10 of the Kerala State Service Rules that have been made applicable to the University under the Kannur University Act and First Statutes, as also the judgment of a Full Bench of the Kerala High Court in Basheer A. (Dr.) v. Dr. Saiful Islam A. and Others [2014 (4) KHC 379] in support of the said contention., At the outset, we might observe that the above contention of the learned senior counsel was in fact considered by the learned Single Judge but did not find favour with him. In the impugned judgment, the learned Judge brushes aside the said contention by holding the Full Bench decision as not applicable to the facts in the instant case and apparently agreeing with the submission made on behalf of the appellant that Rule 10 of the Kerala State Service Rules would apply only to cases where the statutory rules were silent on whether the experience prescribed should be before or after the date of acquisition of the basic qualification for the post. The appellant had contended that in the instant case, the statutory provision was clear in that the teaching experience of eight years had to be in a candidate’s capacity as Assistant Professor, which post did not mandate the possessing of a Ph.D. degree as requirement for continuing in the post., At any rate, the writ petitioner is not in appeal before us against the judgment impugned in this appeal and hence we do not see the need to interfere with the finding of the learned Single Judge on the said issue., We thus allow this Writ Appeal by setting aside the impugned judgment of the learned Single Judge, dismissing the writ petition and finding in favour of the appellant on all the issues enumerated in paragraph no.9 above, save in respect of the first spell of ad hoc/contractual service rendered by her at the Teacher Training Centre, Kannur University and covered by the discussion in relation to Issue (4). We declare that the appellant Mrs. Priya Varghese is entitled to: (i) Reckon the period spent by her on research under the Faculty Development Programme of the Kannur University towards the research experience stipulated under Ext. P2 notification read with the University Grants Commission Regulations of 2018; (ii) Reckon the period spent by her on deputation as Director of Student Services/Programme Coordinator of NSS of the Kannur University, towards the teaching experience required for appointment as an Associate Professor pursuant to Ext. P2 notification; (iii) Reckon the second spell of eight months and twenty‑four days from 05.06.2002 to 28.02.2003, spent by her as Lecturer at the Teacher Education Centre at Kannur University on ad hoc/contract basis towards the teaching experience as Assistant Professor required for appointment as an Associate Professor pursuant to Ext. P2 notification; and that her candidature for the post of Associate Professor as notified in Ext. P2 notification shall be considered accordingly., Before parting with this case, we deem it apposite to make a few observations taking note of the media attention that this case received while it was being adjudicated before the learned Single Judge. It is trite that courts have necessarily to be cautious while interfering with the decisions of academic bodies for we are often dragged into unfamiliar territories while examining the legality of impugned decisions. We often encounter difficulties while trying to appreciate the true scope and ambit of provisions couched in academic jargon, as there are invariably different context‑based perspectives that can be adopted in a given case. On such occasions, prudence dictates that during the adjudication process, we give due weightage to the views of the expert academic bodies and interfere with their decisions only when there is a clear violation of the statutory provisions or when their decision is vitiated on any of the grounds that justify the exercise of the power of judicial review., That said, frighteningly frequent are those occasions when the impugned decision in academic matters attracts media attention for some reason or the other, and the Kerala High Court has then to deal with the added distraction brought about through incessant newspaper/channel discussions and overwhelming social media posts. It is for this reason that courts have time and again exhorted the print and electronic media to exercise restraint by deferring discussions on matters pending before the court so that the rule of law can be better served by avoiding an obstruction of the course of justice., On its part, the media cannot be unmindful of the harm that is caused to a litigant’s dignity and reputation through unjustified comments and remarks, often based on the oral remarks made by a judge during the adjudication proceedings, notwithstanding that the litigant ultimately succeeds in those proceedings. They must note that no less a constitutional functionary than the Chief Justice of India, had recently observed that not everything that is said by a judge during the course of interaction with counsel in court can be taken as revealing the judge’s views on the merits of the cause that is being adjudicated. While the right to a fair trial has long been recognised as forming part of the fundamental right of a citizen under Article 21 of the Constitution, in recent times, the right to privacy has also been recognised as forming part of the said right through the judgment of the Supreme Court in K.S. Puttaswamy & Anr v. Union of India & Ors. [(2017) 10 SCC 1]. Even prior to the said judgment, the right to protect one’s reputation was recognised as forming part of the fundamental right under Article 21 of the Constitution in Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni [(1983) 1 SCC 124]. The International Covenant on Civil and Political Rights, 1965 also recognises the right to have opinions and the right of freedom of expression subject to the right of reputation of others. The right has also been recognised in State of Bihar v. Lal Krishna Advani [(2003) 8 SCC 36]. Granville Austin in his treatise on our Constitution titled The Indian Constitution: The Cornerstone of a Nation, states that while under our Constitution, the guarantee of fundamental rights is mostly seen as offering individuals and minority groups protection against arbitrary and prejudicial state action, there are provisions under the Constitution, such as Article 17, which abolishes untouchability, Article 15(2), which lays down that no citizen shall suffer any disability in the use of shops, restaurants, wells, roads and other public places on account of his religion, race, caste, sex or place of birth and Article 23, which prohibits forced labour, that are designed to protect an individual against the actions of other private citizens. On account of its nature as a right that is personal to an individual, we are of the view that the newly recognised fundamental right to privacy, which takes within its fold the right to protection of one’s reputation as well, would merit classification as a fundamental right that protects an individual, not only against arbitrary State action, but also against the actions of other private citizens, such as the press or media. We trust, therefore, that the media will take note of these observations and adopt a code of responsible journalistic conduct that will inform news reporting in the days to come. The Writ Appeal is allowed as above.
id_1407	0	Anubha Srivastava Sahai, age 44 years, occupation: Lawyer, Indian inhabitant, residing at Arlington Roads Enclave, Hiranandani Estate, Thane-400607, Taluka: Panvel, District: Raigad, Petitioner. National Testing Agency, through Chairperson, C-20 1A/8, Sector 62, IITK Outreach Center, Noida-201309, Respondent. Union of India, through the Ministry of Education, through its Secretary, J688+644, C Wing, Shastri Bhawan, Dr. Rajendra Prasad Rd, Rajpath Area, Central Secretariat, Delhi-110001, Respondent. National Commission for Protection of Child Rights, 5th Floor, Chandralok Building 36, Janpath Rd, New Delhi-110001, Respondent., Appearances: Mr. Joseph G. Thattil, in behalf of M/s. Thattil & Co. for Petitioner/Intervener in IA No. 3656 of 2023. Anubha Srivastava Sahai, party in person. Mr. Anil Singh, Additional Solicitor General, as well as Rui Rodrics, as well as Aditya Thakur, as well as Smita Thakur, as well as Jainendra Seth for Respondent., Justice Sandeep V. Marne, Date: 3rd May 2023., This public interest litigation is filed by the petitioner, a child rights activist and a lawyer, seeking twin reliefs of rescheduling the Joint Entrance Examination (Main) 2023 from January 2023 to April 2023 and for relaxation of the minimum eligibility criteria fixed at 75 percent marks (65 percent for Scheduled Castes/Scheduled Tribes) in the class XII board examination for admissions to National Institutes of Technology, Indian Institutes of Technology and Centrally Funded Technical Institutions., Regarding the first prayer for rescheduling of the JEE Main examination, the Supreme Court of India passed the following order on 10 January 2023: In the present PIL the petitioner prays for two reliefs: to postpone the JEE Main exam to be held in January 2023 and to relax the eligibility criteria of obtaining 75 percent marks in the class XII examination., As far as the challenge to the eligibility criteria of obtaining 75 percent marks in the class XII examination is concerned, the learned advocate of the petitioner submits that he has received the copy of the affidavit in reply filed by the respondent just now and seeks time to file a rejoinder and argue the matter. The eligibility criteria of obtaining 75 percent marks in the class XII examination would be relevant at the time of seeking admission to the professional course which would be after June 2023., The petitioner apprehends that for the examinations scheduled to be held from 24 January 2023 to 31 January 2023, students will have very little time for preparation. The schedule was declared only on 15 December 2022, giving hardly 40 days to the students to prepare for the examination. The learned advocate for the petitioner submits that although another opportunity is available in April 2023 for students to appear for JEE Main, each attempt is counted. Moreover, as less time is provided for preparation, holding the examination in January 2023 would be detrimental to the interest of students., The learned counsel submits that the JEE Main examinations to be held in January 2023 may be postponed to April 2023 and the examinations to be held in April 2023 may be postponed to May 2023., The learned Additional Solicitor General submits that in the years 2019 and 2020 JEE Main exams were held in January and April. In the year 2021, because of the pandemic, the examinations were held in four sessions i.e., February, March, April and May., The learned Additional Solicitor General further submits that the petitioner does not have locus standi to file the present PIL., JEE Main exams are held twice every year. Even if a student does not fare well in the January exam, he can appear in April for improvement and the better marks obtained in either of the exams are taken into consideration., Even if the student does not appear for the JEE Main exam in January 2023, he can appear for the JEE Main exam in April 2023., It is not disputed that the schedule of the JEE Main examination of January and April is applicable pan India. The petitioner claims to be a social activist and a child rights activist. If any orders are passed today directing postponement of the JEE Main January 2023 examination, the same may have a cascading effect on future examinations also. The next JEE Main examination is held in April 2023, and sufficient time would be available to the students from January to April. In case the student does not fare well in the January examination, he can compete in the April examination., The extraordinary circumstances do not appear to exist for restraining the respondents from holding the JEE Main examination in January 2023. Lakhs of students must have been preparing for the examination. On the basis of the present PIL on behalf of a child rights activist, it would not be appropriate to direct postponement of the examination scheduled pan India., As far as the other challenge to the eligibility criteria is concerned, the learned advocate for the petitioner has sought time to file a rejoinder., Place the matter on 21 February 2023., The first prayer for rescheduling the JEE Main examination thus no longer survives. We are accordingly considering the second prayer for relaxing the criteria of minimum 75 percent / 65 percent marks in the class XII board examination., The petitioner claims herself to be a child rights activist working for welfare and redressal of grievances of students. Respondent No. 1, National Testing Agency, has been established to conduct entrance examinations for admission or fellowship in higher educational institutions. The National Testing Agency issued a public notice dated 15 December 2022 inviting online application forms for Joint Entrance Examination (Main) 2023 Session I (January 2023) proposing to hold JEE Main 2023 in two sessions in January 2023 and April 2023. JEE Main and Advanced are to be conducted for admissions to National Institutes of Technology, Indian Institutes of Technology and Centrally Funded Technical Institutions. An information bulletin was published by the National Testing Agency for JEE Main 2023. In chapter 14 of the information bulletin dealing with admission, the following condition has been incorporated: Eligibility for admission to NITs, IIITs and CFITs participating through the Central Seat Allocation Board will be based on All India Rank subject to the condition that the candidate should have secured at least 75 percent marks in the class XII examination conducted by the respective boards. For Scheduled Caste/Scheduled Tribe candidates the qualifying marks would be 65 percent in the class XII qualifying examination. The candidate is also required to pass each of the subjects of class XII qualifying examination. The petitioner is aggrieved by condition 14.1 in the information bulletin., The eligibility criteria of securing at least 75 percent marks in the class XII examination or being in the top 20 percentile in the class XII examination conducted by respective boards for admissions to NITs, IITs and CFITs was first introduced during the academic year 2017-18. Irrespective of the JEE score, candidates could not be granted admissions to those institutions unless they secured the minimum 75 percent marks for the general category and 65 percent marks for the SC/ST category in the class XII examination. On account of the Covid-19 pandemic, the said condition of securing a minimum percentage of marks was relaxed for JEE examinations conducted in the years 2020-21, 2021-22 and 2022-23. The said minimum criteria is insisted upon in the JEE examinations held in the year 2023 (academic year 2023-24). The petitioner is aggrieved by the decision of the National Testing Agency in prescription of the said criteria and has accordingly filed the present petition in public interest., Interim application No. 3656 of 2023 has been filed by Mr. Utpal Hazra, who is the father of Ms. Sneha Hazra. Sneha appeared in the class XII examination of the CBSE board in the year 2023 and secured 71.8 percent marks. On account of the relaxation granted for JEE Main 2023, Sneha was fulfilling the eligibility criteria for admission to NITs, IIITs and CFITs. She appeared for JEE Main 2022 and secured 87.074 percent marks when the cut‑off marks for JEE Advanced was 88.412438 percent. Therefore Sneha could not appear for JEE Advanced for 2022, though she was granted admission for the B.Tech course in the Institute of Technology at Chandigarh. Instead of taking admission, she decided to take a drop with plans to improve her score in JEE Main and Advanced examinations. In Session I of JEE Main held in January 2023, she scored over 91.5 percent marks but again opted out of the admission offered in the institute with plans to appear again in Session II of JEE Main. She has filed an intervention application challenging the prescription of 75 percent marks in the class XII examination as eligibility criteria for admission to IITs, NITs and CFITs., We have heard Ms. Anubha Sahai, party in person, who is also an advocate. She would submit that the condition of securing 75 percent marks in the class XII examination was not insisted upon in the years 2021 and 2022 and therefore insistence on that criteria in the year 2023 is arbitrary. The objective behind relaxing the criteria in 2021 and 2022 was low scores by students in class XII examinations due to the Covid-19 pandemic. She would submit that several Covid‑pandemic‑affected students who appeared for class XII in 2021 are also eligible to seek admissions in NITs, IITs and CFITs in the year 2023. Prescription of the condition of minimum 75 percent marks throws such students out of the fray even if they secure higher marks in JEE Main and Advanced., Mr. Thattil, the learned counsel appearing for the intervener, would submit that the intervener would not be eligible to secure admission to an IIT on account of scoring 71.8 percent marks in the class XII examination. That her marks were decided as per the calculations decided by CBSE for Covid‑affected students of the years 2020-21 and 2021-22 under which a formula adopted by CBSE granted weightage of 30 percent to the first semester and 70 percent to the second semester. He would submit that there are thousands of students who could not secure the minimum 75 percent marks in class XII examinations, particularly in stricter boards like CBSE. He would further submit that the other relaxation of being in the top 20 percentile of the board is meaningless as in almost all the boards the criteria of minimum 75 percent marks is stricter than the criteria of being in the top 20 percentile and therefore the said relaxation is otherwise futile., Mr. Anil Singh, the learned Additional Solicitor General of India, would oppose the petition. He would submit that the criteria of minimum 75 percent marks has not been introduced for the first time in the year 2023 and has been in existence since the year 2017-18. That the said criteria was prescribed even for the years 2020-21 and 2021-22 but by separate letters relaxation was granted to that condition on account of the Covid-19 pandemic. Petitioners cannot seek continuation of such relaxation forever. There cannot be any legitimate expectation in a hope. In support of his contentions Mr. Singh would rely upon judgments of the Supreme Court in Maharashtra State Board of Secondary and Higher Secondary Education and Anr. v. Paritosh Bhupesh Kurmarshheth, AIR 1984 SC 1543 and State of Bihar v. Sachindra Narayan and Others, (2019) 3 SCC 10., We have considered the submissions canvassed before us. There is no denial to the fact that the condition of securing 75 percent marks (65 percent for SC/ST) or being in the top 20 percentile of the board was incorporated in JEE Main 2018. The same was repeated in JEE Main 2019 and JEE Main 2020. However, on account of the outbreak of the Covid-19 pandemic, the Government of India, Ministry of Human Resource Development, Department of Higher Education issued a letter dated 24 April 2020 directing as follows: For admissions in NITs and other Centrally Funded Technical Institutions, apart from qualifying the JEE Main, the eligibility is to secure a minimum of 75 percent marks in the class XII board exams or rank among the top 20 percentile in their qualifying examinations. Due to prevailing circumstances, as recommended by CSAB‑2020 it was decided to relax the eligibility criterion for admission to NITs and other CETIs. JEE Main 2020 qualified candidates will now only need a passing certificate in class XII examination irrespective of the marks obtained. The above relaxation is one‑time and shall be applicable for the academic year 2020‑2021 only. CSAB 2020 shall follow all other conditions for admission to undergraduate programmes of NITs and other CFTIs., For JEE Main 2021, the criteria of minimum 75 percent marks (65 percent for SC/ST) or being within the top 20 percentile of the board was repeated. However, by a letter dated 21 January 2021, the Government of India extended the relaxation granted in the previous year for JEE Main 2021 by directing that qualified candidates needed just a passing certificate in class XII examination irrespective of the marks obtained. For JEE Main 2022, similar relaxation was granted by a letter dated 20 June 2022., The Government of India has not extended the relaxation granted in the previous three years owing to the Covid-19 pandemic for JEE Main 2023. We find that the relaxation was granted on account of the existence of special circumstances by the Government of India. The petitioner and intervener do not have any vested right to claim relaxation for the current year's examination. Merely because relaxation in the criteria of minimum 75 percent marks (65 percent for SC/ST) in class XII was granted in the previous three admission processes, the same would not entitle the students to continue to claim relaxation indefinitely., It would not be possible for the Supreme Court of India to sit in judgment over the decision of the National Testing Agency in prescribing the eligibility criteria for admissions to NITs, IITs and CFITs. Though the National Testing Agency has filed an additional affidavit dated 26 April 2023 offering justification for the prescription of the criteria of 75 percent marks, we cannot go into the merits of the said justification. In this regard, reliance placed by Mr. Singh on the judgment of the Supreme Court in Paritosh Bhupesh Kurmarshheth (supra) is apposite, wherein it is held: In our opinion, the approach made by the High Court is wholly incorrect and fallacious. The Court cannot sit in judgment over the wisdom of the policy evolved by the Legislature and the subordinate regulation‑making body. It may be a wise policy which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that, in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act., The Legislature and its delegate are the sole repositories of the power to decide what policy should be pursued in relation to matters covered by the Act and there is no scope for interference by the Court unless the particular provision impugned before it can be said to suffer from any legal infirmity, in the sense of being wholly beyond the scope of the regulation‑making power or being inconsistent with any of the provisions of the parent enactment or in violation of any of the limitations imposed by the Constitution. None of these vitiating factors are shown to exist in the present case and hence there was no scope at all for the High Court to invalidate the provision contained in clause (3) of Regulation 104 as ultra vires on the grounds of its being in excess of the regulation‑making power conferred on the Board., Equally untenable, in our opinion, is the next and last ground by the High Court for striking down clause (3) of Regulation 104 as unreasonable, namely, that it is in the nature of a bye‑law and is ultra vires on the ground of being an unreasonable provision. It is clear from the scheme of the Act and more particularly sections 18, 19 and 34 that the Legislature has laid down in broad terms its policy to provide for the establishment of a State Board and Divisional Boards to regulate matters pertaining to secondary and higher secondary education in the State and it has authorised the State Government in the first instance and subsequently the Board to enunciate the details for carrying into effect the purposes of the Act by framing regulations. It is a common legislative practice that the Legislature may choose to lay down only the general policy and leave to its delegate to make detailed provisions for carrying into effect the said policy and effectuate the purposes of the statute by framing rules/regulations which are in the nature of subordinate legislation., Section 3(39) of the Bombay General Clauses Act, 1904, which defines the expression rule states: Rule shall mean a rule made in exercise of the power under any enactment and shall include any regulation made under a rule or under any enactment. It is important to notice that a distinct power of making bye‑laws has been conferred by the Act on the State Board under section 38. The Legislature has thus maintained in the statute in question a clear distinction between bye‑laws and regulations. The bye‑laws to be framed under section 38 are to relate only to procedural matters concerning the holding of meetings of the State Board, Divisional Boards and the Committee, the quorum required, etc. More important matters affecting the rights of parties and laying down the manner in which the provisions of the Act are to be carried into effect have been reserved to be provided for by regulations made under section 36., Petitioners cannot claim relaxation in eligibility criteria as a matter of right. Whether relaxation is to be extended or not is in the realm of policy decision of the government. The government may or may not relax the eligibility conditions depending on the factual situation. Undeniably, the very same eligibility condition existed during the years 2017-18, 2018-19 and 2019-20 and the students seeking admission during those years accepted the said condition and the entire process of admissions was completed by following the said eligibility criteria. We do not find the said eligibility condition to be arbitrary in any manner. The petitioner or intervener have also not challenged the prescription of the said condition. What they seek is essentially relaxation of the said condition. The relaxation is sought under legitimate expectation that the government would extend relaxation for the current year as well. However, in absence of any vested right, no legitimate expectation would exist., In State of Bihar v. Sachindra Narayan (supra), the Supreme Court has held: In view of the above judgments, legitimate expectation is one of the grounds of judicial review but unless a legal obligation exists, there cannot be any legitimate expectation. Legitimate expectation is not a wish or a desire or a hope, therefore, it cannot be claimed or demanded as a right., The students, whose cause the petitioner is allegedly espousing, neither have any vested right nor legitimate expectation to claim relaxation in the eligibility criteria for admissions to NITs, IITs and CFITs during the current year. Since grant of relaxation is a policy decision, the same can be taken by the Government of India in appropriate circumstances. This Supreme Court of India would not be in a position to issue a writ of mandamus directing the government to grant relaxation in the eligibility criteria for admissions., It is also required to be borne in mind that the JEE is held pan India and thousands, perhaps lakhs, of students participate in the same. This would be another reason why this Supreme Court of India would be loath to interfere in the methodology of conducting JEE and/or the admission process, particularly when the two sessions of JEE 2023 have already been conducted and JEE Advanced is scheduled to be held in a short while from now., Resultantly, we do not find any merit in the petition. The public interest litigation is accordingly dismissed without any order as to costs. Interim applications also stand disposed of.
id_1408	0	Supreme Court Civil Writ Petition No. 2839/2022 Master Arjun Choudhary, aged about 16 years, through his father Mr. Bhanwar Lal, son of Shri Rugharam, aged about 44 years, resident of House No. 165, Khasra No. 108/1, Inderprasth Nagar, Nandri, Jodhpur, Rajasthan, PIN 342015. Petitioner versus Chairman, Army Public School, Near Fol Depot, Ajmer Road, Jodhpur, Rajasthan, PIN 342015; Principal, Army Public School, Near Fol Depot, Ajmer Road, Jodhpur, Rajasthan, PIN 342015. Respondents. For petitioner: Ms. Arti Kumari Gupta. For respondents:, When the Supreme Court of India assembled today at 11:00 a.m., Ms. Arti Kumari Gupta, counsel for the petitioner, mentioned this matter and submitted that, since the Supreme Court of India is not in a position to hear the matter, it may be transferred to another bench. The Supreme Court of India tried to convince the counsel that the matter would be taken up in its own turn, but she refused to accept and continued with her arguments, submitting more than twice that the Supreme Court of India should not hear the matter and should transfer it to another bench. The counsel also stated that on an earlier occasion the Supreme Court of India made oral comments which, in her view, were against the merits of the case. She insisted that the Supreme Court of India should not hear the matter and should transfer it to another bench. Even during the dictation of this order, the counsel continuously interrupted and insisted that the Supreme Court of India not hear the matter or pass any order. The counsel submitted that she is making these submissions in the interest of her client. The Supreme Court of India is of the opinion that no counsel can insist that the court not hear a matter on the ground that the court is unable to take up the matter, despite the fact that more than one hundred cases are listed today and several advocates have their matters marked as urgent. Even if, during the hearing, the court comments on the merits of the case, which the counsel alleges is not favourable to the petitioner, no counsel can insist on recusing the court from hearing the matter. In the opinion of the Supreme Court of India, the conduct of the counsel for the petitioner is highly objectionable and contemptuous; however, without making any further comment regarding the conduct of the counsel, I deem it appropriate to place the matter before the Honourable Chief Justice for suitable orders.
id_1409	0	Appellant: State of Uttar Pradesh. Respondent: Ajai Mishra alias Taini and three others. Counsel for Appellant: A. H. Rizvi, Avanindra Singh Parihar, Government Advocate, Nagendra Mohan, Sushil Kumar Singh. Counsel for Respondent: S. K. Shukla, Armendra Pratap Singh, Brij Mohan Sahai, Pradeep Chaurasia, Purnendu Chakravarty, Salil Kumar Srivastava, Sumit Kumar Singh. Revisionist: Santosh Gupta. Opposite Party: State of Uttar Pradesh and four others. Counsel for Revisionist: Sushil Kumar Singh, Armendra Pratap Singh, Pradeep Chaurasia. Counsel for Opposite Party: Government Advocate, Rajiva Dubey. Honourable Attau Rahman Masoodi, Justice. Honourable Om Prakash Shukla, Justice (Delivered by Honourable A. R. Masoodi, Justice)., Both the State and the de facto complainant are before the High Court of Uttar Pradesh challenging the order of acquittal of all four accused respondents by the Sessions Court in Sessions Trial No. 518/2001, under Section 302 and Section 34 of the Indian Penal Code. The Sessions Court, while acquitting these accused persons of all charges, concluded by an order dated 29 March 2004, stating that the prosecution had utterly failed to prove its case and did not inspire confidence. The presence of eye witnesses at the spot was not proved, and the prosecution story was developed stage by stage, inconsistent with medical evidence and not supported by the FIR; consequently, the prosecution story and evidence were not credible and all accused persons must be acquitted of all charges. The State filed Criminal Appeal No. 1624 of 2004 under Section 378 of the Code of Criminal Procedure, and the de facto complainant preferred Criminal Revision No. 221 of 2004 under Section 397 read with Section 401 of the Code of Criminal Procedure. Since both proceedings arise out of the same impugned order and involve the same facts and circumstances, they are being dealt with and disposed of by this common judgment., The appeal filed by the State under Section 378 of the Code of Criminal Procedure relates to the murder of Prabhat Gupta alias Raju, for which a First Information Report was lodged by his father Santosh Gupta at Tikonia Police Station, District Lakhimpur Kheri on 8 July 2000 at 3:30 p.m. The information leading to the FIR indicated the presence of four culprits at the time of the incident, identified by two eye witnesses. It states that the deceased left the informant’s house at 3 p.m. on 8 July 2000 to go to his shop, and upon reaching the main road, he was shot to death by two of the named culprits, the death occurring on the spot., The eye witnesses in the FIR were stated to have seen the occurrence in broad daylight, which, according to the informant, was probable against a background of political rivalry and enmity. The registration of the FIR by the scribe Shri Krishna (Head Master 53) on 8 July 2000 at 3:30 p.m. set the machinery of law in motion., Immediately after lodging the FIR, the Investigating Officer visited the scene, drew up a site plan referencing the dead body, and noted the recovery of articles including two empty cartridges and a pair of footwear. An inquest report was prepared from 3:40 p.m. to 5 p.m. in the presence of village elders (panchas). The report recorded the injuries on the dead body, the site plan from which the two empty cartridges were recovered, the oozing blood, and the direction of firearm injuries from right to left. It also mentioned that the sealed dead body was handed over at 5 p.m. on 8 July 2000 to two police personnel for obtaining the post‑mortem report to determine the cause of death, which the panchas stated had occurred due to firearm injuries., The post‑mortem was conducted on 9 July 2000 at 11 a.m., and the report was drawn accordingly. The deceased had sustained two gunshot entry wounds and one exit wound. No other person was injured., The doctor stated that death occurred due to shock and haemorrhage resulting from ante‑mortem injuries, and one bullet was recovered from the dead body., The investigation was conducted in a piecemeal manner by different officers. Sub‑Inspector T. B. Singh conducted the investigation from 8 July 2000 to 15 July 2000. From 16 July 2000 to 18 July 2000, the investigation was carried out by a team constituted under the order of the Inspector General of the Zone, headed by Balvir Singh of Security and Investigation Services (SIS). On 19 July 2000, investigation was done by Hemant Singh, a member of the SIS team. From 20 July 2000 to 28 September 2000, investigation was conducted by R. P. Tiwari of the Crime Branch Crime Investigation Department (CBCID). The proceedings of any investigation conducted between 28 September 2000 and 6 November 2000 are not clear from the record available before the High Court of Uttar Pradesh. It appears that from 6 November 2000 to 13 December 2000, another R. P. Tiwari of SIS, after collecting evidence, concluded the investigation with the submission of a charge sheet against the accused persons., Until the stage of investigation, many aspects shocked normal prudence, such as why, if the FIR was lodged promptly, the post‑mortem report was prepared a day later and why the recording of statements under Section 161 of the Code of Criminal Procedure was delayed., The delay in the arrest of the culprits and the shifting of investigation from one agency to another is significant. To improve accuracy regarding the place of occurrence, the investigating officer prepared a second site plan on 26 November 2000, but the recovery of two cartridges and one bullet was not subjected to any ballistic report. The measured distance in footsteps from the informant’s house to the point of occurrence in the two site plans varies, and the directional route also differs., After cognizance, at the stage of framing charges before the Sessions Court, a charge under Section 302 of the Indian Penal Code was framed only against the two accused persons attributed with the firearm injuries, whereas the other two were tried for the same offence under Section 34 of the Indian Penal Code. The place of occurrence in the charge sheet is mentioned within the limits of Tikonia town and is not circumscribed within either of the two site plans., The accused persons abjured guilt and claimed trial. The case was thereafter transferred to the Additional Sessions Judge/Fast Track Court No. 4, and by order of the High Court of Uttar Pradesh passed on 23 February 2004, the trial was transferred to the Sessions Judge, where day‑to‑day hearings were conducted and concluded on 24 March 2004., The prosecution, to prove guilt, examined as many as twelve witnesses: the informant Santosh Gupta (PW‑1), father of the deceased; the eye witnesses mentioned in the FIR Vinod Gupta (PW‑2) and Sanjeev Gupta (brother of the deceased, PW‑3); other eye witnesses discovered during investigation viz. Shiv Kumar (PW‑4) and Jagdish Prasad Yadav (PW‑10); Gopal Verma (PW‑5) and Atul Gupta (PW‑6) examined as witnesses of the Panchayat record; Dr. S. K. Maneer (PW‑7) who conducted the post‑mortem; Head Clerk 53 Shri Krishna (PW‑8) who prepared the FIR; Sub‑Inspector T. B. Singh (PW‑9) as investigating officer; R. P. Tiwari (PW‑11) as investigating officer; and another R. P. Tiwari (PW‑12) who also investigated the case, examined as official witnesses., In their statements recorded under Section 313 of the Code of Criminal Procedure, the accused respondents, denying the charges of murder, stated that they had been implicated due to political rivalry and enmity arising from panchayat elections. They denied the prosecution story and submitted that the witnesses had given false statements to implicate them., The defence case, in extenuation of the charges, is that the accused respondents have been falsely roped into the case; however, they adduced no evidence in support of their defence., The Sessions Judge, after scrutinizing and appraising the evidence, recorded a verdict of acquittal of the accused respondents on the charge under Section 302 of the Indian Penal Code read with Section 34 of the Indian Penal Code, giving rise to this State appeal under Section 378 of the Code of Criminal Procedure, which, on leave being granted, was admitted by order dated 3 February 2005., Sri Umesh Chandra Verma, learned Additional Government Advocate, argued this appeal for the State, whereas the complainant who had instituted Criminal Revision No. 221 of 2004 against the same judgment had passed away during the pendency of the revision and was heard through his legal representatives as victims. This opportunity was granted by an order on the connected criminal revision dated 13 February 2023, part of which is reproduced as follows: In the present case, the connected appeal, i.e., Criminal Appeal No. 1624 of 2004 instituted by the State, is pending against the same judgment; therefore, the consequence of abatement of the present revision is inconsequential and does not leave the legal heirs of the revisionist remediless. The legal heirs of the revisionist have an opportunity to participate in the pending criminal appeal instituted by the State as victims, for which a similar application has been made by the applicants in the connected criminal appeal. Having regard to the scope of Section 397 read with Section 401 of the Code of Criminal Procedure juxtaposed to Section 394 of the Code of Criminal Procedure, we dispose of this application permitting the legal heirs, or any one of them, to participate in the connected criminal appeal as victims, to which there is no objection by the accused respondents., The learned Additional Government Advocate for the State argued the matter very ably, taking the Court through the material on record, and reprimanded the trial court for not having proceeded with the case from the correct perspective. The appreciation of evidence by the prosecution was seriously faulty, rendering the acquittal of the accused respondents illegal and perverse., According to the learned counsel for the State, it was a case of broad‑daylight murder, duly witnessed by eye witnesses, and the prosecution had successfully proved the evidence as wholly reliable; therefore, the acquittal recorded by the trial court is against the weight of evidence. The learned counsel for the prosecution, however, conceded that an acquittal through the process of law safeguards the presumption of innocence doubly, and that the prosecution, in order to secure a conviction, is duty‑bound to prove its case beyond a reasonable doubt and to show that the acquittal recorded by the trial court was not a possible view., The frame of the prosecution case, set on the testimony of star‑witness Sanjeev Gupta (PW‑3), brother of the deceased, is argued to be supported by corroborative evidence that, when read correctly, leaves no doubt in the prosecution case, and the resultant opinion, in any view of the matter, is none other than the conviction of the culprits spotted at the place of occurrence; therefore, the judgment of the trial court deserves reversal., Elaborating on the foundational testimony of Sanjeev Gupta (PW‑3), the real brother of the deceased, it was argued that his oral testimony, being natural, was wholly reliable and the corroborative evidence fully supports the prosecution case. The High Court of Uttar Pradesh, while dealing with the case, is conscious that the commission of an offence and the complicity of offenders are two different realities. The complicity of an offender must be provenly established in connection with the commission of the charged offence; only then is it permissible for a court of law to derive a conviction, failing which acquittal is the rule., The law stands settled that any acquittal order cannot be lightly interfered with by the appellate court, though the High Court of Uttar Pradesh has wide powers to review the evidence and to reach its own conclusion. However, the power to grant leave must be exercised with care and caution because the presumption of innocence is further strengthened by the acquittal of an accused. The Supreme Court of India in Chandrappa & Others v. State of Karnataka (2007) 4 SCC 415 held: “(1) An appellate court has full power to review, re‑appreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on the exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as ‘substantial and compelling reasons’, ‘good and sufficient grounds’, ‘very strong circumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc., are not intended to curtail the extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of ‘flourishes of language’ to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed innocent unless proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”, The Supreme Court of India, recently in the case of Ravi Sharma v. State (Government of NCT of Delhi & Anr.) (2022 SCC Online 859) and Jafarudheen and Others v. State of Kerala (2022 SCC Online SC 495), which was decided after following earlier precedents such as (i) Mohan alias Srinivas alias Seena alias Taialor Seena v. State of Karnataka (2021 SCC Online SC 1233) and (ii) N. Vijayakumar v. State of Tamil Nadu (2021) 3 SCC 687, reiterated the scope of Section 378 of the Code of Criminal Procedure while dealing with an appeal against acquittal by the High Court in the following words: “While dealing with an appeal against acquittal by invoking Section 378 of the Code of Criminal Procedure, the appellate court has to consider whether the trial court’s view can be termed as a possible one, particularly when the evidence on record has been analyzed. The reason is that an order of acquittal adds to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.”, Further, it is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving the case beyond all reasonable doubt lies on the prosecution and never shifts. Another golden thread in the administration of justice in criminal cases is that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the view favourable to the accused should be adopted. (V. Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808; State of Rajasthan v. Raja Ram, (2003) 8 SCC 180; Chandrappa & Ors. v. State of Karnataka, (2007) 4 SCC 415; Upendra Pradhan v. State of Orissa, (2015) 11 SCC 124; Golbar Hussain & Ors. v. State of Assam & Anr., (2015) 11 SCC 242)., Keeping in mind the aforesaid position of law, we shall examine the arguments advanced by the parties, as well as the evidence and materials on record, and see whether, in view of the nature of the offence alleged to have been committed by the respondents, the findings of fact by the trial court call for interference in the facts and circumstances of the case., Now, coming to the case at hand, it is noted that the presence of eye witnesses for the purpose of proving complicity of the accused at the place of incident begins from the residential place of the informant. The star witness (PW‑3), according to the prosecution story, started from his father’s residence along with Vinod Gupta (PW‑2) and were following the deceased Prabhat Gupta alias Raju, who had left the same house after having a meal to go to his shop at about the same time in the afternoon. From a close distance to the place of occurrence, they spotted all four accused possessing small firearms and saw two of them firing on the body of the deceased in daylight at 3 p.m. on 8 July 2000. To prove the presence of these two eye witnesses, the prosecution bears the burden of proof not only to establish that the two witnesses were present at the place of occurrence but also that they were present at the residential place of the informant where they joined together. The allegation of togetherness of the two witnesses in the FIR, read with the examination‑in‑chief of PW‑3, shows that both started together from the informant’s house and followed the deceased up to the place of occurrence, where they saw the deceased shot at by the two named accused and, thereafter, the accused brandishing their weapons along with two more known accused, all ran away from the scene towards Old Kotwali in the west. It is significant that when the two eye witnesses reached the deceased, they found him dead., It was nowhere stated by witness PW‑3 in his examination‑in‑chief that any other person had witnessed the occurrence, and no such person was named., The whole story of complicity of the accused persons revolves around the oral evidence of PW‑1, PW‑2, PW‑3, PW‑4 and PW‑10, who are the witnesses of facts to establish the complicity of the four accused. The remaining evidence is corroborative., The togetherness of the informant (PW‑1), the eye witness (PW‑3) and the deceased at their home on the date of occurrence is natural as they all resided in the same house, but once it is stated that PW‑3 accompanied Vinod Gupta (PW‑2) from the same house to the place of incident, the burden of proof multiplies and accords equal respect to the testimony of PW‑2., The informant initially altered his version in his examination‑in‑chief regarding the purpose of the deceased’s outing. The statement of going to the shop was altered to attending a dharna instead of the shop, a diversion that deserves scrutiny and understanding of its purpose. This diversion was introduced to establish the presence of PW‑2, whose presence at the informant’s house was otherwise unnatural. To explain PW‑2’s presence at his house on 8 July 2000, the informant introduced this fact, which PW‑3 does not explain in his testimony. To justify the contradiction, a new version was introduced by the informant contrary to what was stated in the FIR. The occurrence of the dharna needed to be proved to free the testimony from being untruthful. This contradiction affects the movement and presence of witnesses PW‑2 and PW‑3 together, clouding the truthfulness of the testimonies of PW‑1 and PW‑3. The presence of PW‑2 and PW‑3, when analyzed from the oral testimony of PW‑3 in depth, does not provide any clue as to how PW‑2 reached the informant’s place or when the two witnesses joined each other to follow the deceased on that fateful day., As per the prosecution case, the statements of PW‑4 and PW‑10 were significant to prove guilt, but there is no justification for why the eye witnesses named in the FIR did not disclose the identity of these witnesses before lodging the FIR and introduced them only when, prima facie, the prosecution felt the evidence on record was not strong enough to secure a conviction. While it is true that an eye witness need not be named in the FIR, the circumstances in which these two witnesses were introduced raise questions about the manner of investigation, and it can be inferred that they were brought in to strengthen the prosecution case, which otherwise might have weakened the story set up by the prosecution. Such an act cannot be said to have been taken in a natural, bona‑fide manner, as it goes to the root of the matter with an intention to fill loopholes in the investigation., Having focused on the aforesaid fact, it is extremely doubtful that the alleged eye witnesses either saw the occurrence or were present at the spot., PW‑3 Sanjeev Gupta, brother of the deceased and the star witness whose evidence, along with PW‑1 and PW‑10, has been heavily relied upon by the prosecution, deposed that on the date of occurrence, 8 July 2000, a dharna was organised by a political party (Samajwadi Party) along with the Vyapar Mandal. He and his brother Prabhat Gupta left the home at about 3 p.m. after having meals. The deceased proceeded ahead towards his shop, while he and Vinod Gupta walked behind, chatting. When the deceased reached the main road from the lane (gali), he suddenly saw all four accused there, each holding small‑size weapons, either revolvers or pistols. At that moment Ajay Misra alias Teni fired a gunshot at the temple of the deceased. Immediately Subhash alias Mama fired at the chest. The deceased collapsed after sustaining two gunshots and succumbed to death on the spot. Rakesh alias Dalu and Shashibhushan alias Pinki, displaying their weapons, uttered that Prabhat would not be spared and that anyone who came in between would also be shot. The assailants ran towards Old Kotwali. When he and Vinod Gupta reached the deceased, he had already died. Thereafter he and Vinod Gupta returned to his house and informed his father that Prabhat had been killed by Teni, and they went to the place of incident with his father, narrating the entire incident on the way., He also deposed that on the date of the incident his shop was closed due to the dharna, although he admitted that there was no call for closing the market by the Traders Association. He stated that he had informed this fact to Investigating Officer T. B. Singh but did not know why it was not mentioned in his statement. Although the holding of a dharna on the date of the incident was a crucial fact, he submitted that he does not remember whether he stated this fact before the CBCID officers when the investigation was taken over, or not. He expressed inability to recollect whether he informed the CBCID officer that his shop was closed that day and that he was going towards the place of demonstration from his house. Regarding the presence of Vinod Gupta at his place on the date of the incident, he deposed that Vinod Gupta had come to his house at 1–2 p.m., and after having meals, he, Vinod Gupta and the deceased Prabhat left together. Vinod Gupta was residing in Lakhimpur city and he had not met Vinod Gupta before the date of the incident., Replying to the query made by the Court, PW‑3 stated that the site of the dharna was at a distance of 40–50 steps from the place where the gunshot was fired and that the dharna site was partially visible from the place of the gunshot. He further stated that at the protest site 100–150 persons were present. Regarding audibility of the gunshot, he prudently deposed that the sound of the gunshot was neither very loud nor very low. According to the learned counsel for the appellant, to strengthen his stand that the sound of the gunshot could not have reached the place of protest, he also deposed that all the assailants, immediately after firing, left the scene and ran in the same direction, and that no one chased or pursued them. It is nowhere mentioned that any person tried to raise an alarm to reach the dharna site, where, according to PW‑3’s own statement, 100–150 people were present at a distance of 40–50 steps, especially when most of the persons belonged to the same political party of which the deceased was a designatory. Even a man of ordinary prudence would have raised an alarm to gather people and defend himself, particularly when, as the prosecution alleges, a dharna at a very short distance was being staged by a large number of persons. In this background, the very holding of a dharna on the date of occurrence becomes doubtful. The fact regarding a dharna being held on the date of occurrence is also specifically contradicted by the statement of PW‑8, Head Clerk 53 Shri Krishna, discussed subsequently., It is thus clear that PW‑3, while replying to the Court’s query, stated that he was at a distance of 40–50 steps from the place of occurrence, whereas in cross‑examination he stated that he was at a distance of 20–25 steps. Though this may be considered a minor discrepancy, since both versions were recorded on the same day during a continuous statement, such an anomaly cannot be a natural variation of guess but may be due to pressure and zeal in making the statement to prove his case., Likewise, the statement of PW‑8, Head Clerk 53 Shri Krishna, who prepared the FIR, may be relevant for unraveling the intricate evidence and bringing out the true facts. PW‑8 stated that on 8 July 2000, the date of occurrence, he was posted as Head Moharrir at Tikonia Police Station and that on the same day he registered the FIR as Case Crime No. 41‑200 under Section 302 against the accused persons based on the written complaint of Santosh Gupta, but he did not mention any protest or dharna being organised on that date. However, during cross‑examination he unequivocally stated that the Rail Roko dharna (protest) was called at Tikonia Railway Station on the previous day, 7 July 2000, and that to ensure law and order, Sub‑Inspector R. N. Singh, Sub‑Inspector C. P. Bahuguna, Manoj Pandey, etc., were deputed for duty at the protest site. To buttress his statement, he referred to Report No. 12 registered at 10:05 on 7 July 2000, which is part of the original GD. He further clarified that after the protest at Tikonia railway station concluded, he registered his return on the same day, 7 July 2000, in Report No. 19 at 18:30. He denied the suggestion that the FIR was registered after a long gap of time and was shown after making improvements therein., The above statement of the prosecution witness, corroborated by documentary evidence, encompasses the entire story set up by the prosecution and raises strong suspicion regarding the holding of a dharna on the date of occurrence., Now, considering the testimony of PW‑1, if it is believed that the inquest report was drawn on 8 July 2000 at 5 p.m., after which the dead body was handed over to two police constables who, along with the witness, left by tractor to reach the District Hospital at a distance of 80 km, the witness revealed surprising answers in response to queries in cross‑examination, casting doubt on the truth., The untruthfulness multiplies when we examine the statements of hostile witnesses, namely PW‑2, PW‑4, and the statements of the inquest witnesses., PW‑2 Vinod Gupta, the hostile witness, stated in his deposition that he was acquainted with the accused Ajay Misra alias Teni, Subhash alias Mama, Dalu and Pinky before the occurrence. He stated that Ajay Misra was a worker of the Bharatiya Janata Party and the other three persons were engaged in business at Tikonia. Ajay Misra’s house was situated in Tikonia and his mill (factory) was located in the village of Banbirpur. Before the incident, he was State Secretary of the Samajwadi Yuvajan Sabha, and the deceased Prabhat Gupta was State Secretary of his own party., Narrating the incident, he stated that at 3 p.m. he went to Tikonia in connection with his business but changed his mind and decided to meet the deceased Prabhat Gupta, whom he found on the road while going to his shop from his house, and he was also proceeding towards the deceased’s house to meet him.
id_1409	1	He further deposed that before he met the deceased, he had seen the accused walking near the State Bank. As soon as Prabhat came on the road, the accused persons started abusing him and they all exhorted to kill the deceased. According to him all the accused were carrying firearms. The deposition, which at the first instance seems to have led the prosecution to declare him hostile, is that he unambiguously stated that two gunshots were fired on the deceased by Subhash alias Mama while others were abusing and exhorting to do away with the deceased. According to him the accused assailant had also abused him and threatened his life. After sustaining the gunshot, he stated that Prabhat collapsed on the spot; only then out of the four assailants two ran away in one direction and two towards the other direction. A bare reading of the aforesaid deposition shows that Prosecution Witness 2, who is claimed to be an eye‑witness of the prosecution, has stated that it was Subhash alias Mama who fired both the gunshots on the deceased, causing fatal injuries and resulting in death on the spot. In the entire prosecution case there is no mention of any third gunshot fired by anyone, though it is said that all the assailants were armed with guns. On the other hand, the informant, who was admittedly not an eye‑witness, deposed that the first gunshot was fired on the temple of the deceased by Ajay Misra alias Teni while the second was fired by Subhash alias Mama. This statement was based on the information received from Prosecution Witness 3 (Sanjeev) and Prosecution Witness 2 (Vinod). Vinod Gupta (Prosecution Witness 2), the eye‑witness who is alleged to have given the information of the incident to Prosecution Witness 1, has stated that both the gunshots were fired by Subhash alias Mama, and this fact has been conveniently discarded by the prosecution by declaring Prosecution Witness 2 as hostile. Thus, there appears to be a material discrepancy in the testimony of both named eye‑witnesses, regarding the number of accused who fired the gunshots and the manner and direction in which they ran away., In a recent judgment rendered in the case of Rajesh Yadav and another v. State of Uttar Pradesh, reported in 2022 Supreme Court Cases Online Supreme Court 150, the Supreme Court of India dealt with the term hostile witness and specifically observed that a court is well within its powers to make an assessment of the matter, which includes the statement of a hostile witness for reaching a correct conclusion. Relevant paragraphs 21 and 22 of the judgment are reproduced as follows:, 21. The expression hostile witness does not find a place in the Indian Evidence Act. It is coined to mean testimony of a witness turning to depose in favour of the opposite party. A witness may depose in favour of a party during his chief examination and later change his view in favour of the opposite side. Similarly, there are cases where a witness does not support the case of the party from the beginning. This classification has to be borne in mind by the Supreme Court of India. With respect to the first category, the Supreme Court of India is not denuded of its power to make an appropriate assessment of the evidence rendered by such a witness. Even a chief examination could be termed as evidence. Such evidence becomes complete after cross‑examination. Once evidence is completed, the testimony as a whole is meant for the court to assess and appreciate as a fact. Therefore, not only the specific part in which a witness has turned hostile but also the circumstances under which it happened can be considered, particularly where the chief examination was completed and there are circumstances indicating the reasons behind the subsequent statement, which could be deciphered by the court. It is well within the powers of the Supreme Court of India to make an assessment and come to the correct conclusion., 22. On the law laid down in dealing with the testimony of a witness over an issue, we rely on the decision of this Court in C. Muniappan v. State of Tamil Nadu, (2010) 81. It is a settled legal proposition that: the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross‑examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but can be accepted to the extent their version is found to be dependable on careful scrutiny thereof. (Vide Bhagwan Singh v. State of Haryana, (1976) 1 Supreme Court 389; Rabindra Kumar Dey v. State of Orissa, (1976) 4 Supreme Court 233; Syad Akbar v. State of Karnataka, (1980) 1 Supreme Court 30; Khujji v. State of Madhya Pradesh, (1991) 3 Supreme Court 627, Supreme Court p. 635, para 6.), In State of Uttar Pradesh v. Ramesh Prasad Misra [(1996) 10 Supreme Court 360: 1996 Supreme Court (Criminal) 1278] this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but must be subjected to close scrutiny, and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra [(2002) 7 Supreme Court 543: 2003 Supreme Court (Criminal) 112], Gagan Kanojia v. State of Punjab [(2006) 13 Supreme Court 516: (2008) 1 Supreme Court (Criminal) 109], Radha Mohan Singh v. State of Uttar Pradesh [(2006) 2 Supreme Court 450: (2006) 1 Supreme Court (Criminal) 661], Sarvesh Narain Shukla v. Daroga Singh (Criminal) 188 and Subbu Singh v. State [(2009) 6 Supreme Court 462: (2009) 2 Supreme Court (Criminal) 83]. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law can be used by the prosecution or the defence., Similarly, in the case of Arjun and another v. State of Chhattisgarh reported in (2017) 3 Supreme Court 247, the following observations were made in paragraphs 15 and 16 of the judgment: 15. Though the eye‑witnesses Prosecution Witnesses 1, 2, 7 and 8 were treated as hostile by the prosecution, their testimony regarding the place of occurrence and presence of accused in the place of the incident and their questioning as to the cutting of the trees and two accused surrounding the deceased with weapons is not disputed. The trial court as well as the High Court rightly relied upon the evidence of Prosecution Witnesses 1, 2, 7 and 8 to the extent of corroborating the evidence of Prosecution Witness 6 Shivprasad. Merely because the witnesses have turned hostile in part, their evidence cannot be rejected in toto. The evidence of such witnesses cannot be treated as effaced altogether but can be accepted to the extent that their version is found to be dependable, and the court shall examine more cautiously to find out the extent to which they have supported the case of the prosecution. 16. In Paramjeet Singh alias Pamma v. State of Uttarakhand (2010) 10 Supreme Court 439, it was held that the fact that the witness was declared hostile at the instance of the Public Prosecutor and was allowed to be cross‑examined furnishes no justification for rejecting the evidence en bloc. However, the court has to be very careful, as prima facie a witness who makes different statements at different times has no regard for the truth. His evidence has to be read and considered as a whole to determine whether any weight should be attached to it. The court should be slow to act on the testimony of such a witness; normally, it should look for corroboration to his testimony. (Vide State of Rajasthan v. Bhawani (2003) 7 Supreme Court 291.), This Court, while deciding the issue in Radha Mohan Singh v. State of Uttar Pradesh (2006) 2 Supreme Court 450, observed: 7. It is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross‑examine him. The evidence of such a witness cannot be treated as effaced or washed off the record altogether but can be accepted to the extent his version is found to be dependable on careful scrutiny thereof., In Mahesh v. State of Maharashtra (2008) 13 Supreme Court 271, this Court considered the value of the deposition of a hostile witness and held: 49. If Prosecution Witness 1, the maker of the complaint, has chosen not to corroborate his earlier statement made in the complaint and recorded during investigation, the conduct of such a witness for no plausible and tenable reasons pointed out on record will give rise to doubt about the testimony of the investigating officer who had sincerely and honestly conducted the entire investigation. In these circumstances, we are of the view that Prosecution Witness 1 has tried to conceal the material truth from the Court with the sole purpose of shielding and protecting the appellant for reasons best known to the witness and therefore, no benefit could be given to the appellant for the unfavourable conduct of this witness to the prosecution., In Rajendra v. State of Uttar Pradesh (2009) 13 Supreme Court 480, this Court observed that merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. This Court reiterated a similar view in Govindappa v. State of Karnataka (2010) 6 Supreme Court 533, observing that the deposition of a hostile witness can be relied upon at least up to the extent he supported the case of the prosecution. In view of the above, it is evident that the evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out the extent to which he has supported the case of the prosecution. The same view is reiterated in Mrinal Das and Ors. v. State of Tripura (2011) 9 Supreme Court 479, para 67, and also in Khachar Dipu alias Dilipbhai Nakubhai v. State of Gujarat (2013) 4 Supreme Court 322, para 17., The use of the term small weapons is also vague and appears calculated to create corroboration between the statements of Prosecution Witness 1 and Prosecution Witness 4 and to show ignorance about the name and description of the firearm. Prosecution Witness 4 stated that the firearm could be a revolver or pistol, but Prosecution Witness 2, regarding the identity of the weapon, only used the term pistol. The declaration of Prosecution Witness 2 as hostile insofar as the identity of the persons who fired the gunshot creates suspicion, especially because the empty cartridges recovered from the site were not sent for forensic examination, which could have revealed the firearm from which they were fired. The term small weapon used by Prosecution Witness 1 and Prosecution Witness 3 becomes more interesting as, in the identification of the firearm, the term small weapon or expression of uncertainty regarding the type of firearm could have helped in controverting the report, but the mention of pistol by Prosecution Witness 2 with a certain degree of certainty further complicated the issue. Although Prosecution Witness 2 stated that Subhash alias Mama fired two pistol shots, apparently there is no recovery of any firearms from Subhash alias Mama or any accused person. Non‑recovery of the weapon is not a sine qua non for proving the guilt of any accused, but the fact remains that there is a huge contradiction in the oral witness versions as to whether the gunshots could be attributable to one accused or two accused. Moreover, two empty cartridges were found on the spot and there was no investigation as to whether they were fired by the same weapon or by different weapons. A ballistic report would have clarified this issue, but it was not obtained; the only explanation comes from Prosecution Witness 9, who said that the investigation was transferred from him to another investigator., With respect to the dharna (demonstration) held on the date of occurrence, Prosecution Witness 2 has specifically stated that there was no such demonstration on 8 July 2000, the date of occurrence, and that the protest which had been continuing for several days ended on 7 July 2000. He further stated that on that very day he and various designatories from the districts reached the place and returned to Lakhimpur at night. Another fact narrated by Prosecution Witness 2, which contradicts the deposition of Prosecution Witness 3, is that Prosecution Witness 3 stated that all the accused assailants, after committing the murder of the deceased, ran towards the same direction, whereas according to Prosecution Witness 2, out of the four assailants two ran away in one direction and two in the opposite direction., Prosecution Witness 1, in his statement, also said that he had informed the Criminal Investigation Department inspector that Anurag Patel and Vinod Gupta had come to participate in the dharna on 8 July 2000. If T.B. Singh and the investigating officer deputed after T.B. Singh had not mentioned the fact regarding the Rail Roko dharna on 8 July 2000 in his statement, he cannot tell the reason. It thus appears that the dharna was not called on 8 July 2000 but on 7 July 2000, and this truth emerged shortly after he said that Anurag Patel and Vinod Gupta had come to participate in the dharna on 8 July 2000., This fact is also fortified by the statement of Investigating Officer T.B. Singh discussed earlier in the judgment as well as the statement of Prosecution Witness 2 as aforesaid. Prosecution Witness 4 Shivkumar, whose statement under Section 161 of the Code of Criminal Procedure was read over to him, flatly refused to have given any such statement and expressed ignorance about the reason for such a statement being recorded. However, the statement of Prosecution Witness 4 recorded under Section 161, which he claimed to have discarded, is not on record before us, nor is there any explanation regarding this omission. This creates suspicion because, in the absence of the Section 161 statement, it cannot be brought to light what Prosecution Witness 4 initially deposed and what facts he denied in his cross‑examination., In his statement before the court he has stated that he knew the accused Ajay Misra alias Teni, Subhash alias Mama, Rakesh alias Dalu and Shahibhushan alias Pinky but denied having witnessed any of the accused murdering the deceased. He stated that at the time of the incident he was present in his hotel, had heard about the murder but had not seen the deceased sustaining any gunshot., In order to cover up the story regarding the distance of 90 kilometres to Lakhimpur being covered in a long 12‑hour journey on a tractor trolley for the purpose of autopsy of the dead body, Prosecution Witness 1 deposed that after getting the dead body loaded on the tractor trolley after 5 pm he came with the dead body and reached Lakhimpur at 5 am, stating that the driver of the tractor had worked in the fields throughout the day and started taking rest. This deposition regarding the delay caused by the driver resting on the way with the dead body does not inspire confidence. More interestingly, Prosecution Witness 1 stated that he did not know who the driver of the tractor trolley was, showed ignorance about the driver’s residence, and did not know whether the tractor was hired. He claimed that the tractor was brought by his son, yet neither his son nor the constable who accompanied the dead body were produced or examined. He also admitted that he had not told this fact to anyone nor was anyone asked about it. This statement is contradicted by Prosecution Witness 2, who stated that the dead body of Gupta (the deceased) was sent to Lakhimpur for post‑mortem on a DCM or Mazda Mini truck, as also supported by the testimony of both panchayat‑nama witnesses (Prosecution Witnesses 5 and 6)., From the above it is clear that ample time was consumed on the way while travelling to Lakhimpur and during this period the witnesses sketched out the narration to be deposed by them so as to avoid any contradiction and to make out a foolproof case to entrap the accused Ajay Misra alias Teni in the commission offence. To their dismay Prosecution Witness 2 spilled the beans, and their annoyance with Prosecution Witness 2 resulted in his declaration as a hostile witness., From consideration and appraisal of the statements of the hostile witnesses Prosecution Witness 2 and Prosecution Witness 4, it appears that the facts deposed by the hostile witnesses, which were not in keeping with the statements of other witnesses and were not in keeping with the case set up by the prosecution, could have, in all probabilities, weakened the implication of convict respondent Ajay Mishra alias Teni. In order to allay this apprehension the two key witnesses were declared hostile., The hostile witness Prosecution Witness 4, who is stated to be running a hotel near the place of occurrence, denied that his statement under Section 161 was ever taken. He might have done so under some threat or in order to save his skin and distance himself from a case of murder involving major political parties., In the judgment rendered by the Supreme Court of India in the case of Masalti v. State of Uttar Pradesh, AIR 1965 Supreme Court 202, the Court observed: \Under the Indian Evidence Act, trustworthy evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction. That, no doubt, is true; but where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. In a sense, the test may be described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable.\, Likewise, in the case of Balaka Singh v. State of Punjab, AIR 1975 Supreme Court 1962, the Supreme Court of India observed: \It is true that, as laid down by this Court in Zwinglee Ariel v. State of Madhya Pradesh, AIR 1954 Supreme Court 15, and other cases which have followed that case, the Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation the Court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply.\, In another case, namely, Ugar Ahir and others v. State of Bihar, AIR 1965 Supreme Court 277, the Supreme Court of India while dealing with the maxim falsus in uno, falsus in omnibus, made the following observations: \The maxim falsus in uno, falsus in omnibus (false in one thing, false in every thing) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the Court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest.\, To the same effect is a recent judgment passed by the Supreme Court of India in Arvind Kumar alias Nemichand and others v. State of Rajasthan (2021 Supreme Court Online Supreme Court 1099), wherein Justice M.M. Sundresh, speaking for the bench, crystallised this principle as follows: 49. The principle that when a witness deposes falsehood, the evidence in its entirety has to be eschewed may not have strict application to criminal jurisprudence in our country. The principle governing sifting the chaff from the grain has to be applied. However, when the evidence is inseparable and such an attempt would either be impossible or would make the evidence unacceptable, the natural consequence would be avoidance. The said principle has not assumed the status of law but continues only as a rule of caution. One has to see the nature of discrepancy in a given case. When the discrepancies are very material, shaking the very credibility of the witness leading to a conclusion in the mind of the court that it is neither possible to separate nor to rely upon, it is for the court to either accept or reject., Findings: On a careful analysis of the evidence available on record, we do not find that the statement of star witness Prosecution Witness 3 about the meeting of Prosecution Witness 2 at his house can be believed to be true; therefore the testimony of Prosecution Witness 3 that he met at the house and accompanied Prosecution Witness 2 after having a meal remains doubtful. The fact of the dharna was introduced to make the presence of Prosecution Witness 2 at the house of the informant appear natural, but the truth is that no such dharna was called on 08 July 2000, as corroborated by the statement of Prosecution Witness 2. Further, Prosecution Witness 3 was present along with the informant/Prosecution Witness 1 at the time of lodging of the FIR; this fact has been noted in the G.D., however his statement was not recorded at that time, but only on 10 July 2000. Although delay in recording the statement of an eye‑witness may not be fatal to the prosecution story, the delay must be viewed cautiously in light of other overwhelming factors such as the statement of Prosecution Witness 2, another eye‑witness named in the FIR, which is starkly different from the testimony of Prosecution Witness 3. The statements of both eyewitnesses are at variance regarding the gunshots: Prosecution Witness 3 names both Ajay Misra alias Teni and Subhash alias Mama as assailants, whereas Prosecution Witness 2 names only Subhash alias Mama as assailant. There is also material discrepancy in the version of how the accused persons fled the place. Prosecution Witness 3 says that four accused persons ran away toward the Old Kotwali, whereas Prosecution Witness 2 says that two fled in one direction and the other two in the opposite direction. It has also come in evidence of Prosecution Witness 2 that he told Prosecution Witness 3 about the incident and that Prosecution Witness 3 reached the spot after the deceased was done away. Further, Prosecution Witness 3 claimed that he, the deceased and Prosecution Witness 2 had meals at the house of the deceased, whereas Prosecution Witness 2 says that he met the deceased at the place of occurrence and never went to the deceased’s house for meals. This court cannot be oblivious to the fact that the story of having meals, as put forth by Prosecution Witness 3 and Prosecution Witness 1, is also at variance with the testimony of Prosecution Witness 8 and the post‑mortem report, which says that nothing was found in the stomach of the deceased and that the deceased would have had meals at least 5‑6 hours before sustaining the fatal injury. Thus, the story of having a meal together by Prosecution Witness 2 and Prosecution Witness 3 with the deceased at the house of Prosecution Witness 1 is also highly unlikely., Besides Prosecution Witnesses 3 and 2, the other eye‑witness of the incident as per the prosecution story is stated to be Prosecution Witness 10. Admittedly, Prosecution Witness 10 is not named as an eye‑witness in the FIR, although his name was known to the informant prior to lodging of the FIR. It has come in the testimony of Prosecution Witness 1 that on the spot of occurrence some persons including Shiv Kumar (Prosecution Witness 4) and Jagdish Prasad (Prosecution Witness 10) told him about the incident. Apparently, the statement of Prosecution Witness 1 makes both Prosecution Witness 4 and Prosecution Witness 10 eye‑witnesses to the incident, but neither was named as an eye‑witness in the FIR nor were their statements recorded immediately. Prosecution Witness 4 stated in his evidence that he reached the place of occurrence after 20 minutes, did not support the case of the prosecution and was therefore declared hostile, whereas Prosecution Witness 10, having worked for the last 20 years in the shop of the real brother‑in‑law of the informant, supported the case of the prosecution. However, the statements of both Prosecution Witness 4 and Prosecution Witness 10 were recorded only after two months on 03 September 2000. This delay is unexplainable and it is also not explained why Prosecution Witness 10 was not named in the FIR as an eye‑witness. Further, Prosecution Witness 10 in his statement says that he saw Prosecution Witness 3 along with one other person coming to the place of occurrence and, on seeing the gunshot, ran away to their house, whereas Prosecution Witness 3 has deposed that after the gunshot he came to the spot, saw his brother dead and thereafter rushed to his house to tell the informant (Prosecution Witness 1). Thus, there are marked variances in the testimony of the witnesses. All these facts do not inspire confidence in the statement of Prosecution Witness 10, which also shows that he was not present at the time of the incident. Inordinate delay in recording his statement vitiates the investigation and creates serious doubt about the correctness of his statement. Reliance is placed on (1971) 3 Supreme Court 192 (Balakrushna Swain v. State of Odisha), (1976) 4 Supreme Court 288 (State of Odisha v. Mr. Brahmananda Nanda), (1978) 4 Supreme Court 371 (Ganesh Bhavan Patel and another v. State of Maharashtra), (2016) 16 Supreme Court 418 (Harbeer Singh and another v. Sheeshpal and others)., Apparently the Trial Court has returned a finding that the FIR is ante‑timed for cogent reasons. Anurag Patel, the scribe of the FIR and Prosecution Witness 2 are residents of Lakhimpur, which is at a distance of 80 kilometres from the place of incident. The theory of dharna pradarshan on 08 July 2000 could not be proved by the prosecution. The presence of Anurag Patel and Prosecution Witness 2 is attributable to dharna pradarshan; otherwise their presence at the place of occurrence would be highly unlikely. Thus, when the theory of dharna pradarshan failed, obviously both Prosecution Witness 2 and Anurag Patel would have been called from Lakhimpur after 3 pm, i.e., after the incident. Hence, the FIR could not have been lodged at 3:30 pm, whose scribe is Anurag Patel., Further, both panchayat‑nama witnesses, Prosecution Witnesses 5 and 6, have stated in their testimony that the panchayat‑nama was prepared by gas‑light at 11 pm at night as the informant was somewhere outside. Prosecution Witness 6 also repeated the same story and additionally told that at the time of the panchayat‑nama the Member of Legislative Assembly of Lakhimpur, Kaushal Kishore, and several other leaders including Prosecution Witness 2 arrived from Lakhimpur. He also said that after the panchayat‑nama the body of the deceased was taken for post‑mortem on a vehicle that belonged to the deceased. Evidently, it has come on record that the body reached Lakhimpur for post‑mortem at 5 am on 09 July 2000. However, when Prosecution Witness 1 was asked about the aspect of taking the body for post‑mortem, although he says that the body was taken after the panchayat‑nama at about 5 pm on a tractor, he was neither able to recall the name nor the manner in which the vehicle was brought. This fact also seems to be a fabricated story of Prosecution Witness 1, as firstly both Prosecution Witnesses 5 and 6 have stated that Prosecution Witness 1 was somewhere outside and the panchayat‑nama was delayed because of the delay in coming of Prosecution Witness 1 and a certain politician who had to come from Lakhimpur. Secondly, the distance between the place of occurrence and Lakhimpur is 80 km and Prosecution Witness 1 could not explain how and in what manner the tractor could have taken 12 hours to travel a short distance of 80 km, and that too with a dead body. There are no cogent reasons to not believe the testimony of Prosecution Witness 5.
id_1409	2	Further, from the testimony of Party Witness 5 and Party Witness 6, the presence of Party Witness 2 at the place of occurrence also becomes highly improbable as it has come in evidence that Party Witness 2 is a politician based in Lakhimpur and he did not have any business to be done at the place of occurrence on the fateful day, especially when there was no dharna pradarshan on that particular day. The entire facts apparently seemed to be a cooked up story. Party Witness 2 apparently seems to be planted as a witness and that is why the story of dharna pradarshan was brought into the picture, which miserably failed. Unfortunately, Party Witness 2 although declared hostile, has already spilled the beans and he stated in his evidence that Party Witness 3 was not on the spot of occurrence, but it is he who has told Party Witness 3 about the incident when he reached the place of occurrence. When the very presence of Party Witness 2 becomes doubtful the entire story of the prosecution based on the testimony of hearsay evidence of Party Witness 3 and Party Witness 1 also crumbles down., Further, according to the site‑plan, the gun‑shot fires were made from the range of within one step by the accused persons. If the same is considered to be correct, then certainly black‑lining and charring must have been on the deceased, but the post‑mortem report does not reveal any such blackening or charring. According to the statement of Party Witness 7, fires were not made from close range because around the wounds there was no black‑lining and charring. According to him, the gunshot ought to have been fired from a distance. Thus, the testimony of Party Witness 2, Party Witness 3 and Party Witness 10 relating to firing of gunshot falls flat as they are at variance to the scientific report., Moreover, it has come in evidence that one bullet was found inside the body of the deceased. If the bullet could not pass through the body, this shows that the velocity of the bullet was not very high. This further shows that it was not possible to cause such injury from a distance of one step or, for that matter, from three to four steps. Apparently, if fire is made from a close range of one step, the entrance wound would be big whereas a fire made from a distant range the wound would be smaller in size. In the present case, as per the statement of Party Witness 9, the entry wound is of two categories, one being of 0.5 × 0.5 cm and another of 1 cm × 1 cm in size which demonstrates that the story of firing from a distance of merely one step is highly unlikely and impossible., In Noor Khan v. State of Rajasthan (1964) 4 SCR 521 the Court held: “There is discrepancy between the estimates given by the witnesses about the distance from which the fatal shot was fired by Noor Khan. Witnesses have estimated this distance as varying between 8 and 15 pounds – each pound being equal to a step, or two feet. It appears however from the appearance of the injury and especially the charring and blackening of the wound of entry that the barrel of the gun could not have been at a distance exceeding 3 or 4 ft.”, Similarly, in Janak Singh v. State of Uttar Pradesh (1973) 3 SCC 50 the Court opined: “The third contention was the one which Mr Dixit elaborated. His proposition was that the medical testimony contradicted the eyewitnesses' version and that contradiction rendered their account unacceptable. According to Dr. Ghosh's evidence, none of the three entry wounds showed any blackening or tattooing. Obviously, therefore, the firing did not take place from a very close range but from some distance at least. No doubt, the three eyewitnesses gave different distances ranging from two to six paces. But they could hardly be expected to have marked at the time the precise distance at which the person shooting the firearm was. They, therefore, gave an estimate of the distance at which he was from the victim. It is no wonder that the distances they deposed varied. Nothing can therefore turn on such variation.”, In A.N. Chandra v. State of Uttar Pradesh (1990) Supp SCC 717 the Supreme Court of India held: “If the gun was fired from such a close range, there should have been blackening and tattooing but the doctor has not noted any such sign around the injuries. Further the direction of the injuries was from upside to downward and there was a dispersal of the wounds. If the gun was fired from a close range there could not have been such dispersal of the wounds. Further, we are unable to understand as to why the gun was kept loaded already.”, The Supreme Court of India in Swaran Singh v. State of Punjab (2000) 5 SCC 668 in paragraph 25 held that: “The evidence of Party Witness 1 and the post‑mortem reports was to the effect that the single wound on the right side of the chest of Shamsher Singh and several wounds on Amar Singh were blackened. Blackening is caused by smoke deposit. Smoke particles are light. They do not travel far. Therefore, smoke deposit, i.e., blackening is limited to a small range.” In the instant case, the entry wound of the deceased does not show any blackening; the doctor had opined that the gunshot must have been caused from a distance. If we examine this finding on the basis of analysis made by the Supreme Court of India, we cannot hold that the prosecution story that the gunshot injury was caused from a distance of merely one step is trustworthy. Thus, keeping in view the aforesaid observations of the Supreme Court of India vis‑à‑vis the opinion of the doctor, the gunshots must have been made from a distance of more than six feet., Apparently, it has also come on record that dharna pradarshan had been introduced at a later stage, just to show the presence of Anurag Patel and Vinod Gupta (Party Witness 2). Party Witness 3 Sanjeev Gupta stated that the shop was not opened due to dharna pradarshan. Hence, the case of FIR that the deceased was going to the shop becomes untrue and since the happening of dharna pradarshan has also not been proved, the presence of both the ocular witness Party Witness 3 Sanjeev Gupta and Party Witness 2 Vinod Gupta with the deceased on the spot is not proved as the manner in which this presence has been told is not proved., Hence, the presence on the spot of both the witness Party Witness 3 Sanjeev Gupta and Party Witness 2 Vinod Gupta is doubtful and not proved. So, hardly their statement can be taken into account. The deceased was done to death on the spot. Thus, the theory that some unknown assailants came and fled after committing murder of the deceased on a motorcycle, as has come in evidence of Party Witness 9 and also stated by Party Witness 4 and Party Witness 10 to Party Witness 1 at the time of Panchayatnama, appears to be a probable story and implication of the accused persons may be on account of rivalry and also on the basis of suspicion that these accused persons may have a hand in the murder. However, suspicion cannot take the place of proof. Recently, by a judgment dated 11.08.2022, a bench of Justice B. R. Gavai and P. S. Narasimha held that it is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proven guilty beyond a reasonable doubt, in the case of Criminal Appeal No. 25 of 2012 (Ram Niwas v. State of Haryana)., Thus, the Sessions Court rightly disbelieving the prosecution story has acquitted all the accused persons. It would be profitable to quote a judgment of the Supreme Court of India in the case of Krishnegowda & Ors. v. State of Karnataka (2017) 13 SCC 98, wherein the apex court held: “It is to be noted that all the eyewitnesses were relatives and the prosecution failed to adduce reliable evidence of independent witnesses for the incident which took place on a public road in broad daylight. Although there is no absolute rule that the evidence of related witnesses has to be corroborated by the evidence of independent witnesses, it would be trite in law to have independent witnesses when the evidence of related eyewitnesses is found to be incredible and not trustworthy. The minor variations and contradictions in the evidence of eyewitnesses will not tilt the benefit of doubt in favour of the accused but when the contradictions in the evidence of prosecution witnesses prove to be fatal to the prosecution case then those contradictions go to the root of the matter and in such cases the accused gets the benefit of doubt. It is the duty of the Court to consider the trustworthiness of evidence on record. As said by Bentham, witnesses are the eyes and ears of justice. In the facts on hand, we feel that the evidence of these witnesses is filled with discrepancies, contradictions and improbable versions which draws us to the irresistible conclusion that the evidence of these witnesses cannot be a basis to convict the accused.” Conclusion: This Supreme Court of India finds that all the aforesaid aspects have been considered threadbare by the Sessions Court. The evidence recorded in the present case has been appreciated in its correct perspective and the Sessions Court has at no point of time missed the woods of the tree. Thus, we do not find any perversity in the order of acquittal passed by the Sessions Court and in any case, the law presumes double presumption in favour of the accused after a due adjudication by the Sessions Court. Further, on recording of the findings as aforesaid, we find that the prosecution has utterly failed to establish the chain of events which can be said to exclusively lead to the one and only conclusion, i.e., the guilt of the accused persons. In that view of the matter, we find that the judgment and order of the learned Sessions Judge to be a plausible and sustainable view, especially when the Sessions Court had the advantage of seeing and assessing the demeanour of witnesses., This Supreme Court of India has also recorded its independent finding and holds that the theory put forth by the prosecution that the four accused persons were liable for causing death of the deceased is unconvincing and shorn of evidence proved beyond reasonable doubt., As a sequel to the above, the appeal as well as the revision are therefore dismissed. The judgment and order of acquittal dated 29.03.2004 in Sessions Trial No. 518/2001, under section 302/34 IPC, acquitting all the accused/respondents is upheld and all the accused/respondents are acquitted of the charges levelled against them. The bail bonds, if any, shall stand.
id_1410	0	Criminal Case No. 07/2019 CNR No. DLCT12000332019 Surender Kumar Sharma versus Arvind Kejriwal and others. ID No. 07/2019 CNR No. DLCT12000332019. Date of commission of offence: 14 October 2013. Date of institution of the case: 26 October 2013. Name of the complainant: Shri Surender Kumar Sharma, son of Late Shri Narender Nath Sharma, resident of House No. 159-A, Street Ganga Ram, Taliwara, Shahdara, Delhi. Names of accused persons and addresses: Shri Arvind Kejriwal, Founder and Member of Aam Aadmi Party; Shri Manish Sisodia, Spokesperson and Member of Aam Aadmi Party; Shri Yogender Yadav, Member of Aam Aadmi Party. All having office at A-119, Kaushambi, Uttar Pradesh. Offence complained of: Section 500 of the Indian Penal Code. Plea of the accused: pleaded not guilty. Final order: acquitted. Date of judgment: 20 August 2022., People also will speak of your unending infamy. And to an honoured person infamy is worse than death. The concept of reputation is known in society perhaps since the time civilization itself established. The above quoted text from an ancient Indian Sanskrit epic Bhagavad Gita dates back to the second century CE highlighting the importance of a person's reputation. Even today, in modern India, governed by its Constitution, the right to reputation has been embedded as one of the fundamental rights covered under the larger concept of the right to life. Hence, undoubtedly, since time immemorial, Indian society identifies reputation as a person's most prized possession and it holds even more importance for persons who are in the profession of public dealing, viz. advocates and politicians alike., The case at hand is one such case where a practising advocate, also claiming to be a social activist, came to the Delhi High Court alleging that members of a leading political party, i.e., Aam Aadmi Party, tarnished his reputation and defamed him so much that he suffered immense mental agony, loss of respect in society and financial losses. This case emanated at a time when Aam Aadmi Party was still establishing itself in mainstream politics with the main motto of giving a corruption‑free government. While the complainant claims that in the alleged defamatory newspaper articles he has been falsely presented as a person with a criminal record and doubtful credentials, the accused persons, while disowning the news publication, have taken a defence of truth for public good. The detailed facts of the case, evidence led by the parties, relevant law on the subject of defamation and the result of this litigation are discussed in the following pages., This judgment decides and disposes of a defamation case filed in 2013 by Shri Surender Kumar Sharma, advocate, Shahdara Bar Association (hereinafter complainant) against three persons: Shri Arvind Kejriwal, presently the Chief Minister of Delhi and convener/founder of Aam Aadmi Party (accused No. 1); Shri Manish Sisodia, presently Deputy Chief Minister of Delhi and then Member of the Political Affairs Committee of Aam Aadmi Party (accused No. 2); and Shri Yogender Yadav, then Member of the Political Affairs Committee of Aam Aadmi Party (accused No. 3). It is pertinent to note that before the trial could be concluded, the complainant died on 1 November 2020 and therefore the trial was continued by the substituted complainant, Shri Yogesh Kumar Gaur, nephew of the original complainant and an advocate by profession., Before noting the Delhi High Court proceedings which culminated the trial, it is necessary to peruse the contents of the complaint filed by the complainant. The complaint is briefly reproduced in the following paragraphs., The complainant states that he has been an advocate by profession and a member of Shahdara Bar Association since 1989 and had been Honorary Secretary of the Shahdara Bar Association for several years, having an unblemished political career. He further claimed that he had been a social worker and had addressed the problem of scarcity of water in the trans‑Yamuna area by filing writ petitions before the Honourable High Court of Delhi., As per the complaint, volunteers of Aam Aadmi Party approached the complainant in the second week of June 2013 and told him that accused No. 1 was impressed by the social services provided by the complainant and had asked them to seek an application form from the complainant for contesting the elections of MLA on its ticket from Shahdara constituency., Allegedly on 28 June 2013, the complainant submitted his application form for contesting as an MLA from Shahdara constituency on the ticket of Aam Aadmi Party, whereafter he was interviewed by its Political Affairs Committee and finally on 16 July 2013 he was shortlisted. The official press release in this regard was published in several esteemed newspapers of the country. He also stated that on 23 July 2013 the accused persons sought an explanation from the complainant with respect to his long‑standing property dispute., The complainant further alleges that on 20 July 2013 he received a call from the office of accused No. 1 directing him to reach his residence at House No. 403, Girnar Apartments, Kaushambi, Uttar Pradesh, where he went along with his nephew Yogesh Kumar Gaur. He was told that Aam Aadmi Party had decided to give him the ticket for contesting the MLA elections from Shahdara constituency. Photographs of the complainant were taken by a photographer of accused No. 1 and he was told that his name would be published in the newspapers the next day., Further, the complainant claims that on 22 August 2013 he was called to the office of the accused persons at A-119, Kaushambi, Uttar Pradesh where he met other shortlisted candidates, namely Shri Naveen Chauhan and Shri Kanwal Singh Rawat, and all three were called into the official room where accused No. 2 along with accused No. 3 told the complainant that the Political Affairs Committee had decided to give him the ticket. A press release regarding the official announcement of the complainant’s candidature from Shahdara constituency was published in leading newspapers and consequently the complainant started his campaign as a candidate for MLA, Shahdara constituency by pasting banners, putting up hoardings and distributing pamphlets in wards 237, 238, 239 and 240. Accused No. 1 had sent 20,000 copies of a letter containing the achievements of the complainant, which were also distributed during the campaign. The complainant states that at the instance of the accused persons he spent Rs 5,00,000 from his own pocket on the campaigning., On 1 September 2013, after the General Body Meeting of Shahdara Bar Association, the complainant was appointed as the Chairman of its Election Committee to conduct the Bar elections to be held on 1 October 2013. On 1 October 2013, while conducting the elections, at around 3.00 pm some disgruntled elements of the Bar and non‑advocates from outside dismantled the election process; as a result the elections were stopped midway and with the assistance of police as well as senior members of the Bar, the ballot papers were sealed under the seal of the complainant., On 5 October 2013, the General Body Meeting of the Bar decided that the elections conducted on 1 October 2013 be cancelled and that the complainant, continuing as Chairman of the Election Committee with the assistance of ten additional senior members of the Bar, would conduct a re‑poll on 11 October 2013. Notices were issued to the members of the Bar. The elections were conducted and the result was issued under the signature of the complainant, and the newly elected Secretary of the Bar Association issued a certificate to the complainant for conducting free and fair elections on 11 October 2013., The complainant’s grievances with respect to his alleged defamation came to the fore on 14 October 2013 when he read newspaper articles in leading Hindi and English newspapers pertaining to his replacement as the candidate of the MLA seat from Shahdara constituency on the ticket of Aam Aadmi Party. The newspaper reports quoted by the complainant are reproduced below: (i) AAP replaces candidate with ‘criminal’ record (reported in Hindustan Times); (ii) AAP fires Shahdara candidate (reported in Times of India). The reports stated that the party acted after reports of criminal charges against him and that many Shahdara Bar Association members had complained about the unfair role played by the complainant during the Bar election. The Political Affairs Committee felt that he was not a fit candidate to represent Aam Aadmi Party in the Delhi Assembly elections and thus his candidature was cancelled unanimously. The complainant’s nephew and election manager, Yogesh Gaur, claimed that none of the charges were proved and that they would take legal action against AAP for defamation, stating that there was no charge‑sheet against the complainant in any of the cases in July., Allegedly, similar derogatory and defamatory language was also published by the accused persons in other daily leading newspapers, i.e., Hindustan Times (Hindi) and Rashtriya Sahara on 14 October 2013., The complainant alleges that the derogatory and defamatory words published in the newspapers have lowered his image and reputation at the Bar as well as in the eyes of the general public and society at large. The language of the accused persons caused mental trauma to the complainant and his family members and also affected his advocacy business and that of his nephew Yogesh Kumar Gaur. Most of their litigants stopped approaching them because of the defamation., The complainant’s case is that neither he nor any of his family members have ever been charge‑sheeted or convicted under any provision of law and they have a great image and reputation in society. He alleges that the accused persons have committed the offences in furtherance of a common intention to cheat and defame the complainant and his family members and have destroyed the goodwill and image of the complainant., Therefore, the complainant prayed for lawful action against the accused persons for offences under Sections 120‑B, 420, 499, 500 and 34 of the Indian Penal Code., The complaint was received by the Delhi High Court on 26 October 2013 and on the same day, after taking cognizance of the alleged offence, the matter was put up for presummoning of the complainant’s evidence., In order to establish his case for summoning of the accused persons, in his pre‑summoning evidence the complainant examined two witnesses, namely CW‑1 Shri Surender Kumar Sharma (the complainant himself) and CW‑2 Shri Mohd Saleem. After examination of both witnesses, the Delhi High Court heard arguments on the point of summoning the accused persons and conducted enquiries under Section 202 of the Criminal Procedure Code with regard to pending criminal cases or civil disputes against the complainant at the time of commission of the alleged offence of defamation (order dated 29 January 2014) as well as with regard to the press release containing the alleged defamatory contents (order dated 5 March 2014) which form the basis of this case., By order dated 17 April 2014, the Delhi High Court summoned the accused persons Shri Arvind Kejriwal (accused No. 1), Shri Manish Sisodia (accused No. 2) and Shri Yogender Yadav (accused No. 3) for the offence punishable under Sections 499, 500 and 34 of the Indian Penal Code. Upon their appearances, the accused persons were admitted to bail and after exploring possibilities of settlement, the matter was listed for framing of notice. The notice of accusation under Section 251 of the Criminal Procedure Code was served upon accused No. 1 and No. 2 through their counsel on 22 March 2019 and upon accused No. 3 on 29 April 2019. All the accused persons pleaded not guilty and claimed trial., After serving the notice of accusation, the matter was taken up for post‑notice complainant’s evidence. The complainant examined twelve witnesses in total, including CW‑1 and CW‑2, who were recalled for cross‑examination after their examination in presummoning evidence., CW‑1 Shri Surender Kumar Sharma, the complainant, testified that he is an advocate by profession and that writ petitions filed by him before the Honourable High Court of Delhi solved the water crisis in the entire trans‑Yamuna area. He exhibited certified copies of the orders passed by the High Court and newspaper clippings. He stated that after finalisation of his candidature from Aam Aadmi Party for MLA from Shahdara constituency, he started his election campaign, pasting banners, putting up hoardings and distributing pamphlets. Accused No. 1 had sent him 20,000 copies of a letter containing his achievements, which were distributed during the campaign. He spent approximately Rs 5,00,000 from his own pocket., He further deposed that on 1 September 2013 he was appointed Chairman of the Election Committee of the Bar Association. On 1 October 2013, during the election, at around 3.00 pm some disgruntled elements of the Bar and non‑advocates dismantled the election process, leading the elections to be stopped midway and the ballot papers to be sealed. On 5 October 2013, the General Body Meeting declared the 1 October election null and void and resolved that a re‑poll be conducted on 11 October 2013 with the assistance of ten additional senior members of the Bar. Notices dated 5 October 2013 and 8 October 2013 were issued. The re‑poll was conducted peacefully on 11 October 2013 and the result was declared on 12 October 2013; a certificate for conducting peaceful and fair elections was issued to him., On 14 October 2013 he came across alleged derogatory and defamatory language against him in leading newspapers including Hindustan Times (English and Hindi), Times of India and Rashtriya Sahara. He testified that the accused persons caused his reputation to be lowered at the Bar and in society, resulting in mental trauma to him and his family and adversely affecting his advocacy business., During cross‑examination, the complainant admitted that he joined Aam Aadmi Party in June 2013 and that volunteers Asha and Ravi Ahuja visited his house and gave him the application form, which he filled in his own handwriting. He admitted that he crossed column 3 of the form, which pertains to details of any pending or decided cases or FIRs against the applicant or his family members, and that he was not handed any formal letter from accused No. 1 or the party confirming the ticket. He produced documents relating to FIRs registered against him in 1994 (registered under Section 506 IPC, later quashed), 1995 (registered under Sections 341, 324, 34, later discharged), 2002 (registered under Sections 380, 448, 457, 506, 120B IPC, cancellation report filed), and another FIR in 2002 under Sections 323, 341, 506, 34, for which a cancellation report was accepted by the court. He stated that he was aware of these FIRs but did not mention them in the application form as he was not summoned as an accused in those cases., He denied that he never met accused No. 1 during that period and identified six members of the Political Affairs Committee of Aam Aadmi Party: Arvind Kejriwal, Manish Sisodia, Yogender Yadav, Pankaj Gupta, Kumar Vishwash and Sanjay Singh. He stated that his interview was taken only by accused No. 2, accused No. 3 and one Dilip Pandey. He admitted that during the enquiry under Section 202 CrPC the police filed a press release, but he had not seen any press release or interview of accused No. 2, accused No. 3 or Dilip Pandey regarding finalisation of his candidature. He denied that he himself got the letters printed for publicity and that he obtained the party ticket without formally receiving any letter from the party., Regarding the Shahdara Bar elections on 1 October 2013, he deposed that the election was stopped because some fake voters attempted to cast votes; he denied that the elections were scrapped due to unfair means or bias on his part., He admitted that he had not given any notice of this defamation case before filing it and could not produce any document showing loss of business due to the alleged defamatory publications. He was unaware of any document in which the accused personally made defamatory allegations against him., He admitted that in his pre‑summoning evidence or in the documents filed with the complaint he had not filed copies of the FIRs registered against him. Upon direction of the Delhi High Court he filed an affidavit regarding pending criminal and civil cases against him. He denied all suggestions of the learned counsel for accused No. 1 and No. 2 that the complaint is based on distorted and exaggerated facts, that the press release contents are not derogatory, or that the complaint was made to harass the party or settle personal scores., The learned counsel for accused No. 3 adopted the cross‑examination of the complainant conducted by counsel for accused No. 1 and No. 2, adding some questions. The complainant admitted that he has not moved any application against any other person except the accused persons with respect to the publication of the alleged defamatory language. He denied that accused No. 3 had any direct role in drafting or releasing the alleged defamatory newspaper articles or press release, and denied that he had threatened accused No. 3 with dire consequences upon learning that the party had not accepted his application form due to alleged wrong particulars., CW‑2 Shri Mohd Saleem, advocate, Karkardooma District Courts, deposed that the complainant has been Honorary Secretary of Shahdara Bar Association and has a good image and reputation at the Bar. He testified that in September 2013 the complainant was appointed Chairman of the election committee of Shahdara Bar Association to conduct the election for the year 2013. He further deposed that on 1 October 2013 at about 2:45 pm some unknown persons and disgruntled elements of the Bar interfered with the Bar election, after which the elections were stopped with police intervention and the ballot papers were sealed. He stated that the complainant was again appointed Chairman in the General House of the Association on 5 October 2013 and announced a re‑poll for 11 October 2013. He observed that the complainant conducted the election honestly and smoothly as per the constitution of the Bar and that no unfair means were used. He read the newspapers containing defamatory and derogatory language against the complainant and stated that the language tarnished and lowered the complainant’s reputation in the eyes of the Bar members and himself. During cross‑examination, he denied having worked with the complainant as an advocate, denied knowledge of any criminal case pending against the complainant, and stated that no proceedings were conducted by the complainant for seeking an Aam Aadmi Party ticket. He noted that no resolution was passed by Shahdara Bar Association condemning the defamatory publication and that he could not affirm any adverse effect on the complainant’s profession., CW‑3 Yogesh Kumar Gaur, advocate at Karkardooma Courts and nephew of the complainant, deposed that he has been a member of Shahdara Bar Association since 2009 and a practising advocate at District Court Complex, Karkardooma, Shahdara. He was a member of the election committee for conducting the association election on 1 October 2013. He stated that on that day at about 3:00 pm some non‑advocates, aided by gunda elements, tried to cast fake votes, leading the complainant, as Chairman of the election committee, to stop the election. He further stated that on 5 October 2013 the Bar Association decided to cancel the election held on 1 October 2013 and to conduct a re‑poll on 11 October 2013 under the complainant’s chairmanship, and that the re‑poll was conducted peacefully and the results were announced.
id_1410	1	Further, he testified that thereafter on 14 October 2013, he got information from his neighbours that the ticket of the Complainant for MLA from Shahdara Constituency had been revoked due to some allegations regarding pendency of criminal cases and also for using unfair means and violence during the course of conducting the Bar Association elections on 1 October 2013 under his chairmanship. He stated that it was quite shocking and surprising for him because he was also the campaign manager of Aam Aadmi Party for Shahdara Constituency MLA Election Campaign in 2013. He added that the Times of India, Hindustan Times, Hindustan Hindi and Rastriya Sahara newspapers, already exhibited on record, had contained very serious defamatory allegations and derogatory language against the Complainant. He stated that thereafter, it became very hard and shameful for him to face the society being the family member of Complainant and also because of being the campaign manager for Aam Aadmi Party in the Shahdara constituency. Lastly, he stated that the Complainant has been defamed in the society and before public at large by the publication of those defamatory news articles. He was duly cross‑examined by the learned counsel for all the Accused persons. During his cross‑examination he denied the suggestion that elections were adjourned due to irregularities committed by the Complainant. He stated that he got information about the denial of ticket to Complainant by Aam Aadmi Party from his neighbours namely Vinod, Ravi and Raman Sharma. Further, he stated that he had never seen any letter from Aam Aadmi Party in favour of the Complainant about the allotment of ticket for Shahdara Constituency adding to it that he got this news from various newspapers. He denied the suggestion that he was an interested witness being a close relative of the Complainant and therefore, deposing falsely., CW‑4 Bala Krishan Chatry, Record Keeper, Hindustan Times, was a summoned witness from the newspaper Hindustan Times. He exhibited on record the authority letter authorising him to produce the summoned record in the present case as Exhibit CW‑4/A. He brought copy of the original newspapers containing the news articles dated 14 October 2013 already Exhibit CW‑1/I and Exhibit CW‑1/K. The copies of original newspapers were taken on record as Exhibit CW‑4/B and Exhibit CW‑4/C respectively. Despite opportunity, he could not bring the source of said newspaper articles on the Metropolitan Magistrate Court, Karkardooma, Delhi record., CW‑5 Shri Bhagwan, Legal Assistant, Times of India, was a summoned witness from the newspaper Times of India and deposed with respect to the news article dated 14 October 2013 already Exhibit CW‑1/J which was published by Times of India. He brought copy of the original newspaper and the same was taken on record as Exhibit CW‑5/A. He deposed that he had not brought the record on the basis of which the news articles were published. When confronted with a letter written by Mr. Rajan Vaid, Chief Manager Corporate Legal, Bennett Coleman and Co. Ltd., to HC Rajeev, PS Farsh Bazaar, he admitted the same adding that this letter was given by Rajan Vaid along with a document titled “Aam Aadmi Party replaces Shahdara Candidate” (referring to the press release already Exhibit CW‑1/D9A) and accordingly the said letter was exhibited as Exhibit CW‑5/B. During his cross‑examination by the learned counsel for the Accused persons, he admitted that there is no receiving from the Times of India on the document Exhibit CW‑1/D9A and he stated that no receiving was given for the press release. Further, during his cross‑examination, he admitted that the news articles published with the name of the Press Reporter are pre‑authenticated whereas those published against the name of Times News Network are taken as forwarded from the counter., CW‑6 K.P. Giri, P.R. Executive, Rashtriya Sahara, was also a summoned witness. He deposed in regard to the news article dated 14 October 2013 already Exhibit CW‑1/L as published by Rastriya Sahara. He brought copy of the aforesaid newspaper and the same was exhibited on record as Exhibit CW‑6/A. With respect to the source of the news article, he pleaded ignorance, whereupon he was confronted with document Mark CW‑6/B i.e. an internet‑generated article containing the news titled “Aam Aadmi Party replaces Shahdara Candidate”. He stated that he could not say whether the news Exhibit CW‑1/L was published in Rastriya Sahara, on the basis of document Mark CW‑6/B. However, during his further examination on the next date of hearing, he brought on record an e‑mail dated 13 October 2013 received from Ashwati Murlidharan stating that this was the source of news article Exhibit CW‑1/L dated 14 October 2013. During his cross‑examination, he pleaded ignorance as to whether the contents of e‑mail Exhibit CW‑6/C were verified before publication or not., CW‑7 Head Constable Rajeev, then posted at Police Station Farsh Bazar, deposed that the concerned Metropolitan Magistrate, Karkardooma Courts, Delhi, directed the Station House Officer of Police Station Farsh Bazar, Shahdara District, to conduct an investigation under section 202 of the Criminal Procedure Code in this matter which was assigned to him by the SHO. He deposed that accordingly he served notices under section 91 of the Criminal Procedure Code upon the officials of the Times of India, Hindustan Times and Rastriya Sahara which are Exhibit CW‑7/A, Exhibit CW‑7/B and Exhibit CW‑7/C. He affirmed the document Exhibit CW‑5/B as the letter received by him from the Times of India and he exhibited the speed‑post cover for the same as Exhibit CW‑7/D. He added that in response to his notice under section 91 of the Criminal Procedure Code, the officials of the newspaper Hindustan Times had sent him the source of the press release i.e. Exhibit CW‑7/E. Further he stated that in response to his notice under section 91 of the Criminal Procedure Code, the officials of the newspaper Rastriya Sahara had sent him the source of the press release i.e. Exhibit CW‑7/F (It may be noted here that the document Exhibit CW‑7/F is the same document as Mark CW‑6/B). He stated that he filed the report Exhibit CW‑7/G in the Metropolitan Magistrate Court, Karkardooma, Delhi which was duly forwarded by the SHO. He also admitted that he filed the report Exhibit CW‑7/H dated 4 April 2014 in the Court of the concerned Metropolitan Magistrate, Shahdara District in respect of the reply given by the Times of India, the Hindustan Times and Rastriya Sahara. It is pertinent to mention here that the report Exhibit CW‑7/G mentions that Head Constable Rajeev went to the office of Aam Aadmi Party at A‑119, Kaushambi, Ghaziabad, Uttar Pradesh where he met Advocate Rishikesh Kumar from the Legal Cell of Aam Aadmi Party who gave his response in writing on the letterhead of Aam Aadmi Party which has been annexed along with the report., CW‑8 Rishikesh, Advocate, stated to be the Representative of the Legal Team of Aam Aadmi Party, admitted the letter Exhibit CW‑8/B stating that the same was written by him and bears his signature but he pleaded ignorance with respect to document Exhibit CW‑8/A dated 24 March 2014 i.e. a document whereby the concerned SHO had sought answers to certain questions from the Aam Aadmi Party with respect to the press release dated 14 October 2013 regarding Aam Aadmi Party candidate for Delhi Legislative Assembly in terms of the enquiry directed to be conducted by the Metropolitan Magistrate Court, Karkardooma, Delhi. The document Exhibit CW‑8/B is addressed to the SHO, Police Station Farsh Bazar and specifically mentions that the same pertains to complaint case no. 728/1/13, Police Station Farsh Bazar, wherein the Court has required answers to the questions relating to the press release dated 14 October 2013 regarding Aam Aadmi Party candidate for Delhi Legislative Assembly. It is specifically written in the said letter that the press release was authorised and approved by the Political Affairs Committee of the Aam Aadmi Party and it comprises of Arvind Kejriwal, Gopal Rai, Manish Sisodia, Kumar Vishwas, Pankaj Gupta, Sanjay Singh and Yogender Yadav. It is also mentioned in the document that the political affairs of the party are managed by the Political Affairs Committee comprising the above‑named members. During his cross‑examination, the witness stated that he was not authorised by any person to sign the letter Exhibit CW‑8/B and he gave the same on his own. Even during his re‑examination by the Complainant, he denied that he was authorised by the members of the Political Affairs Committee of the Aam Aadmi Party to mention the names in his letter Exhibit CW‑8/B of the persons mentioned therein., CW‑9 Rajan Vaid, Deputy General Manager Corporate (Legal), Bennett Coleman and Co. Ltd., owner of the Times of India newspaper, deposed that on 20 March 2013 Head Constable Rajeev, Police Station Farsh Bazar, had served a notice under section 91 of the Criminal Procedure Code (Exhibit CW‑7/A), which was received by him and in reply to the same, he had sent a letter already Exhibit CW‑5/B contained in the envelope already Exhibit CW‑7/D. He added that he had also sent a copy of the press release received through e‑mail which is already Exhibit CW‑1/D9A. In his cross‑examination, he admitted that he did not verify the source of the press release personally and also that he did not see or receive the e‑mail. He admitted that he had no personal knowledge about the contents of the e‑mail, press release or the person who had sent it., CW‑10 Arun Pathak, Authorized Representative, Hindustan Times, deposed on the lines of CW‑9 and stated that he had received a notice under section 91 of the Criminal Procedure Code from Head Constable Rajeev, Police Station Farsh Bazar, Shahdara, on 19 March 2014 which is already Exhibit CW‑7/B and in response, he gave the press release already Exhibit CW‑7/E received through e‑mail from Aswathi Murlidharan. He exhibited a certificate under section 65B of the Indian Evidence Act in support of the print‑out of the e‑mail Exhibit CW‑7/E. The certificate is Exhibit CW‑10/A. During his cross‑examination, he also stated that he had not personally verified the contents of the alleged e‑mail and its alleged sender/author. He further stated that he did not know if before publication of the news item, the contents of the news item were verified by the Hindustan Times or not., CW‑11 Harish Chander, the then Station House Officer, Police Station Farsh Bazar, testified that he did not conduct any first‑hand inquiry in the present case. He basically deposed regarding handing over of the inquiry under section 202 of the Criminal Procedure Code to Head Constable Rajeev and forwarding the notices issued under section 91 of the Criminal Procedure Code as well as the reports submitted in the Metropolitan Magistrate Court, Karkardooma, Delhi., CW‑12 Aswathi Murlidharan, one of the most crucial witnesses to the case as the press release on the basis of which alleged defamatory articles have been published was sent through her e‑mail address to various media houses, deposed that she was not the media manager of either the Aam Aadmi Party or the Accused persons on 13 October 2013. However, she admitted that the document Exhibit CW‑7/E reflects her name as well as her e‑mail ID. She stated that she could not recollect whether the said press release was given by her to any media house due to lapse of time. She admitted receiving the document Exhibit CW‑1/D‑2 dated 23 July 2013 but denied being aware of its contents. She deposed that she was not working in the office of Chief Minister Arvind Kejriwal in the year 2013 or on the day of giving her testimony; rather she stated that she is working as a member in the Delhi Dialogue and Development Commission. She denied the suggestion of the Complainant that she was deposing falsely at the behest of the Accused persons in order to save them. In her cross‑examination, she stated that she had not seen the originals of documents Exhibit CW‑7/E and Exhibit CW‑1/D‑2 in the Metropolitan Magistrate Court, Karkardooma, Delhi. She admitted it to be correct that in document Exhibit CW‑7/E, it is not specifically mentioned to whom the alleged e‑mail was sent. She also stated that nobody approached her for giving any certificate regarding the alleged e‑mail Exhibit CW‑7/E. Further she stated that she had not gone through the contents of the documents put to her in examination in chief. After examination of CW‑12, no further evidence was led by the Complainant and accordingly, vide his separate statement dated 25 November 2019, the Complainant’s evidence was closed., After closing of the Complainant’s evidence, the statement of the Accused persons under section 313 of the Criminal Procedure Code was taken on record via written statements filed by them to the questionnaire put to them under section 313(5) of the Criminal Procedure Code. While Accused no. 1 filed his answers to the questionnaire in compliance with section 313(5) of the Criminal Procedure Code on 19 February 2020, the same was filed on behalf of Accused no. 2 and 3 on 7 March 2020. The Accused persons denied all the allegations of the Complainant as well as the correctness of the evidence brought on record by the Complainant., Statement of Accused no. 1 Arvind Kejriwal under section 313: He denied being aware of activities of the Complainant in Shahdara Bar Association or as a social worker or of the writ petitions filed by the Complainant (Exhibit CW‑1/A1A25). He denied having sent any volunteer of Aam Aadmi Party to the Complainant as well as filing of the application form by the Complainant seeking ticket from Aam Aadmi Party. He denied having ever interviewed the Complainant and stated that he could not even recollect whether he has ever met the Complainant or not. He denied having any knowledge of the explanation dated 23 July 2013 filed by the Complainant with respect to pending cases against him. He specifically stated that no party ticket was allotted to the Complainant in the assembly election of 2013 and therefore, he was unaware of any election campaigning done by the Complainant in Shahdara constituency. With respect to document Exhibit CW‑1/D, he stated that the same has been created by the Complainant himself and no such letter containing achievements of the Complainant was ever sent by him to the Complainant. He further specifically stated that he had never used any defamatory and derogatory language against the Complainant in any manner at any point of time. He stated that the candidature of the Complainant was considered and rejected due to non‑disclosure of his criminal antecedents whereby in his application Exhibit CW‑1/D1 the Complainant had concealed the FIR registered against him by striking out question no. 3 of the application form. He also specifically stated that he never issued any press release or media briefing regarding the candidature of the Complainant. He pleaded ignorance with respect to the news reports in October 2013. With respect to the testimonies of CW‑2 and CW‑3, he stated that they are interested witnesses and he specifically stated that he was not aware about the mode and manner in which the elections of Shahdara Bar Association were conducted in October 2013. With respect to the testimonies of CW‑4 to CW‑6 as well as CW‑9 and CW‑10, i.e. the witnesses from various newspapers, he stated that none of them had produced the original documents with respect to the publication dated 14 October 2013 and therefore, the evidence given by them is false and inadmissible. With respect to the testimonies of CW‑7, CW‑8 and CW‑11, he stated that they are formal witnesses and their evidence is not incriminating against him, however, he still denied the documents exhibited by them. With respect to the witness CW‑12 Aswathi Murlidharan, he stated that she has not admitted the contents of the document Exhibit CW‑7/E i.e. the press release on the basis of which the alleged defamatory news articles were published and therefore, he stated that the same is not evidence against him. He stated that this case is false and politically motivated. He claimed himself to be innocent and added that the selection committee of the party had allocated party tickets to deserving candidates and it was a policy of the party that no person involved in any criminal case would be entitled to a party ticket. He added that the Complainant deliberately and dishonestly withheld material information with respect to his involvement in civil and criminal litigation and by filing this case, he intends to put pressure on Aam Aadmi Party and its senior leaders. Lastly, he added that the allegations levelled in the complaint are baseless and without any substance., Statement of Accused no. 2 Manish Sisodia under section 313: His statement was exactly on the lines of Accused no. 1 whereby he also denied all the evidence and documents produced by the Complainant and his witnesses and stated that the present case is false, politically motivated, baseless and without any substance., Statement of Accused no. 3 Yogender Yadav under section 313: He stated that the present case has been set up as a malicious claim driven by political vendetta in order to harass him. He denied being aware of the status and activities as claimed by the Complainant. He denied having interviewed the Complainant or seeking an explanation from him with respect to pending cases against him or informing him about the alleged decision of the Aam Aadmi Party to give him a ticket. He denied being aware of the press release and stated that he had nothing to do with the alleged publication. He stated that he had never used any defamatory language against the Complainant. He stated that the testimonies of the Complainant i.e. CW‑1 as well as CW‑2, his colleague and CW‑3, his relative cannot be relied upon as they are interested witnesses and the present case was filed by the Complainant as he failed to secure a ticket from the Aam Aadmi Party. Lastly, he stated that the Complainant has not come to the Court with clean hands and has carried out vexatious and false litigation. While Accused no. 1 and 2 specifically stated that they wanted to lead evidence in their defence, Accused no. 3 did not specifically affirm leading of defence evidence and reserved his right to do the same at an appropriate stage., Before proceeding further, it may be noted that before defence evidence could be led, the Complainant in this matter expired on 1 November 2020. Thereafter, an application for substitution of the Complainant was moved on record on 17 November 2020 and vide detailed order dated 29 January 2021, the application was allowed whereafter Sh. Yogesh Kumar Gaur, nephew of the Complainant, was substituted on behalf of the deceased Complainant to conduct further proceedings in the matter., In support of their case, Accused no. 1 and 2 examined two witnesses i.e. DW‑1 Satender Kumar, Advocate, Shahdara Bar Association, and DW‑2 Swadesh Kumar, Chief Reporter, East Delhi, Dainik Jagran. DW‑1 Satender Kumar brought on record his identity proofs as an advocate viz. his Bar Association ID cards and receipts of Bar Association (Exhibit DW‑1/A (Colly.) and Exhibit DW‑1/B (Colly.)). With respect to the present case, he deposed that the Complainant was the Chairperson/Returning Officer for the Shahdara Bar Association Elections and on 1 October 2013, during the Bar Association Elections, the Complainant promoted bogus voting as a result of which the elections had to be cancelled. He deposed that he was also a member of the Election Committee at that time. He further added that he along with some other advocates went and complained regarding the conduct of the Complainant to the Aam Aadmi Party office as they knew that the Complainant was trying to get a ticket from Aam Aadmi Party to contest Assembly Elections in 2013 from Shahdara Vidhan Sabha Constituency. This witness was extensively cross‑examined by the substituted Complainant. During his cross‑examination, the substituted Complainant put photocopies of several photographs to the witness to show his association with the Aam Aadmi Party viz. Mark DW‑1/C1, Mark DW‑1/C2 and Mark DW‑1/C3, however, the witness denied the same. The witness admitted that via documents Mark DW‑1/C5 and Mark DW‑1/C6, he was appointed as Government Pleader/Panel Advocate for the District Court on behalf of the Delhi Government but denied the suggestion that Accused no. 1 and 2 got him appointed as a Government Pleader considering him to be a dedicated volunteer of Aam Aadmi Party. Further, during his cross‑examination, the witness was shown a copy of the Constitution of Shahdara Bar Association i.e. Mark DW‑1/C7, whereupon he stated that he had seen the document for the first time and denied the same to be the Constitution of Shahdara Bar Association. The witness denied the suggestion in his cross‑examination that he was deposing falsely in order to win the trust of Accused no. 1 and 2 and to receive undue favours from them. DW‑2 Swadesh Kumar, Chief Reporter, East Delhi, Dainik Jagran Newspaper, was a summoned witness and proved his identity by exhibiting his Office ID Card as Exhibit DW‑2/A. He brought on record copies of newspaper Dainik Jagran, Delhi Edition (Poorvi Delhi) Jagran City, of two dates i.e. 6 October 2013 (Exhibit DW‑2/B) and 4 October 2013 (Exhibit DW‑2/C). The news article dated 6 October 2013 is titled “Bar Association Ka Chunav 11 Ko” (The Bar Association Elections to be held on 11th). The article states that the General Body Meeting of the Bar Association decided that the elections of the Bar Association would be held on 11 October in the Court premises and that advocates had raised a demand to change the Chairman of the Election Committee, however, after discussion a Committee of ten advocates was formed to keep a watch on the Chairman of the Election Committee. The news article dated 4 October 2013 is titled “Nayi Chunav Samiti Ka Hoga Gathan Vakilo Ne Lia Faisla” (New Election Committee to be constituted as decided by advocates). The brief of the said news article is that a General Body Meeting of the Bar Association was to be held on 5 October 2013 and most of the members of the Bar Association were of the opinion that such members should be kept in the Election Committee that there is neither any dispute nor any allegation/counter‑allegation. The news report further mentions that on 1 October 2013, the Bar Association Elections were postponed as during elections, allegations were made upon the office bearers of the Election Committee to have conducted bogus voting. During his cross‑examination, DW‑2 stated that he did not know about the source of information with respect to the said news articles or with respect to their authenticity., After examination and cross‑examination of the said witnesses, defence evidence was closed on behalf of Accused no. 1 and 2 on 6 June 2022. Accused no. 3 preferred not to lead any defence evidence separately and accordingly defence evidence of Accused no. 3 was closed by his counsel on 28 June 2022. Thereafter, the matter was listed for final arguments. The respective counsel for both sides addressed detailed final arguments while referring to the evidence brought on record as well as citing relevant case laws. Arguments by the substituted Complainant reiterated the contents of the complaint and stated that the Complainant and his family have been subjected to immense disgrace and defamation on account of irresponsible publication made by the Accused persons, which specifically questioned the conduct and character of the Complainant despite his impeccable career record as a practising advocate and as an office bearer of the Bar Association. The substituted Complainant argued that the Accused persons had prior knowledge with respect to the pending cases in which the Complainant was involved, which was manifest from the document Exhibit CW‑1/D2 dated 23 July 2013, i.e. the declaration given by him with respect to civil and criminal litigations involving him, and the ticket for election of MLA from Shahdara Constituency from Aam Aadmi Party was given to him willingly by the Accused persons. He argued that when the Accused persons had prior knowledge about the previous court cases of the Complainant, it does not lie in their mouth to later claim that they had no knowledge about the antecedents of the Complainant. Moreover, he argued that there was no criminal case pending against the Complainant on the date of filing of the application form with the Aam Aadmi Party by the Complainant and thus, the publication in the newspapers shows their intention to defame him. The substituted Complainant further stated that the press release dated 13 October 2013 on the basis of which the defamatory newspaper articles were published had been issued from the office of Aam Aadmi Party after being authorised by its Political Affairs Committee and therefore, the Accused persons are very much responsible for bringing disrepute to the Complainant and his family, which has resulted in mental agony and financial losses to the Complainant and his family. He vehemently argued that because of the untrue and irresponsible publication made by the Accused persons, the Complainant and his family suffered a major setback as they were defamed in society at large, which has been duly proved by the Complainant’s witnesses and therefore, the Accused persons should be held guilty and given maximum punishment so that in future they do not make any such statements, which causes mental, physical or financial harassment to any common man. More so, because the Accused persons are prominent political leaders of the country and each word spoken by them holds utmost importance in the eyes of the common man. In support of his arguments, the substituted Complainant relied upon the judgment titled as Jeffrey J. Diermeier and Another v. State of West Bengal and Another. Written arguments were also filed by the substituted Complainant to assert his case. On behalf of the defence, arguments were mainly addressed by Learned Senior Counsel Ms. Rebecca John appearing for Accused no. 1 and 2 who put forward detailed final arguments in this matter taking the Court again from the beginning of the trial till its end covering testimonies of all the witnesses brought by the Complainant as well as the Accused persons and the documents exhibited on record. The learned senior counsel divided her arguments in two parts whereby one pertained to the press release allegedly issued by the Accused persons, which led to the news articles being published, which are the subject matter of the present case and the second limb pertained to the lack of any defamatory content in the said newspaper articles. She argued vehemently that in order to prove the commission of any offence by any person a threshold of proving the guilt beyond reasonable doubt has to be crossed by the Complainant, which the Complainant has miserably failed to do in the present case. She further argued that the onus was on the Complainant to prove that the press release dated 13 October 2013 was issued by either Accused no. 1 or Accused no. 2 or Accused no. 3 or all of them or at least authorised by them, which he has been unable to do. The author of the press release, on the basis of which the alleged defamatory articles were published, is still unknown despite completion of the trial.
id_1410	2	Even though CW-12 Aswathi Muralidharan has admitted that the email dated 13 October 2013 bears her e‑mail address, she could not affirm whether the press release was sent by her. Learned Senior Counsel also pointed out that Aswathi Muralidharan specifically testified that she was not the Media Manager of the Aam Aadmi Party or the accused persons on the date of issuance of the press release dated 13 October 2013 and that she did not work in the office of Chief Minister Arvind Kejriwal in the year 2013., Learned Senior Counsel further pressed that the only person who could have proved the e‑mail Exhibit CW‑7/E, i.e., the press release sent to the media houses through e‑mail, is CW‑12 Aswathi Muralidharan, but she has neither affirmed sending any such e‑mail nor produced any certificate under Section 65‑B of the Indian Evidence Act. Consequently, the link connecting the accused persons with the newspaper articles is lost., Learned Senior Counsel put forward that CW‑12 Aswathi Muralidharan has denied the contents of the e‑mail dated 13 October 2013, denied working for the Aam Aadmi Party, and has not given any certificate under Section 65‑B of the Indian Evidence Act. It was pointed out that CW‑12 specifically stated that she is not the Media Manager of the Aam Aadmi Party and has not admitted sending the aforesaid e‑mail; hence, at the first instance, the press release, which forms the entire basis of this case, is an inadmissible document., It was further argued that CW‑4 Bala Krishna Chatry, CW‑5 Shri Bhagwan, CW‑6 K.P. Giri and CW‑9 Rajan Vaid have not produced the mandatory certificate under Section 65‑B of the Indian Evidence Act to prove the e‑mail relied upon by them as the source of news articles, and therefore their evidence loses its relevance. Further, CW‑10 Arun Pathak has produced a certificate under Section 65‑B, but it is defective as it is not in consonance with the legal provisions; consequently, the validity of the sole certificate produced under Section 65‑B is rendered nugatory., Concluding her first leg of arguments, Learned Senior Counsel strongly put forward that CW‑12 Aswathi Muralidharan did not prove the press release and rather disowned it, while other newspaper correspondents also could not prove it. She further argued that newspaper evidence is hearsay and is not admissible unless its source is proved. Thus, on behalf of Accused No. 1 and 2 it was argued that it could not be proved on record that the press release was issued at the behest of the accused persons and therefore any liability for defamatory content, if any, cannot be attributed to the accused persons., Referring to Exhibit CW‑8/B, which is the response of the Aam Aadmi Party to the letter of the Station House Officer enquiring about the press release, Learned Senior Counsel for Accused No. 1 and 2 stated that Exhibit CW‑8/B refers to the press release dated 14 October 2013 and not 13 October 2013; therefore, the exhibit is irrelevant for the purpose of this case., Moving to the second leg of her arguments, Learned Senior Counsel covered the issue whether the alleged newspaper articles were defamatory. It was argued that the press release contained two aspects on the basis of which the complainant is alleging defamation: (a) the complainant has a previous criminal record, and (b) the conduct of Shahdara Bar Association elections during his chairmanship was not proper., Regarding the previous criminal record, Learned Senior Counsel for Accused No. 1 and 2 argued that there is material suppression on the part of the complainant, whereby he made a false declaration. In his application form filed with the Aam Aadmi Party, the complainant crossed the column asking for previous or present criminal record, implying that there had never been any criminal case filed against him. However, Exhibit CW‑1/D2 shows that the complainant had a long list of civil and criminal cases pending against him., It was pointed out that in his cross‑examination dated 14 May 2019, the complainant himself admitted that the cancellation report with respect to FIR No. 55/02 PS Farsh Bazar was filed only in the year 2019, meaning that the case was still pending in 2013, the year in which the application form was filled and the news articles were published stating that the complainant had a criminal record. Hence, Learned Senior Counsel for the accused argued that the complainant has not stated the complete facts before the Delhi High Court and has not come with clean hands., Learned Senior Counsel on behalf of Accused No. 1 and 2 therefore stated that it is a statement of fact that the cases were pending against the complainant on the day the press release was issued., Moving ahead to the second aspect concerning the conduct of Shahdara Bar Association elections, Learned Senior Counsel argued that the improper conduct of the complainant is manifest from the testimony of DW‑1 Satender Kumar, who was himself a member of the election committee of the Shahdara Bar Association. Learned Senior Counsel also relied upon the testimony of DW‑2, the chief reporter of Dainik Jagran, in which two news articles (DW‑2/B and DW‑2/C) specifically state that there were allegations of misconduct on the chairperson of the election committee and that around ten senior members were nominated to oversee the elections and keep watch on the chairperson., It was argued that even the second aspect of the publication contains facts that have been established on the record not only by the testimony of an advocate from the Bar Association but also by newspaper publications; therefore, it is also a statement of fact., Learned Senior Counsel, therefore, concluded that the accused persons cannot be held liable for the alleged offence of defamation as there is no proof of issuance of the publication at their instance and, even if it is presumed that the publication was made at their instance, it contains statements of fact covered within the exceptions provided under Section 499 of the Indian Penal Code. Accordingly, Learned Senior Counsel strongly pressed for acquittal of the accused persons., In order to add weight to his arguments, Learned Senior Counsel for the accused relied upon several authorities, namely: (a) R.P. Goenka and Others v. State of Uttar Pradesh, 2020 Cri 46, wherein the Supreme Court of India held that a newspaper report by itself does not constitute evidence of its contents; such reports are only hearsay evidence and must be proved either by production of the reporter who heard the statement or by production of the newspaper’s editor or publisher. (b) MCD v. State of Delhi, (2005) 4 SCC 605, wherein the Court observed that the respondent’s failure to disclose a prior conviction amounted to fraud on the court. (c) Anand Ramchandra Chougule v. Sidarai Laxman Chouugala, (2019) 8 SCC 50, which reiterated that the burden of proof lies on the prosecution and the accused need only create doubt. (d) Arjun Panditrao Khotkar v. Kaulash Kushanrao Gorantyal, (2020) 7 SCC 1, which explained the requirements of Section 65‑B of the Indian Evidence Act for admissibility of electronic records and the necessity of a certificate describing the manner of production. (e) Dr. Subramanian Swamy v. Tajinder Pal Singh Bagga, W.P. (CRL) 735/2022, decided by the Honorable High Court of Delhi on 4 April 2022., The Court reproduced Section 4 of the Probation of Offenders Act, which applies to all offenders whether under or above twenty‑one years of age. The section is intended to attempt possible reformation of an offender instead of imposing the normal punishment. The only limitation imposed by Section 6 is that, in the first instance, an offender under twenty‑one years of age will not be sentenced to imprisonment. While extending the benefit of this provision, the discretion of the court must be exercised having regard to the circumstances in which the crime was committed, the age, character and antecedents of the offender. The offender can be released on probation of good conduct when the court forms an opinion, having considered the nature of the offence and the character of the offender, that in a particular case the offender should be released on probation. The magistrate should carefully consider the attendant circumstances before applying the section. The second respondent is a previous convict as per the records placed before us; such a previous convict cannot be released in view of Section 4 of the Probation of Offenders Act. The court is bound to call for a report as per Section 4, but the High Court has failed to do so. The word “shall” in sub‑section (2) of Section 4 is mandatory and the consideration of the report of the probation officer is a condition precedent to the release of the accused., Learned Counsel for Accused No. 3 adopted the arguments addressed by Learned Senior Counsel for Accused No. 1 and 2 and, for brevity, did not repeat them. He added that contradictions in the cross‑examination of the complainant’s witnesses and in the documents filed by the complainant weaken the complainant’s case beyond repair and place the accused persons in the realm of innocence. He stated that neither the alleged defamatory publication was made at the behest of Accused No. 3 nor has Accused No. 3 individually given any such statement; therefore, he should be declared innocent and acquitted., In rebuttal, the substituted complainant argued that DW‑1 Satender Kumar, the prime defence witness, is a planted and interested witness because he has been working for the Aam Aadmi Party for a long time, and therefore his testimony cannot be relied upon. The complainant further contended that he has not been harmed by the withdrawal of the ticket by the Aam Aadmi Party but by the defamatory reasons given in the press release. He also argued that the defence’s reliance on exception No. 1 to Section 499 of the Indian Penal Code, i.e., statement of truth for public good, does not apply because no public good has been shown. Additionally, the complainant claimed that the defence misled the Delhi High Court by stating that Exhibit CW‑8/B pertains to the press release dated 14 October 2013 and not 13 October 2013, whereas the reports of the defamatory news articles were published on 14 October 2013, making Exhibit CW‑8/B relevant., The complainant further argued that reliance on news articles Exhibit DW‑2/A and Exhibit DW‑2/B contradicts the defence’s own argument that news articles are indirect evidence and require proof of source; therefore, no reliance can be placed on those articles. He also noted that no action has been taken by the accused persons against the news publications for attributing the source of the alleged defamatory articles to them, which shows that the articles were in fact published at the behest of the accused persons., In response, Learned Counsel for the accused argued that the testimony of DW‑1 is admissible and that he is a material witness, as there was no suggestion during cross‑examination that he was a planted witness. Regarding news articles Exhibit DW‑2/A and Exhibit DW‑2/B, the defence maintained that these are news articles of public domain gathered by reporters and not based on the press release, and that the complainant’s failure to take action against them makes them material evidence. The defence also stated that the testimony of CW‑8 Rishikesh cannot be read against the accused persons because it refers to the press release dated 14 October 2013, and no question was put to him about the press release dated 13 October 2013. Furthermore, the defence pointed out that no police complaints have been made by the complainant regarding the alleged disgruntled elements that led to the cancellation of the election, rendering the complainant’s stand questionable. Finally, the defence argued that it is the complainant, not the accused persons, who should have made the publishing houses parties to the case for the alleged defamatory publication, which the complainant failed to do., At last, after the completion of arguments on behalf of the substituted complainant and all the accused persons, the trial culminated. Both sides intensely argued in support of their respective cases; one prayed for conviction of the accused persons, the other argued for their acquittal. The Delhi High Court patiently heard the arguments, noted the facts and the law, and perused each document exhibited on record., Relevant points of law: Before adverting to the various aspects of the evidence and its admissibility, it is necessary to discuss the law of defamation in India. The offence of defamation is defined under Section 499 of the Indian Penal Code, which provides that whoever, by words either spoken or intended to be read, or by signs or visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said to defame that person, except in the cases hereinafter expected. Explanation 1: It may amount to defamation to impute anything to a deceased person if the imputation would harm the reputation of that person if living and is intended to hurt the feelings of his family or near relatives. Explanation 2: It may amount to defamation to make an imputation concerning a company, an association or a collection of persons as such. Explanation 3: An imputation in the form of an alternative or expressed irony may amount to defamation. Explanation 4: No imputation is said to harm a person’s reputation unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome or disgraceful state., Punishment for the offence of defamation is provided under Section 500 of the Indian Penal Code: Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both., The root of the offence of defamation lies in reputation. Although no formal definition of reputation is provided in penal statutes, the Supreme Court of India has elucidated the concept in several judgments. In Kiran Bedi & Others v. Committee of Inquiry, the Court observed that reputation is a personal right akin to personal security. In Vishwanath Agrawal v. Sarla Vishwanath Agrawal, the Court described reputation as “the salt of life, the purest treasure and the most precious perfume of life.” In Om Prakash Chautala v. Kanwar Bhan & Others, the Court held that reputation is a glorious amalgam of virtues and that an attack on reputation is a criminal wrong punishable under Sections 499 and 500 of the Indian Penal Code., Though there have been debates on whether defamation should remain a criminal offence, the Supreme Court of India, in Subramanian Swamy v. Union of India, upheld the constitutional validity of Sections 499 and 500 of the Indian Penal Code, holding that criminal defamation is a reasonable restriction on the right to freedom of speech and expression and that protection of reputation is a fundamental right., The Court has also observed that while freedom of speech is a cherished right, society is entitled to regulate it through democratic action, and that there is a correlative duty not to interfere with the liberty of others, ensuring dignity of person and reputation.
id_1410	3	Nobody has a right to denigrate another's right to person or reputation. The Subramanian Swamy judgment (supra) dwelt on the ingredients which constitute the offence of defamation and held that it is imperative to analyse in detail what constitutes the offence of defamation as provided under Section 499 of the Indian Penal Code. To constitute the offence, there must be an imputation made in the manner provided in the provision with the intention of causing harm or with reason to believe that such imputation will harm the reputation of the person about whom it is made. Causing harm to the reputation of a person is the basis on which the offence is founded and mens rea is a condition precedent to constitute the offence. The complainant must show that the accused intended, knew, or had reason to believe that the imputation would harm the complainant's reputation. Section 44 of the Indian Penal Code defines injury as any harm whatsoever illegally caused to any person in body, mind, reputation or property. Thus, the word injury encapsulates harm caused to the reputation of any person and also takes into account harm to a person's body and mind. Section 499 provides for harm caused to the reputation of a person, that is, the complainant. In Jeffrey J. Diermeier and another v. State of West Bengal, a two‑Judge Bench held that there must be an imputation made with the intention of harming, or with knowledge or reason to believe that it will harm, the reputation of the person about whom it is made. In essence, the offence of defamation is the harm caused to the reputation of a person, and it is sufficient to show that the accused intended, knew, or had reason to believe that the imputation would harm the complainant's reputation, irrespective of whether the complainant actually suffered directly or indirectly., From the observations of the Honourable Supreme Court of India, mens rea, i.e., the intention to defame, is indispensable to establish the offence of defamation. There must be an intention on the part of the accused to cause harm to the complainant's reputation. The following ingredients of the offence of defamation can be culled out: (i) Imputation made by the accused: The imputation must be made by the accused upon the complainant, be it through spoken or written words, signs or visible representations. Hence, actus reus on the part of the accused is an essential element. (ii) Statement or imputation must be published: Publication requires that a third party to the communication has seen, read or heard the statement. In Mahender Ram v. Harnandan Prasad, the Patna High Court held that mere writing of defamatory words intended only for the addressee does not constitute an offence of defamation; it is necessary to show that the writer intended the defamatory writing to be read by persons other than the addressee or ought to have known that it was likely to be so read. (iii) Intention to cause harm to the reputation of the complainant: This is the most important ingredient. It must be proved on record that the defamatory imputation was made by the accused intending to harm, or knowing or having reason to believe that it will harm, the complainant's reputation. Explanation 4 to Section 499 states that the imputation, directly or indirectly, lowers the character or credit of the person or causes it to be believed that the person is in a loathsome or disgraceful state., Keeping the above legal aspects in mind, the Delhi High Court shall now appreciate the evidence to ascertain whether the complainant has proved its case beyond reasonable doubt establishing the guilty intention of the accused persons, or whether the accused persons have been able to prove their innocence and bona fide. The primary aspect to be dealt with is the actus reus on the part of the accused persons, especially because they have denied giving any press release that is stated to be the source of the alleged news articles published on 14‑10‑2013 in leading daily newspapers. Before deciding whether the news articles dated 14‑10‑2013 were defamatory, the Delhi High Court must first determine whether the alleged defamatory news articles were published at the behest of the accused persons., The Hindustan Times published two news items on 14‑10‑2013, one in English and one in Hindi, relevant to the case. The English edition reported that the Aam Aadmi Party (AAP) had decided to replace its candidate from the Shahdara constituency after discovering that the candidate had FIRs registered against him and pending criminal cases, along with property disputes and allegations of unfair means and violence during the Shahdara Bar Association election. The party stated that any candidate found to have a doubtful criminal record would have his candidature cancelled and the seat kept vacant. The newspaper could not obtain comments from the complainant, and the article noted that the party's stance on criminal records did not extend to Uttam Nagar., Witness CW4, the Record Keeper of Hindustan Times, affirmed the publication of the above news articles but could not shed light on the source of the articles. Witness CW10, an authorized representative of Hindustan Times, stated that the articles were based on a press release received through an e‑mail from Aswathi Muralidharan and annexed a certificate under Section 65B of the Indian Evidence Act in support of the print‑out of the e‑mail. The Hindi news article mentioned that the AAP spokesperson, accused no. 2, had stated that the complainant's candidature was cancelled due to property disputes and pending FIRs, but no first‑hand statement from accused no. 2 was produced. No reporter was called to testify about any statement given by accused no. 2, and the source of the news reports was identified solely as the e‑mail from Aswathi Muralidharan., The Times of India printed a news article on 14‑10‑2013 stating that AAP removed its Shahdara candidate after reports of criminal charges, property disputes and FIRs lodged against him. The article quoted an AAP release that the candidate had failed to disclose these matters in his application and that the Shahdara Bar Association election had been cancelled due to allegations of unfair means and violence. Witness CW5, an assistant (Legal) of the Times of India, exhibited the newspaper copy but could not disclose the source of the information, admitting that the press release given by Rajan Vaid to the investigating officer was the source. Witness CW9, DGM Corporate (Legal) of Bennett, Coleman & Co. Ltd., affirmed that the news article was based on the press release received from Aswathi Muralidharan (e‑mail ID ash.aswathi2012@gmail.com) and admitted that no verification of the source was carried out. No certificate under Section 65B of the Indian Evidence Act was produced to authenticate the e‑mail., The newspaper Rashtriya Sahara printed a news article on 14‑10‑2013. Witness CW6, PR Executive of Rashtriya Sahara, testified that the source of the article was an e‑mail from Aswathi Muralidharan dated 13‑10‑2013, which contained the same contents as the press release exhibited by other witnesses. No certificate under Section 65B of the Indian Evidence Act was attached to the e‑mail to certify its authenticity., A bare reading of the quoted news articles and the testimonies of the various news agencies shows that the source of their information is the same e‑mail sent by Aswathi Muralidharan on 13‑10‑2013. The e‑mail, reproduced below, states that the AAP replaced its Shahdara candidate, Surendra Sharma, because he had not disclosed pending criminal cases, FIRs and property disputes, and because the Shahdara Bar Association election under his chairmanship was cancelled due to allegations of unfair means and violence. The e‑mail further notes that the party would cancel any candidate’s candidature if credible information about a criminal record is received on the last day of nomination., Aswathi Muralidharan, who sent the e‑mail, was examined as witness CW12. She denied being the Media Manager of the AAP or of the accused persons on the day the e‑mail was sent. Although she admitted her name and e‑mail address, she could not recall sending the alleged press release due to the lapse of time. Consequently, while the e‑mail may have been sent by her, it was not sent at the behest of the accused persons or the AAP. The ideal flow of information would have been from the Political Affairs Committee of the AAP to Aswathi Muralidharan and then to the media channels, but no connection between the AAP and Aswathi Muralidharan was established during the trial. Her signature on a document dated 23‑07‑2013, produced by the accused, does not establish that she was the Media Manager of the AAP in 2013 or that the e‑mail was sent by her on the accused persons’ instructions. Therefore, the source of the news articles, the e‑mail from Aswathi Muralidharan, does not sufficiently support the complainant’s case to attribute actus reus to the accused persons., On technical grounds, the admissibility of the e‑mail from Aswathi Muralidharan is questionable under Section 65B of the Indian Evidence Act, which deals with the admissibility of electronic records. The section requires that an electronic record be accompanied by a certificate complying with sub‑section (4) to be admissible as evidence, unless the original document is produced in court. The Supreme Court of India, in Arjun Panditrao Khotkar v. Kaulash Kushanrao Gorantyal, reiterated that the certificate under Section 65B(4) is a condition precedent to the admissibility of electronic evidence, and oral evidence cannot substitute for the required certificate. The Court also referenced Anvar P. V. v. P. K. Basheer, emphasizing that the certificate is mandatory unless the original electronic document is produced. The Delhi High Court therefore finds that the e‑mail, lacking a Section 65B(4) certificate, is inadmissible as evidence.
id_1410	4	In terms of sub‑section (1) to Section 65B, original evidence need not be produced when conditions of Section 65B are satisfied. The computer output in relation to the information and computer in question is admissible as secondary evidence when a certificate under Section 65B is produced. However, Section 65B nowhere states that the contents of the computer output shall be treated as the truth of the statement. Section 65B deals with admissibility of secondary evidence in the case of electronic records and not with the truthfulness or veracity of the contents. Thus, any document on a computer device, unless produced in original, is admissible in the form of secondary evidence only when supported by a mandatory certificate as required under Section 65B(4) of the Indian Evidence Act., The source of all the alleged defamatory newspaper articles produced on record is one e‑mail sent by Aswathi Muralidharan. Print outs of the said e‑mail have already been produced and exhibited on record by all the news publishing houses separately, i.e., Exhibit CW7/E, Exhibit CW1/D9A and Exhibit CW6/C. While a certificate under Section 65B(4) of the Indian Evidence Act has been produced by CW10 Arun Pathak with respect to e‑mail Exhibit CW7/E received by Hindustan Times, no certificate at all has been produced by any other witness from other news publications, i.e., Times of India and Rashtriya Sahara, with respect to the e‑mails received by them. No primary evidence has been produced during the trial with respect to the receipt of the e‑mail by Aswathi Muralidharan; hence, filing of a certificate under Section 65B(4) of the Indian Evidence Act was mandatory. Consequently, the admissibility of the e‑mails relied upon by the Times of India and Rashtriya Sahara becomes questionable., The only witness who has produced the requisite certificate under Section 65B(4) of the Indian Evidence Act is CW10 Arun Pathak. It has been argued by learned senior counsel for Accused No. 1 and 2 that the certificate Exhibit CW10/A given by witness Arun Pathak is not proper and therefore the e‑mail Exhibit CW7/E relied upon by him is inadmissible. The requirements of a certificate under Section 65B(4) of the Indian Evidence Act were enumerated in Anvar P. V. vs. P. K. Basheer & Ors., where the essentials are: (a) a certificate which identifies the electronic record containing the statement; (b) a description of the manner in which the electronic record was produced; (c) particulars of the device involved in the production of that record; (d) compliance with the conditions mentioned under Section 65B(2) of the Indian Evidence Act; and (e) the certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device. The person need only state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record, such as a computer printout, compact disc, video compact disc, pen drive, etc., when the record is produced in evidence. These safeguards ensure source and authenticity, the two hallmarks of electronic records used as evidence., The certificate Exhibit CW10/A is not complete because it does not mention the details or particulars of the devices used to take the print out of the e‑mail. As the essentials quoted above indicate, merely stating that the electronic record is generated from the computer and printer maintained in the office in the regular course of business does not suffice; specifications of the devices used to generate the copy must also be mentioned in the certificate under Section 65B(4) of the Indian Evidence Act. Hence, the only certificate brought on record under Section 65B(4) of the Indian Evidence Act is also not proper., The e‑mails produced on record by the witnesses claiming them to be the source of the news articles in question are therefore inadmissible in evidence. Another important aspect pertains to the testimony of CW8 Rishikesh, who is stated to be the head of the legal team of the Aam Aadmi Party. He first became a part of this case during an inquiry by the Investigating Officer under Criminal Procedure Code section 202, wherein he was asked to respond about the press release pertaining to this case. The aforesaid letter issued by the Investigating Officer has been exhibited on record as Exhibit CW8/A. In the said letter, an inquiry was made by the Investigating Officer from the In‑charge/Manager of the Aam Aadmi Party with respect to the press release dated 14‑10‑2013, making two queries: (i) the authorship or signatory of the press release or communication made to the press and by whom; and (ii) the persons or officials responsible for managing the public affairs of the Aam Aadmi Party., Although CW8 Rishikesh has not admitted receiving the said letter, he has admitted the letter Exhibit CW8/B apparently written in response to it. Exhibit CW8/B is a letter addressed to the Station House Officer, Police Station Farsh Bazar, New Delhi, written on the letterhead of the Aam Aadmi Party and signed by CW8 Rishikesh. The letter specifically mentions that it is in regard to the query raised in complaint case No. 728/1/13 of Farsh Bazar, wherein the court required answers to certain points with respect to the press release dated 14‑10‑2013 regarding the AAP candidate for Delhi Legislative Assembly. The document states that the press release was authorized and approved by the Political Affairs Committee of the Aam Aadmi Party comprising Arvind Kejriwal, Gopal Rai, Manish Sisodia, Kumar Vishwas, Pankaj Gupta, Sanjay Singh and Yogender Yadav, and that the political affairs of the party are managed by that committee. In his cross‑examination, CW8 stated that he was not authorized by any person to sign Exhibit CW8/B and that he was not instructed by any party functionary to write the letter. While arguing on behalf of Accused No. 1 and 2, learned senior counsel asserted that there is a difference between a press release and a news article. Maintaining that the letter issued by the Investigating Officer asked queries about a press release dated 13‑10‑2013, it was argued that the press release in question is dated 13‑10‑2013 and thus the letter Exhibit CW8/B, which talks about a press release dated 14‑10‑2013, is of no significance to this case. The Hon'ble Delhi High Court disagrees with that contention. To understand its contents, any document must be read as a whole, including the context in which it is written, and not merely superficially. Exhibit CW8/B specifically mentions that it is written in the context of the present case and pertains to the news article concerning the AAP candidate for Delhi Legislative Assembly. This implies that the letter written by the Investigating Officer is in respect of the press release dated 13‑10‑2013 and news articles dated 14‑10‑2013. A different nomenclature does not change its nature and purpose. No suggestion has been put to CW8 that Exhibit CW8/B does not pertain to this case or that it pertains to some other matter; therefore, the document is relevant. However, even though its relevance is established, its connection to the actual issuance of the press release remains questionable. CW8 Rishikesh has denied that he was authorized by the party to sign the letter, and no witness or evidence has been produced to establish such authorization. Moreover, even assuming he was authorized, the letter is silent on who made the communication to the press. The Investigating Officer’s inquiry sought information on the authorship and signatory of the press release, but Exhibit CW8/B does not address this aspect. It also does not link Aswathi Muralidharan, who actually sent the e‑mail containing the press release. Consequently, Exhibit CW8/B can at best be categorized as preparation for publication, not as the publication itself, and does not establish the missing link to the alleged defamatory news articles., Thus, despite scrutiny of the entire evidence on record, it could not be established that the news publication was made by the accused persons. The most essential ingredient of the offence, i.e., actus reus, could not be established on the part of the accused persons. Accordingly, this Hon'ble Delhi High Court shall not consider whether the alleged news articles were defamatory and will proceed directly to the decision., The Indian legal system follows an adversarial system, and the cardinal principles of criminal jurisprudence in India are: (i) the accused is presumed innocent unless proved guilty; and (ii) the burden lies on the prosecution to prove the guilt of the accused beyond all reasonable doubt. Hence, it is incumbent upon the prosecution or complainant to prove all the ingredients which constitute the offence so that all reasonable doubts are removed. It may be noted that the strongest suspicion upon the accused does not amount to proof of guilt., The law on burden of proof upon the prosecution has been enunciated in several judicial pronouncements. The Supreme Court's judgment in Anand Ramchandra Chougule has been quoted earlier. The Delhi High Court, in Sushil Kumar vs. State Government of NCT of Delhi (Criminal Appeal No. 982/11 dated 22 July 2014), held that it is a cardinal principle of criminal jurisprudence that the guilt of the accused must be established by the prosecution beyond the possibility of any reasonable doubt. Even if there may be an element of truth in the prosecution's story, the prosecution must cover the entire distance with legal, reliable and unimpeachable evidence before an accused can be convicted. Mere conjectures, surmises, and bald allegations cannot satisfy the required level of proof., In the present case, although the complainant alleges that the accused persons defamed him by getting the alleged news articles published on 14‑10‑2013, he has been unable to prove on record that the accused persons either authored or authorized the issuance of the press release dated 13‑10‑2013. No media representative of the accused persons was called as a witness to prove the issuance of the press release, nor was any first‑hand statement of any accused person regarding the alleged defamatory articles produced on record. Consequently, the complainant has been unable to establish any affirmative act by the accused persons to constitute the offence of defamation., As already discussed, to constitute any offence two essential ingredients are required: actus reus, i.e., the act or omission constituting the physical element of the crime, and mens rea, i.e., guilty intention. Particularly with respect to defamation, the primary ingredient, actus reus, is the making of a statement or imputation by words, signs or visible representations by the accused; the other ingredients, such as publication and intention to defame, follow thereafter. The complainant's case fails at the very first aspect. Since the complainant has been unable to prove that the accused persons gave the alleged defamatory press release or statements, there is no need to discuss whether those statements were defamatory. Where the foundation of the complaint fails, the superstructure built upon it must also fail., Thus, this Hon'ble Delhi High Court has no hesitation in holding that, despite examination of a plethora of witnesses and production of several documents, the complainant failed to prove his case beyond all reasonable doubts as required by law. Quality and relevance, not quantity of evidence, determine the fate of a case. Culpability can be attached to the accused persons only if it is proved that they have committed the alleged offence, which the complainant failed to do despite several efforts. In these circumstances, this court cannot hold the accused persons guilty in the present case., In view of the appreciation of evidence and the foregoing discussion, all the accused persons, namely Arvind Kejriwal, Manish Sisodia and Yogender Yadav, are held not guilty and are acquitted of the charge under Section 500 of the Indian Penal Code. The judgment was announced in open court by Vidhi Gupta Anand on 20 August 2022. AC MM‑01, RADC/New Delhi. This judgment has been directly typed to dictation.
id_1411	0	In the High Court of Delhi at New Delhi, Criminal Revision Application No. 82 of 2021, Natasha Narwal, Appellant, through Mr. Adit S. Pujari, Ms. Tusharika Matt oo and Mr. Kunal Negi, Advocates, versus State of Delhi, NCT, Respondent, through Mr. Amit Prasad, Mr. Amit Mahajan and Mr. Rajat Nair, Special Public Prosecutors for the State, with Mr. Dhruv Pande and Mr. Shantanu Sharma, Advocates. Coram: Hon’ble Mr. Justice Siddharth Mridul and Hon’ble Mr. Justice Anup Jairam Bhambhani., The matter was heard by video conferencing on 10 May 2021 due to the COVID-19 pandemic. In Criminal Revision Miscellaneous Application No. 7247 of 2021, the appellant sought exemption from filing a notarized affidavit in support of the accompanying application under Section 482 of the Code of Criminal Procedure. The High Court, considering the reasons stated in the application and the prevailing situation, allowed the exemption and directed that the appellant may file the notarized affidavit within one week after the normal functioning of the Court resumes., In Criminal Revision Miscellaneous No. 536 of 2021, the appellant originally sought interim bail on the ground that her aged father had been hospitalized at Positron Hospital in Rohtak, Haryana, after testing positive for COVID-19. It was further stated that the appellant’s brother, who had been caring for the father, also tested positive on 7 May 2021 and was unable to look after their ailing father. Counsel Mr. Adit S. Pujari informed the Court that Sh. Mahavir Narwal, the appellant’s father, died at about 6:00 p.m. on the previous day at the same hospital. The father is survived only by the appellant and her brother Mr. Akash Narwal, who is in self‑isolation due to COVID-19 infection; the appellant’s mother had passed away twenty‑one years ago. The body of the deceased is currently kept at Positron Hospital awaiting release to the appellant., The State’s Special Public Prosecutors, Mr. Amit Mahajan and Mr. Amit Prasad, appeared on behalf of the respondent, accepted notice and did not oppose the relief sought. In the interests of justice, the Court directed that Natasha Narwal be released forthwith on interim bail for a period of three weeks, subject to the following conditions: (i) The appellant shall furnish a personal bond of Rs 50,000 to the satisfaction of the Jail Superintendent. In view of the fact that her sole sibling is in self‑isolation and the appellant has already furnished sureties for bail granted in First Information Report No. 50 of 2020 at Police Station Jafrabad and First Information Report No. 48 of 2020 at Police Station Jaffrabad, she is exempted from furnishing additional surety; (ii) The appellant shall provide a mobile phone number to the Superintendent of Police, Crime Branch (Special Cell), and keep it operational throughout the period of release, and also furnish a mobile phone number to the Superintendent of Police, Urban Estate, Rohtak, Haryana, which has jurisdiction over her residence at 1225, Sector‑3, Rohtak, Haryana; (iii) The appellant shall comply with all governmental rules in force due to the pandemic, including wearing a Personal Protective Equipment kit at the time of cremation; (iv) The appellant shall not leave the territories of the State of Delhi and Haryana without permission of the Court and shall ordinarily reside at the address recorded in the prison records; (v) The appellant shall surrender before the Jail Authorities upon expiry of the interim bail; (vi) Not earlier than three days before the time of surrender, the appellant shall undergo an RT‑PCR test for COVID‑19 and submit a copy of the report to the Jail Superintendent., Counsel Mr. Pujari informed the Court that one of the conditions of the bail granted in First Information Report No. 50 of 2020 prohibits the appellant from leaving the jurisdiction of the National Capital Territory of Delhi. The Court clarified that travelling within Delhi and Haryana as permitted by the present order does not constitute a violation of that condition. The order shall be signed by the concerned Registrar, who is directed to telephonically inform the Jail Superintendent of the directions contained herein for compliance. Copies of the order shall be provided electronically to the learned counsel appearing on behalf of the parties as well as to the Jail Superintendent forthwith. The application stands disposed of., Justice Siddharth Mridul, Justice Anup Jairam Bhambhani, 10 May 2021.
id_1412	0	WP(MD) No.195 94 of 2020 (Special Original Jurisdiction) Monday, the Twenty First day of December Two Thousand and Twenty, petition filed praying that in the circumstances stated therein and in the affidavit filed therewith the Madras High Court, Madurai Bench may be pleased to issue a writ of mandamus, directing the respondent to provide a pathway or road having access to the burial ground from the villages where Adi Dravidar people are residing in the Melur Taluk so as to enable them to take the dead bodies to the burial ground peacefully within the time stipulated by this Honourable court., This petition came up for orders on this day. Upon perusing the petition and the affidavit filed in support thereof and upon hearing the arguments of Mr. M. Muthugeethaiyan, Special Government Pleader on behalf of the respondents, the Madras High Court, Madurai Bench made the following order (order of the court was made by Justice N. Kirubakaran). We have to hang our head in shame for having ill‑treated and discriminated against the Scheduled Caste people for centuries. Since they were not properly treated and offences were committed against members of Scheduled Castes and Scheduled Tribes, the Central Government passed the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, to give dignity and prevent crimes against members of Scheduled Castes and Scheduled Tribes. The said Act is sometimes alleged to be misused by some people, especially those employed in Government, but such aberrations are limited. Even today, they are not getting proper treatment and offences continue, and they are not receiving appropriate basic amenities., One such incident is the case at hand. Lack of a road to the graveyard forced Scheduled Caste people to pass through agricultural fields with standing crops in Maruthur Colony, Melur Taluk, as reported on page 4 of the Dinakaran newspaper dated 21‑12‑2020. Since there is no road facility available to these people, they are compelled to carry the dead body through the fields with standing crops, causing unnecessary trouble and untold hardships. Not only living persons but also dead bodies should be given dignity. The Scheduled Caste people should have roads to graveyards. This news report reflects that there are no proper pathways or roads to the graveyards., Therefore, the Madras High Court, Madurai Bench thinks it fit to take the above issue reported in the newspaper as a suo motu public interest litigation by making the following officials respondents: the Additional Chief Secretary to Government, State of Tamil Nadu, Adi Dravidar and Tribal Welfare Department, Secretariat, Chennai‑600009; the Additional Chief Secretary to Government, State of Tamil Nadu, Revenue Department, Secretariat, Chennai‑600009; the Additional Chief Secretary to Government, State of Tamil Nadu, Municipal Administration and Water Supply Department, Secretariat, Chennai‑600009., Mr. M. Muthugeethaiyan, learned Special Government Pleader, takes notice for the respondents. The respondents are directed to file a report with regard to the following queries: how many Scheduled Caste habitations are located in the State of Tamil Nadu; whether all the Scheduled Caste habitations have drinking water facilities, street lights, toilet facilities and roads to the graveyards; how many habitations do not have roads to graveyards; what steps have been taken, including acquisition of land for laying roads to graveyards; and by what time all the Scheduled Caste habitations will be provided with water facilities, street lights, toilet facilities and pathways to the graveyards., Mr. M. Muthugeethaiyan, learned Special Government Pleader appearing for the respondents, undertakes to file the response by 20‑01‑2021. As far as Maruthur Colony is concerned, the learned Special Government Pleader shall obtain instructions on 23‑12‑2020. Call on 23‑12‑2020 Sub‑Assistant Registrar (C.S.), Madurai Bench of Madras High Court, Madurai‑625023., Note: In view of the present lockdown owing to the COVID‑19 pandemic, a web copy of the order may be utilized for official purposes, but ensuring that the copy of the order presented is the correct copy shall be the responsibility of the advocate or litigant concerned.
id_1413	0	Reportable Civil Appeal Numbers 23-24 of 2024 Special Leave to Appeal (C) Numbers 8575-8576 of 2023. The State of Uttar Pradesh and others Appellants versus Association of Retired Supreme Court and High Court Judges at Allahabad and others Respondents. Dr Dhananjaya Y Chandrachud, Chief Justice of India., The present appeal arises from two orders of the Division Bench of the Allahabad High Court dated 4 April 2023 and 19 April 2023. The Impugned Orders raise significant questions about the separation of powers, the exercise of criminal contempt jurisdiction, and the practice of frequently summoning government officials to court. By its order dated 4 April 2023, the Allahabad High Court directed the Government of Uttar Pradesh to notify rules proposed by the Chief Justice of the Allahabad High Court pertaining to domestic help for former Chief Justices and former judges of the Allahabad High Court by the next date of hearing and directed certain officials to be present before the court if the order was not complied with. The State of Uttar Pradesh moved an application seeking a recall of the order, highlighting legal obstacles in complying with the directions. By its order dated 19 April 2023, the Allahabad High Court held that the recall application was contemptuous and initiated criminal contempt proceedings against various officials of the Government of Uttar Pradesh, taking the Secretary (Finance) and Special Secretary (Finance) into custody and issuing bailable warrants against the Chief Secretary and the Additional Chief Secretary (Finance)., The Impugned Orders arise from a writ petition instituted in 2011 before the Allahabad High Court by the Association of Retired Supreme Court and High Court Judges at Allahabad. The petition sought an increase in the allowance granted to former judges of the High Court for domestic help and other expenses. While the petition was pending, a three‑judge bench of this Court in P. Ramakrishnan Raju versus Union of India decided a batch of cases pertaining to post‑retirement benefits payable to former judges of the High Courts. In its judgment dated 31 March 2014, this Court appreciated the scheme formulated by the State of Andhra Pradesh and recommended that other states also formulate similar schemes for post‑retirement benefits to former judges of the High Courts, preferably within six months from the judgment., Subsequently, contempt petitions were instituted before this Court for non‑compliance with the decision in P. Ramakrishnan Raju. This Court directed all states to file affidavits detailing the steps taken to comply with the directions. By an order dated 27 October 2015, reported as Justice V.S. Dave, President, the Association of Retired Judges of Supreme Court and High Courts versus Kusumjit Sidhu and others, this Court closed the contempt proceedings against the State of Uttar Pradesh, noting that it had already framed a scheme in accordance with the Court’s directions. The Court held that a slight variation from the yardstick in the Andhra Pradesh scheme is permissible, keeping in mind local conditions, and directed states paying less than the yardstick to consider upward revision at the appropriate stage., The Government of Uttar Pradesh issued a Government Order dated 3 July 2018 revising the post‑retirement benefits for former judges of the High Court. The domestic help allowance payable to retired Chief Justices was increased to Rs 20,000 per month and to Rs 15,000 per month for former judges. After the death of a former Chief Justice or judge, the surviving spouse would be entitled to receive Rs 10,000 and Rs 7,500 per month respectively for life. In 2022, the Government of Andhra Pradesh increased the allowance to Rs 50,000 for former Chief Justices and Rs 45,000 for former judges of the High Court. The first respondent applied to amend the prayers in the writ petition seeking parity with the new scheme framed by the Andhra Pradesh government., Between 2019 and 2023, the Chief Justice of the Allahabad High Court proposed certain rules for providing domestic help to former Chief Justices and former judges of the Allahabad High Court. The preamble to the rules indicates that they were framed by the Chief Justice in the exercise of his purported powers under Article 229 of the Constitution. The operative portion of the rules includes provisions for selection of domestic help, contractual appointment, reimbursement of monthly remuneration by the High Court, and wages equivalent to the salary of a Class‑IV employee of the High Court., On 5 January 2023, the Allahabad High Court allowed the first respondent’s amendment application and directed the Principal Secretary, Law and Justice, Government of Uttar Pradesh to appear in person with records to expedite the matter. The court noted that the scheme pursuant to the direction of the Supreme Court was already in place but the quantum of benefits had not been revised since then, and that the matter should be placed before the Cabinet for approval. On 12 January 2023, the Principal Secretary appeared before the Allahabad High Court and informed that the rules proposed by the Chief Justice were pending consideration and that the matter would be placed before the Cabinet., On 19 January 2023, counsel for the Allahabad High Court submitted that while the queries about the rules were resolved, the State Government was raising queries in a piecemeal manner to keep the matter pending. The Additional Advocate General stated that the rules involved an amendment to the existing scheme and would be examined by the State Government expeditiously. On 23 March 2023, the Allahabad High Court expressed displeasure about the delay in notifying the rules and revising the post‑retirement benefits, and constrained the Finance Secretary, Government of Uttar Pradesh and all associated officers to appear with records on the next date fixed., On 4 April 2023, the Allahabad High Court passed the First Impugned Order. The Special Secretary, Finance and Principal Secretary, Law, Government of Uttar Pradesh were present. The Principal Secretary submitted that the matter had been placed before the Finance Department on six occasions without approval. The Secretary, Finance argued that the rules were beyond the competence of the Chief Justice and did not fall within the ambit of Article 229. The court observed that the objection regarding competence was being raised for the first time and described the attitude of the Finance Department as contemptuous. The court recorded that the Finance Department had no objection to amending the Government Order dated 3 July 2018 to incorporate the proposed rules and directed that the rules be notified forthwith, that the Finance Department approve within a week, and that the notification and approval be placed on record on the date fixed, failing which the Additional Chief Secretary, Finance and the officers present would appear on the date fixed., The State of Uttar Pradesh filed a recall application on 19 April 2023 seeking a recall of the First Impugned Order on the grounds that the Allahabad High Court did not have the power to pass the directions, that the rules did not fall within the ambit of Article 229, that concurrence of the Finance Department was required before notifying the rules, and that only Parliament and the Union government are competent to frame legislation or rules pertaining to post‑retirement benefits for former judges of the High Courts. On the same day, the Allahabad High Court passed the Second Impugned Order, noting that the Additional Chief Secretary (Finance) was absent but the Secretary (Finance) and Special Secretary (Finance) were present. The court held that the recall application constituted ex facie criminal contempt because it did not indicate valid reasons for non‑compliance with the First Impugned Order and contained false and misleading averments. The court ordered that the Secretary (Finance) and Special Secretary (Finance) be taken into custody for framing of charges and issued bailable warrants against the Chief Secretary and the Additional Chief Secretary (Finance) to ensure their presence., The Supreme Court of India, by an interim order dated 20 April 2023, stayed the operation of the Impugned Orders and directed that the officials of the Government of Uttar Pradesh who had been taken into custody be released forthwith. The order also directed the Judicial Registrar of this Court to communicate the order telephonically and by email to the Registrar General of the Allahabad High Court for immediate compliance. The Supreme Court heard submissions from Mr Tushar Mehta, Solicitor General, Mr K.M. Natraj, Additional Solicitor General on behalf of the Union of India, Mr Nishit Agrawal, counsel for the Association of Retired Supreme Court and High Court Judges at Allahabad, and Ms Preetika Dwivedi, counsel for the Allahabad High Court on the administrative side., The following broad points of law arise for consideration: (i) whether the Allahabad High Court had the power to direct the State Government to notify rules proposed by the Chief Justice pertaining to post‑retirement benefits for former judges of the High Court; (ii) whether the power of criminal contempt could be invoked by the Allahabad High Court against officials of the Government of Uttar Pradesh on the ground that the application for recall was contemptuous; and (iii) the broad guidelines that must guide courts when they direct the presence of government officials before the court. Article 229 of the Constitution pertains only to the conditions of service of officers and servants of the High Courts and does not include judges, whether sitting or retired. Consequently, the Chief Justice does not have the power under Article 229 to make rules concerning post‑retirement benefits payable to former Chief Justices and judges of the High Court. The reliance on judgments in P. Ramakrishnan Raju and Justice V.S. Dave to justify the promulgation of such rules is an erroneous and over‑expansive interpretation. The Allahabad High Court, acting under Article 226, cannot usurp the functions of the executive or issue a writ of mandamus to compel the State Government to notify the rules. Such directions are impermissible and contrary to the separation of powers envisaged by the Constitution., The Contempt of Courts Act, 1971 defines civil contempt as 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 defines criminal contempt as the publication or act which scandalises, lowers the authority of any court, prejudices or interferes with the due course of any judicial proceeding, or obstructs the administration of justice. The Act makes a clear distinction between the two types of contempt. Wilful disobedience amounts to civil contempt, whereas the threshold for criminal contempt is higher and more stringent.
id_1413	1	It involves scandalising or lowering the authority of any court; prejudicing or interfering with judicial proceedings; or interfering with or obstructing the administration of justice., In the second Impugned Order, the High Court of Uttar Pradesh held that the actions of the officials of the Government of Uttar Pradesh constituted criminal contempt as there was no valid reason to not comply with the earlier Order. Even if the High Court's assessment is assumed to be correct, non‑compliance with the First Impugned Order could at most constitute civil contempt. The High Court failed to give any reasoning for how the purported non‑compliance with the First Impugned Order was of the nature to meet the standard of criminal contempt. The High Court acted in haste by invoking criminal contempt against the officials of the Government of Uttar Pradesh and directing that they be taken into custody., In our considered opinion, however, even the standard for civil contempt was not met in the facts of the present case. In a consistent line of precedent, the Supreme Court of India has held that while initiating proceedings of contempt of court, the court must act with great circumspection. It is only when there is a clear case of contemptuous conduct that the alleged contemnor must be punished. The power of the High Courts to initiate contempt proceedings cannot be used to obstruct parties or their counsel from availing legal remedies., In the present case, the State of Uttar Pradesh was availing its legitimate remedy of filing a recall application. From a perusal of the record, it appears that the application was filed in a bona fide manner. Not only had the Finance Department raised its concerns regarding the competence of the Chief Justice before the High Court but its previous conduct, including file notings of the department and letters to the Central Government, indicate that this objection had been raised by them in the past. The legal position taken by the Government in the recall application was evidently based on its desire to avail its legal remedy and not to willfully disobey the First Impugned Order., The objections raised by the Government of Uttar Pradesh with regard to legal obstacles in complying with the First Impugned Order were never adjudicated by the High Court. Instead, the High Court regarded the objection as an attempt to obstruct justice, without even a cursory attempt to provide reasons. Applying the standards delineated above, it is clear that the actions of the Government of Uttar Pradesh did not constitute even civil contempt, let alone criminal contempt. The circumstances definitely did not warrant the High Court acting in haste by directing that the officials present before the court be taken into custody. This summary procedure, although permitted under Section 14 of the Contempt of Courts Act, cannot be invoked as a matter of routine and is reserved for only extraordinary circumstances., Such summary procedure, as has been held by the Supreme Court of India in Leila David v. State of Maharashtra, can only be invoked in exceptional cases, such as instances where, after being given an opportunity to explain their conduct, the contemnors have shown no remorse for their unseemly behavior and have further filed a fresh writ petition repeating scandalous remarks and introducing new dimensions of intemperate language to denigrate and scandalise the Court. No such situation prevailed in the present case. Therefore, the invocation of criminal contempt and taking the government officials into custody was not warranted., Before concluding, we must note the conduct of the High Court of Uttar Pradesh in frequently summoning officials of the Government of Uttar Pradesh. The appearance of government officials before courts must not be reduced to a routine measure in cases where the government is a party and can only be resorted to in limited circumstances. The power to summon the presence of government officials must not be used as a tool to pressurise the government, particularly under the threat of contempt., The Supreme Court of India must also refrain from relying on mere undertakings by government officials in court, without a sworn affidavit or instructions to law officers such as the Attorney General, Solicitor General, or the Advocate Generals of the states. Courts must be cognizant of the role of law officers before summoning the physical presence of government officials., Under Article 76 of the Constitution of India, the Attorney General is appointed by the President and serves in an advisory capacity, providing legal counsel to the Union Government. The responsibilities of the Attorney General include advising on legal matters, performing assigned legal duties, and representing the government in various courts. Similarly, under Article 165 of the Constitution, the Advocate General is appointed by the Governor of each state. The Advocate General provides legal advice to the state government, performs legal duties as assigned, and discharges functions conferred by the Constitution. Several other law officers also represent the Union and the states, including the Solicitor General, Additional Solicitor General, and Additional Advocates General for the states. They obtain instructions from the various departments of the government and represent the government before the courts., Law officers act as the primary point of contact between the courts and the government. They not only represent the government as an institution but also represent the various departments and officials that comprise the government. In Mohd. Iqbal Khandaly v. Abdul Majid Rather, the Supreme Court of India observed that there was no justification to direct the Additional Advocate General not to appear for the appellant in a contempt petition and to direct that he should merely assist the court., In the present case, instead of adjudicating on the legal position taken by the Government of Uttar Pradesh on affidavit or hearing the Additional Advocate General present in the court, the High Court repeatedly summoned government officials. The government was also directed to notify the Rules based on a no‑objection from the officials of the Finance Department purportedly made before the High Court, which is now contested by the state. Such situations can be avoided where submissions on affidavit can be sought and the law officers of the Government are present in court with instructions. The issuance of bailable warrants by the High Court against officials, including the Chief Secretary, who was not even summoned in the first place, further indicates the attempt by the High Court to unduly pressurise the government., In State of Uttar Pradesh v. Manoj Kumar Sharma, the Supreme Court of India frowned upon the frequent summoning of government officials at the drop of a hat. The Court held: \A practice has developed in certain High Courts to call officers at the drop of a hat and to exert direct or indirect pressure. The line of separation of powers between Judiciary and Executive is sought to be crossed by summoning the officers and in a way pressurising them to pass an order as per the whims and fancies of the Court. Public officers of the Executive are also performing their duties as the third limb of governance. The actions or decisions by the officers are not to benefit them, but as custodians of public funds and in the interest of administration, some decisions are bound to be taken. It is always open to the High Court to set aside a decision which does not meet the test of judicial review, but summoning officers frequently is not appreciable at all. The same is liable to be condemned in the strongest words. Thus, we feel, it is time to reiterate that public officers should not be called to court unnecessarily. The dignity and majesty of the Court is not enhanced when an officer is called to court. Respect to the Court has to be commanded and not demanded and the same is not enhanced by calling the public officers. The presence of a public officer comes at the cost of other official engagements demanding their attention. Sometimes, the officers even have to travel long distance. Therefore, summoning of the officer is against the public interest as many important tasks entrusted to him get delayed, creating extra burden on the officer or delaying the decisions awaiting his opinion. The court proceedings also take time, as there is no mechanism of fixed time hearing in courts as of now. The courts have the power of pen which is more effective than the presence of an officer in court. If any particular issue arises for consideration before the court and the advocate representing the State is not able to answer, it is advised to write such doubt in the order and give time to the State or its officers to respond.\, Courts must refrain from summoning officials as the first resort. While the actions and decisions of public officials are subject to judicial review, summoning officials frequently without just cause is not permissible. Exercising restraint, avoiding unwarranted remarks against public officials, and recognizing the functions of law officers contribute to a fair and balanced judicial system. Courts across the country must foster an environment of respect and professionalism, duly considering the constitutional or professional mandate of law officers, who represent the government and its officials before the courts. Constantly summoning officials of the government instead of relying on the law officers representing the government runs contrary to the scheme envisaged by the Constitution., Enriched by the valuable insights shared in discussions with Justice J.B. Pardiwala and Justice Manoj Misra, we have framed a Standard Operating Procedure (SOP) specifically addressing the appearance of Government Officials before the courts. At its core, this SOP emphasizes the critical need for courts to exercise consistency and restraint. It aims to serve as a guiding framework, steering courts away from the arbitrary and frequent summoning of government officials and promoting maturity in their functioning. The SOP is set out below:, Standard Operating Procedure (SOP) on Personal Appearance of Government Officials in Court Proceedings. This SOP is applicable to all court proceedings involving the government in cases before the Supreme Court of India, High Courts and all other courts acting under their respective appellate and/or original jurisdiction or proceedings related to contempt of court., 1. Personal presence pending adjudication of a dispute. 1.1 Based on the nature of the evidence taken on record, proceedings may be classified into three categories: (a) Evidence‑based Adjudication: These proceedings involve evidence such as documents or oral statements. A government official may be required to be physically present for testimony or to present relevant documents. Rules of procedure, such as the Code of Civil Procedure, 1908, or the Criminal Procedure Code, 1973, govern these proceedings. (b) Summary Proceedings: These rely on affidavits, documents, or reports and are typically governed by the Rules of the Court set by the High Court and principles of natural justice. (c) Non‑adversarial Proceedings: While hearing non‑adversarial proceedings, the court may require the presence of government officials to understand a complex policy or technical matter that the law officers of the government may not be able to address., 1.2 Other than in cases falling under 1.1(a), if the issues can be addressed through affidavits and other documents, physical presence may not be necessary and should not be directed as a routine measure., 1.3 The presence of a government official may be directed, inter alia, in cases where the court is prima facie satisfied that specific information is not being provided or is intentionally withheld, or if the correct position is being suppressed or misrepresented., 1.4 The court should not direct the presence of an official solely because the official's stance in the affidavit differs from the court's view. If the matter can be resolved based on existing records, it should be decided on merits accordingly., 2. Procedure prior to directing personal presence. 2.1 In exceptional cases wherein the in‑person appearance of a government official is called for by the court, the court should allow as a first option the officer to appear through video conferencing. 2.2 The invitation link for video conference appearance must be sent by the Registry of the court to the official's mobile number(s) or e‑mail ID(s) by SMS/email/WhatsApp at least one day before the scheduled hearing. 2.3 When personal presence is directed, reasons should be recorded as to why such presence is required. 2.4 Due notice for in‑person appearance, giving sufficient time, must be served in advance to the official., 3. Procedure during the personal presence of government officials. 3.1 Scheduled Time Slot: The court should, to the extent possible, designate a specific time slot for addressing matters where personal presence is mandated. 3.2 Conduct of officials: Government officials participating in the proceedings need not stand throughout the hearing; standing should be required only when the official is responding to or making statements in court. 3.3 Oral remarks with the potential to humiliate the official should be avoided. 3.4 The court must refrain from commenting on the physical appearance, educational background, or social standing of the official. 3.5 Courts must cultivate an environment of respect and professionalism. Comments on the dress of the official should be avoided unless there is a violation of the specified dress code applicable to their office., 4. Time period for compliance with judicial orders by the Government. 4.1 Ensuring compliance with judicial orders involving intricate policy matters requires navigating various levels of decision‑making by the Government. The court must consider these complexities before establishing specific timelines for compliance. A reasonable timeframe should be acknowledged and accommodated as per the specifics of the case. 4.2 If an order has already been passed and the government seeks a revision of the specified timeframe, the court may entertain such requests and permit a revised, reasonable timeframe for compliance, allowing a hearing to consider modifications., 5. Personal presence for enforcement/contempt of court proceedings. 5.1 The court should exercise caution and restraint when initiating contempt proceedings, ensuring a judicious and fair process. 5.2 Preliminary determination of contempt: In a proceeding instituted for contempt by wilful disobedience of its order, the court should ordinarily issue a notice to the alleged contemnor seeking an explanation, instead of immediately directing personal presence. 5.3 After the notice, the court should consider the response and, based on its severity, may direct personal presence of the contemnor. 5.4 When personal presence is directed, the court should provide advance notice and allow the officer, as a first option, to appear through video conferencing. 5.5 Addressing non‑compliance: The court should evaluate instances of non‑compliance, taking into account procedural delays or technical reasons. If the original order lacks a compliance timeframe, an appropriate extension should be considered. 5.6 When the order specifies a compliance deadline and difficulties arise, the court should permit the contemnor to submit an application for an extension or stay before the issuing court or the relevant appellate court., In a nutshell, the conclusions reached in this judgment are as follows: (a) The High Court of Uttar Pradesh did not have the power to direct the State Government to notify Rules proposed by the Chief Justice pertaining to post‑retirement benefits for former Judges of the High Court. The Chief Justice did not have the competence to frame the rules under Article 229 of the Constitution. Further, the High Court, acting on the judicial side, does not have the power to direct the Government to frame rules proposed by it on the administrative side. (b) The power of criminal contempt could not be invoked by the High Court against officials of the Government of Uttar Pradesh on the ground that the application for recall of the First Impugned Order was contemptuous. The actions of the officials do not meet the standard of either criminal contempt or civil contempt. (c) The conduct of the High Court of Uttar Pradesh in frequently summoning government officials to exert pressure on the government, under the threat of contempt, is impermissible. Summoning officials repeatedly, instead of relying on the law officers representing the government or the submissions of the government on affidavit, runs contrary to the scheme envisaged by the Constitution. (d) The SOP on Personal Appearance of Government Officials in Court Proceedings framed by this judgment must be followed by all courts across the country. All High Courts shall consider framing rules to regulate the appearance of Government officials in court, after taking into account the SOP formulated above., Both the Impugned Orders dated 4 April 2023 and 19 April 2023 are set aside and the appeals are disposed of. The High Court of Uttar Pradesh is at liberty to hear the writ petition in view of the observations made in this judgment., The Registry is directed to communicate the judgment to the Registrar General of every High Court.
id_1414	0	Through: Mr. Pramod Kumar Dubey, Senior Advocate with Mr. Abhik Chimni, Ms. Pallavi Garg, Mr. Anant Khajuria, Mr. Saharsh, Mr. Satyam Sharma, Ms. Aditi, Mr. Akshat Sharma and Ms. Riya Pahuja, Advocates Versus Through: Ms. Meenakshi Dahiya, Assistant Public Prosecutor for the State with Sub‑Inspector Reena, Police Station Dwarka Sector 23, Mr. Vikram Singh Jakhar, Mr. Mohit Yadav, Ms. Varunika Sharma and Mr. Saurabh Sharma, Advocates for prosecutrix along with prosecutrix in person., The applicant, by the present application under Section 438 of the Code of Criminal Procedure, 1973, is seeking anticipatory bail in FIR No. 180/2023 dated 19 July 2023 registered under Sections 313, 323, 376, 377, 506, 509, 201 and 120B of the Indian Penal Code at Police Station Sector 23 Dwarka, Delhi., As per the FIR, the prosecutrix met the applicant in February 2022 at the college where the applicant was a student and the prosecutrix was a professor. The prosecutrix alleges that in May 2022, while on an official trip to Manali, they got married in a small temple and the applicant promised to legally marry her in future., She further alleges that she met the family members of the applicant on 4 June 2022 at his home who had no objection to their marriage. Later, on 4 February 2023, the applicant disappeared and it was only on 7 February 2023 that the applicant contacted the prosecutrix and informed her that he was being kept captive in his maternal aunt's home., Further, as per the FIR, after learning about the pregnancy of the prosecutrix in April 2023, the applicant and his family forced her to abort the child, in furtherance of which a pill was administered to her by the applicant. Thereafter, in June 2023, the prosecutrix became pregnant again. On sharing the same with the applicant, he was very happy. Later, on 1 July 2023, the applicant took an advance of Rs. 2,50,000 from the prosecutrix and left. On 2 July 2023, the applicant booked an appointment for the prosecutrix with a gynecologist in Gurgaon for 4 July 2023. Lastly, as per the FIR, the prosecutrix last contacted the applicant on 4 July 2023 at 08:00 AM., The learned senior counsel for the applicant submits that the applicant does not seek to harm or threaten the prosecutrix. On the contrary, he submits that the prosecutrix has on multiple instances portrayed her intentions to intimidate the applicant and his family. He further submits that the present FIR is filed with the sole intention of harassing the applicant who is a 20‑year‑old student in the college where the prosecutrix was a professor., The learned senior counsel further submits that the applicant has participated in the investigation on multiple occasions between 31 July 2023 and 12 September 2023. He further submits that on 14 September 2023, after dismissal of the anticipatory bail application, a notice under Section 41A of the Code of Criminal Procedure was immediately issued by the investigating officer to the applicant requiring his presence. Although on 6 October 2023, proceedings under Section 82 were initiated, the applicant has not been declared a proclaimed offender. Placing reliance on Sarla Devi v. State of NCT of Delhi (2015) SCC OnLine Del 9933, he submits that initiation of Section 82 proceedings does not have any bearing on the present application seeking anticipatory bail, as the applicant is yet to be declared a proclaimed offender. The learned senior counsel further submits that the present case is fit for grant of anticipatory bail as the applicant has clean antecedents, is not a flight risk and shall not tamper with evidence or influence witnesses., Notice was issued and the status report was called for., The learned Assistant Public Prosecutor appearing for the State has opposed the present application of the applicant in view of the heinousness of the offences alleged and the sentence in case of conviction. She submits that initiation of Section 82 proceedings against the applicant causes serious impediment to the present application. She further submits that the learned Trial Court dismissed the anticipatory bail application of the applicant noting the fact that he had threatened the prosecutrix in the police station. Relying on P. Chidambaram v. Directorate of Enforcement (2020) 13 SCC 791, the learned APP submits that grant of anticipatory bail would lead to the applicant influencing the prosecutrix and tampering with the evidence., Delhi High Court has heard the learned senior counsel for the applicant and the learned APP and perused the documents on record including the status report filed on behalf of the State along with the judgment therewith., While considering a case like the present one, involving offences under Section 376 of the Indian Penal Code, Delhi High Court must be cognizant of the heinousness, gravity and severity of punishment involved, but must also give sufficient weightage to the facts and circumstances, including the antecedents and background of the parties., In any event, Delhi High Court cannot be oblivious to the fact that the prosecutrix, admittedly a fully grown adult lady aged around 35 years, who at the time of coming into contact with the applicant was a young boy aged less than around 20 years. It is also not in dispute that the prosecutrix was already married to her ex‑husband, however was undergoing divorce., The Court also notes that the prosecutrix holds a Ph.D. in Marketing, is highly educated and gainfully employed as a professor in a reputed university in Gurgaon, whereas the applicant is merely a student studying in the same university. Thus, the prosecutrix was, admittedly, in a guru‑shishya relationship with the applicant., Coming to the facts, it would not be wrong for Delhi High Court to conclude at this stage that the prosecutrix is a person of above‑average intelligence, well aware of the rights of a married woman and that the applicant had not reached marital age yet. It would also not be wrong to infer that she was aware of the repercussions of entering into a relationship with such an underage individual. Nevertheless, the prosecutrix on her own chose to enter into a relationship with the applicant and continued it for more than a year., The fact of the matter is that, admittedly, since coming into contact in February 2022 with the applicant till the filing of the complaint, just prior to registration of the present FIR, the prosecutrix had never made any complaint of any kind against him. It is also admitted that on 4 July 2023, the prosecutrix herself lodged a missing report before the same police station regarding the applicant. It is also her case that in the interim she not only met and was in contact with the parents of the applicant but was aware of where his sister was studying and where his relatives were residing. Not only that, it is her own case that she had transferred Rs. 2,50,000 to the account of the applicant., All the aforesaid show the love, care and affection the prosecutrix had for the applicant. The fact that she entered into marriage with the applicant in a small temple in Shimla, which though being a matter of trial, is living proof of the same. Prima facie, it seems that she was in a relationship with the applicant out of choice and desire rather than compulsion or force. Moreover, she voluntarily chose to proceed with the applicant with open eyes, open ears and an open mind., It is a matter of fact that the present FIR was registered on 19 July 2023 whereas the prosecutrix admittedly came in contact with the applicant in February 2022 and continued her relationship with him for more than a year till the registration thereof. There is no plausible explanation given for the delay in registration of the present FIR., The prosecutrix does not have any threat perception from the applicant as she has herself visited the college of the applicant's sister and the residence of his relatives along with the investigating officer after registration of the present FIR. Though it is stated that the applicant extended threats in the police station after registration of the FIR, the prosecutrix has not lodged any complaint regarding that. It is not in dispute that the applicant, on being granted interim bail by the learned Trial Court, not only joined and participated in the investigation on as many as fourteen occasions and has also handed over his mobile phone to the investigating officer., The applicant is a young student aged around 20 years with clear antecedents, having no previous history of being involved in any other offences or having any other FIR registered against him., Though an issue regarding an Instagram post put up by one Ms. Deepika Narayan Bharadwaj at the behest of the applicant was raised by the learned APP for the State, at this stage the same is too far‑fetched as it requires due adjudication and trial. In any event, the same is not relevant for consideration while Delhi High Court is considering grant of anticipatory bail to the applicant., Lastly, it is relevant to mention that although proceedings under Section 82 of the Code of Criminal Procedure have been initiated against the applicant, the same is under challenge as the applicant has already filed a criminal revision petition which is pending before the learned Trial Court. As of date, the applicant is only a proclaimed person under Section 82(1) of the Code of Criminal Procedure, who has been evading arrest but is yet to be declared a proclaimed offender under Section 82(4). Had the applicant already been declared as a proclaimed offender, the present application seeking anticipatory bail before this Court would not have been maintainable. The position being not so, there is no bar for the applicant in filing the present application and the same is maintainable in the eyes of law. Moreover, the filing of the revision petition before the learned Trial Court is also not a bar to filing of the same petition before this Court., Upon a due and meticulous deliberation of the overall facts and circumstances, Delhi High Court is of the opinion that the applicant has satisfied the parameters for grant of anticipatory bail and prima facie made out a good case thereof. Even otherwise, the Court is not required to critically analyse the evidence on record at the stage of considering grant of anticipatory bail to the applicant., Accordingly, the applicant is granted anticipatory bail in FIR No. 180/2023 dated 19 July 2023 registered under Sections 313, 323, 376, 377, 506, 509, 201 and 120B of the Indian Penal Code at Police Station Sector 23 Dwarka, Delhi. In the event of his arrest, the applicant shall be released after furnishing a personal bond in the sum of Rs. 1,00,000 (Rupees One Lakh Only) along with one surety of the like amount by a family member or friend having no criminal case pending against them, subject to the satisfaction of the learned Trial Court and further subject to the following conditions:, i. The applicant shall not leave the National Capital Territory of Delhi without prior permission of this Court and shall ordinarily reside at the address as per the Trial Court records. If he wishes to change his residential address, he shall immediately intimate the same to the investigating officer by way of an affidavit. ii. The applicant shall surrender his passport to the investigating officer within three days. If he does not possess the same, he shall file an affidavit before the investigating officer to that effect within the stipulated time. iii. The applicant shall appear before the Court as and when the matter is taken up for hearing. iv. The applicant shall join investigation as and when called by the investigating officer concerned. He shall not obstruct or hamper the police investigation and shall not tamper with the evidence collected or yet to be collected by the police. v. The applicant shall provide all his mobile numbers to the investigating officer concerned which shall be kept in working condition at all times and shall not switch off or change the mobile number without prior intimation to the investigating officer. The mobile location shall be kept on at all times. vi. The applicant shall report to the investigating officer at Police Station Sector 23 Dwarka, Delhi once every month in the first week of the month unless leave of every such absence is obtained from the learned Trial Court. vii. The applicant shall not indulge in any criminal activity and shall not communicate with or come in contact with any of the prosecution witnesses, the victim or any member of the victim's family or tamper with the evidence of the case or try to dissuade them from disclosing such facts to the Court or to any police officials., Accordingly, the present application is allowed and disposed of in the aforesaid terms., Copy of this order be sent to the concerned S.H.O. for necessary information and compliance thereof., Needless to say, the observations made, if any, on the merits of the matter are purely for the purposes of adjudicating the present application and shall not be construed as expressions on the merits of the matter., October 31, 2023 / akr
id_1416	0	Versus Appearance: Mr. Param R. Buch (advocate) for the Respondent No. 2. Date: 11 October 2023. The present petition is filed with a prayer to quash and set aside the impugned First Information Report numbered I‑31 of 2017, registered with DCB Police Station, Ahmedabad, on 3 April 2017 for offences punishable under Sections 406, 420 and 34 of the Indian Penal Code. The present petitioners are accused Nos. 2 and 4., Brief facts of the case are as follows: on 15 September 2013, the complainant and her husband visited M/s. Gitanjali Jewellers for purchases and the bill mentioned M/s. Divyanirman Jewels, Shop No. 6, ISKCON Centre, Shivranjani Crossroads, Satellite, Ahmedabad. The showroom personnel informed them about monthly installment schemes for diamonds and gold, stating that one installment would be borne by the company. The complainant agreed to invest Rs 5,000 per month in a gold‑coin scheme for twelve months. Subsequently, a person visited their residence, provided a “Tamanna card” and collected Rs 10,000 (Rs 5,000 × 2) for two schemes. Until 25 May 2014, a person continued to collect Rs 10,000 monthly as installments., In July 2014, the complainant received a telephone call from Gitanjali Jewellers informing that the franchisee had been terminated. The complainant and her husband went to the store, offered to deposit the remaining three installments and inquired about receiving gold coins. They were told that no gold coins were available but diamonds could be purchased. The complainant declined to purchase diamonds and requested either gold coins or a refund of the installment money. Subsequent communications sent to various e‑mail addresses of the Gitanjali Group detailing the amount invested received no reply. Further inquiry revealed that the showroom had closed down. The franchisee owner, Mr. Digvijaysinh Jadeja, could not be satisfactorily located., The complainant alleges that she invested in the scheme based on promises of financial benefits, and that by refusing to deliver gold coins or return the investment, the offences of criminal breach of trust and cheating have been committed. The accused are: Accused No. 1 – Digvijay Jadeja (franchisee owner of M/s. Divyanirman Jewels); Accused No. 2 – Mehul Chinubhai Choksi (described as Managing Director of Gitanjali Group); Accused No. 3 – Aniyath Shivraman Nair (Director of Gitanjali Group); and Accused No. 4 – Chetna Jayantilal Zhaveri (Director of Gitanjali Group). The First Information Report is essentially a recovery proceeding in the form of a criminal complaint for offences under Sections 406, 420 and 34 of the Indian Penal Code., The petitioners state that the Ahmedabad stores referred to in the First Information Report were run by M/s. Divyanirman Jewels, owned and managed by Accused No. 1 Digvijaysinh Jadeja, a franchisee of Gitanjali Jewellery Retail Limited (GJRL), the company of the Gitanjali Group that manages the franchisee business. No investment made by the complainant was ever passed from M/s. Divyanirman Jewels to Gitanjali Jewellery Retail Limited. In fact, the franchisee owner Mr. Digvijaysinh Jadeja has not returned jewellery belonging to GJRL nor forwarded sale proceeds to GJRL. GJRL has filed Special Civil Suit No. 433 of 2014 before the Senior Civil Judge, Vadodara, against M/s. Divyanirman Jewels, inter alia challenging fraudulent documents, praying for return of jewellery, sales proceeds and damages. M/s. Divyanirman Jewels has also filed a suit against GJRL and others; both proceedings are pending., It is also stated that the matter has been settled between the petitioners and the complainant. As per the complainant’s letter dated 25 August 2017, she has waived her claims and does not wish to pursue the criminal proceedings., Being aggrieved by the impugned complaint, the petitioners have filed the present petition. Learned advocate Mr. Salil Thakore appears for the petitioners, Mr. Param Buch for the original complainant, and Mr. Vishal Anandjiwala and Mr. Kathan Gandhi for the applicant of Criminal Miscellaneous Application No. 1 of 2018 (original accused No. 1). Mr. Dhawan Jayswal, learned Additional Public Prosecutor, appears for the respondent State., Mr. Salil Thakore, learned advocate for the petitioners, submits that prima facie no offence is made out from the contents of the impugned complaint against the present petitioners. He argues that none of the ingredients of the offences alleged in the First Information Report are satisfied with respect to the petitioners. He contends that the accused persons are Directors of the company and that vicarious liability cannot be fastened on Directors unless a specific role is attributed to them. He further submits that, at most, the matter amounts to a breach of contract arising from the sale of goods, indicating an absence of mens rea, and therefore no offence can be attributed to the petitioners. In support of his submissions, he relies on the following decisions: Lavesh v. State (Government of NCT of Delhi); Gold Quest International Private Limited v. State of Tamil Nadu and Others, (2014) 15 Supreme Court Cases 235; Thermax Limited and Others v. K. M. Johny and Others, 2011 (13) Supreme Court Cases 412; and HDFC Securities Limited and Others v. State of Maharashtra and Another, 2017 (1) Supreme Court Cases 640., He further submits that the present petition should be allowed as no prima facie case is made out against the petitioners. He notes that Accused No. 2 Mehul Choksi is not cooperating in the investigation, has absconded and is now settled in a foreign country, and therefore discretion may not be exercised in his favour. He adds that if the Gujarat High Court is not inclined to consider the case of petitioner No. 1, he is not pressing that petition and is pressing only the petition of petitioner No. 2, who is a Director of the company and joined after the alleged incident. He relies on the decision of the Supreme Court of India in State of Haryana v. Bhajan Lal, AIR 1992 SC 604, to argue that the petition may be allowed for petitioner No. 2. He further submits that no offence under Sections 406 and 420 of the Indian Penal Code is made out against petitioner No. 2 as there is no entrustment of property nor intention to cheat from the inception., Learned advocate Mr. Vishal Anandjiwala, appearing for original accused No. 1 in the impugned First Information Report, strongly opposes the submissions of Mr. Salil Thakore. He submits that petitioner No. 1 has duped citizens across the country and has fled India to avoid prosecution, and therefore his case should not be considered. He contends that petitioner No. 2, a Director of Gitanjali Gems, is involved in business transactions with his client, the franchisee holder, and that the company and its Directors have failed to fulfil promises made to customers. He argues that attractive schemes were offered, the promises were not honoured, and the Directors, being key officers, cannot be presumed ignorant of the company’s affairs. He prays that the petition be dismissed, relying on the judgment in Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra and Others, 2021 Supreme Court Cases OnLine SC 315, and CBI v. Maninder Singh, (2016) 1 Supreme Court Cases 389., The learned Additional Public Prosecutor, Mr. Dhawan Jaiswal, supports the submissions of Mr. Anandjiwala and furnishes a report stating that petitioner No. 1 Mehul Chinubhai Choksi has fled abroad and, in view of the protection granted by the Gujarat High Court, petitioner No. 2 could not be arrested, and therefore the investigation has not proceeded further. He submits that, based on the investigation, a prima facie offence is made out against the accused persons and that the Gujarat High Court should not exercise its powers under Section 482 of the Criminal Procedure Code, which are to be exercised sparingly in view of various decisions of the Supreme Court of India. Accordingly, he prays to dismiss the present petition., Learned advocate Mr. Param Buch, appearing for the complainant, submits that during the pendency of this petition the original complainant, Ms. Mita Hemant Mankad, has expired. He therefore requests that the Gujarat High Court may pass an appropriate order by considering the contents of the complaint and other material available on record., Having considered the rival submissions, I note that the First Information Report specifically mentions a Diamond Saving Scheme and a Gold Saving Scheme floated by M/s. Divyanirman Jewels. The premises from which the complainant purchased the ornaments were a franchisee of Gitanjali Gems, and petitioners Nos. 1 and 2 are Directors of this company. It is clear that petitioner No. 1, Mr. Mehul Choksi, left the country long ago and is not cooperating with any prosecution, although various complaints have been filed against Gitanjali Gems and against him individually. Consequently, considering the conduct of petitioner No. 1, the Gujarat High Court will not entertain the petition on his behalf, as he shows no respect for the process of law and cannot be considered for equitable relief., Since the petition is argued for quashing of the proceedings against petitioner No. 2, the Gujarat High Court may refer to the observations of the Supreme Court of India in State of Haryana v. Bhajan Lal, where the Court illustrated categories of cases wherein inherent powers under Section 482 of the Criminal Procedure Code may be exercised to prevent abuse of process or to secure the ends of justice. The categories include: (1) where the allegations in the First Information Report, even if taken at face value, do not prima facie constitute any offence; (2) where the allegations and accompanying material do not disclose a cognizable offence justifying investigation under Section 156(1) of the Code; (3) where the uncontroverted allegations and evidence do not disclose the commission of any offence; (4) where the allegations constitute only a non‑cognizable offence, requiring a Magistrate’s order under Section 156(2); (5) where the allegations are so absurd and inherently improbable that no prudent person can conclude there is sufficient ground for proceeding; (6) where a specific legal bar exists in the relevant statute; (7) where the proceeding is manifestly mala fide or maliciously instituted with an ulterior motive., In Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra and Others, 2021 Supreme Court Cases OnLine SC 315, the Supreme Court of India held that: (i) the police have a statutory right and duty to investigate cognizable offences; (ii) courts will not thwart investigations into cognizable offences; (iii) only where no cognizable offence is disclosed in the First Information Report will the court refuse to permit investigation; (iv) the power of quashing should be exercised sparingly and only in the rarest of rare cases; (v) while examining a First Information Report, the court cannot inquire into the reliability of the allegations; (vi) criminal proceedings should not be scuttled at the initial stage; (vii) quashing of a complaint or First Information Report should be an exception; (viii) courts are barred from usurping police jurisdiction; (ix) the functions of the judiciary and police are complementary; (x) except in exceptional cases where non‑interference would result in miscarriage of justice, the court should not interfere at the investigation stage; (xi) the inherent powers of the court do not confer arbitrary jurisdiction; (xii) the First Information Report is not required to disclose all facts; (xiii) the wide power under Section 482 requires caution; (xiv) the court may quash the First Information Report if the parameters laid down in R. P. Kapur and Bhajan Lal are satisfied; (xv) the court need only consider whether the allegations disclose a cognizable offence, not whether they make out such an offence on merits; (xvi) an interim order of stay of investigation should be passed with circumspection and not routinely; (xvii) where an interim order is passed, the court must give brief reasons; (xviii) the term “no coercive steps to be adopted” must be clarified when used., The relevant provisions of the Indian Penal Code alleged against the petitioners are: Section 405 – Criminal breach of trust; Section 406 – Punishment for criminal breach of trust; Section 415 – Cheating; and Section 420 – Cheating and dishonestly inducing delivery of property., Prima facie, the ingredients of the alleged offences are satisfied and the complaint must proceed further. The false promises made through the franchisee led to the closure of showrooms and the cheating of investors across multiple locations where Gitanjali Gems operated. The scale of the alleged scam indicates that liability can be fastened on the persons responsible for the affairs of Gitanjali Gems, including the Directors who are actively involved in management. While the contention that petitioner No. 2 was appointed as Director after the transactions is noted, it is a matter for trial after proper evidence is led., Since a prima facie case is made out against the petitioners and a charge sheet has been filed, no ground exists for the Gujarat High Court to exercise its powers under Section 482 of the Criminal Procedure Code to quash the proceedings. The applicants may raise all contentions as defence at trial. Considering the material on record, a cognizable offence appears to have been committed, constituting a large‑scale scam and an offence against society., Reference is made to the judgment in CBI v. Maninder Singh, (2016) 1 Supreme Court Cases 389, where the Court observed that settlement with a bank does not justify quashing criminal proceedings where forged documents were used to obtain credit and public money was embezzled., In Nikhil Merchant’s case, the High Court quashed criminal proceedings on the ground of settlement with the bank. However, the present case is distinguishable because the chargesheet refers to multiple transactions based on forged documents, including forged Bills of Lading and invoices, and no consignment was actually sent. The allegations involve forgery for the purpose of cheating and misuse of forged documents to embezzle public money., The inherent power of the Gujarat High Court under Section 482 of the Criminal Procedure Code should be used sparingly. It may be exercised only when there would be manifest injustice or abuse of process if not exercised. In economic offences, the impact on the public and society must be considered; quashing proceedings merely because the accused settled with the bank would be a misplaced sympathy and would aggrieve the community., In the recent decision of Vikram Anantrai Doshi, the Supreme Court of India distinguished Nikhil Merchant’s case and held that cheating by banks exposes fiscal impurity and constitutes an offence against society at large.
id_1416	1	Be it stated, that availing of money from a nationalized bank in the manner alleged by the investigating agency vividly exposits fiscal impurity and financial fraud. The modus operandi narrated in the charge sheet cannot be put in the compartment of an individual or personal wrong. It is a social wrong and has immense societal impact. It is an accepted principle of handling finance that whenever there is manipulation and cleverly conceived contrivance to avail such benefits it cannot be regarded as a case having overwhelmingly and predominantly civil character. The ultimate victim is the collective. It creates a hazard in the financial interest of society. The gravity of the offence creates a dent in the economic spine of the nation. The cleverness which has been skillfully contrived, if the allegations are true, has a serious consequence. A crime of this nature would definitely fall in the category of offences which travel far ahead of personal or private wrong. It has the potential to usher in economic crisis. Its implications have their own seriousness, for it creates a concavity in the solemnity expected in financial transactions. It is not such a case where one can pay the amount and obtain a no‑due certificate and enjoy the benefit of quashing of the criminal proceedings on the hypothesis that nothing more remains to be done. The collective interest, of which the High Court is the guardian, cannot be a silent or mute spectator to allow the proceedings to be withdrawn, or to yield to the ingenious dexterity of the accused persons to invoke the jurisdiction under Article 226 of the Constitution or under Section 482 of the Criminal Procedure Code and quash the proceeding. It is not legally permissible. The High Court is expected to be on guard to these kinds of adroit moves. The High Court should have dealt with the matter keeping in mind that in such litigations the accused, when perceiving a tiny gleam of success, readily invokes the inherent jurisdiction for quashing of the criminal proceeding. The court's principal duty, at that juncture, should be to scan the entire facts to find out the thrust of allegations and the crux of the settlement. The experience of the judge comes to his aid and should be used with care, caution, circumspection and courageous prudence. As we find in the case at hand the learned Single Judge has not taken pains to scrutinize the entire conspectus of facts in proper perspective and quashed the criminal proceeding. The said quashment neither helps to secure the ends of justice nor prevents the abuse of the process of the High Court nor can it be said that as there is a settlement no evidence will come on record and there will be remote chance of conviction. Such a finding would be difficult to record. Be that as it may, the fact remains that the social interest would be in peril and the prosecuting agency, in these circumstances, cannot be treated as an alien to the whole case. Ergo, we have no other option but to hold that the order of the High Court is wholly indefensible., In this case, the High Court while exercising its inherent power ignored all the facts viz. the impact of the offence, the use of the State machinery to keep the matter pending for many years coupled with the fraudulent conduct of the respondent. Considering the facts and circumstances of the case in the light of the decision in Vikram Anantrai Doshi's case, the order of the High Court cannot be sustained., It is also relevant to refer to the judgment of the Honourable Supreme Court in the case of Indo Asian Limited v. State of Uttarakhand reported in 2014 (3) Supreme Court Cases 191, wherein it is observed as under: The appellant submitted that during the period between 4 July 2008 to November 2008, the appellant entrusted in total copper rods weighing 39,689 kilograms for processing and out of that the accused returned only 33,440.10 kilograms of copper wire to the appellant company. Copper weighing 26.87 kilograms was used in processing, and as such, the copper rods weighing 6,222.04 kilograms remained with the accused Respondent No.2 which, according to the appellant, was misappropriated and converted to his own use and the said copper was never returned to the appellant. Few correspondences were exchanged between the parties, including a few meetings as well. According to the appellant, even though the accused had undertaken to return the copper rods, the same was not done. Consequently, the appellant preferred a complaint which was registered as Crime Case No. 24 of 2010 at Police Station Rampur, Haridwar under Section 406 of the Indian Penal Code. The investigating officer initially filed a report on 30 April 2010. Again there was further investigation under Section 173(8) of the Criminal Procedure Code and, after due investigation, a charge‑sheet was filed on 13 December 2010 against the accused under Section 306 of the Criminal Procedure Code. The respondent then preferred Writ Petition No. 224 of 2010 before the High Court for quashing the FIR and not to arrest him. While the writ petition was pending, the Additional Chief Judicial Magistrate took cognizance of the case vide his order dated 23 December 2010, and issued summons. Those proceedings were challenged before the High Court and, as already stated, the High Court quashed those proceedings, against which this appeal has been preferred. We have gone through the FIR as well as various invoices produced before us. On going through the allegations raised in the FIR as well as the documents, we are of the view that the High Court, at the threshold, should not have quashed the complaint and the summons issued by the criminal court. In the circumstances, we are inclined to allow this appeal and set aside the order of the High Court and leave it to the criminal court to proceed with the case in accordance with law. We make it clear that we have not expressed any opinion on the merits of the case and leave it entirely for the criminal court to decide the case on the basis of the evidence adduced by the parties. Ordered accordingly., It is also relevant to refer to the judgment in the case of Mosiruddin Munshi v. Mohd. Siraj and Another reported in (2014) 14 Supreme Court Cases 29, wherein it is observed as under: In the present case the complaint does make averments so as to infer fraudulent or dishonest inducement having been made by Respondent No.1 herein and accused No.2 pursuant to which the appellant parted with money. It is the case of the appellant that Respondent No.2 does not have title over the property since the settlement deed was not a registered one and Respondent No.1 herein and accused No.2 had entered into criminal conspiracy and they fraudulently induced the appellant to deliver a sum of Rs. 5,00,001 with no intention to complete the sale deal. The averments in the complaint would prima facie make out a case for investigation by the authority. In the decisions relied on by the learned counsel for Respondent No.1, cited supra, this Court on the facts therein held that the allegations in the complaint read as a whole prima facie did not disclose commission of offences alleged and quashed the criminal proceedings. Those decisions do not apply to the fact situation of the present case. The High Court has adopted a strictly hyper‑technical approach and such an endeavour may be justified during a trial, but certainly not during the stage of investigation. At any rate it is too premature a stage for the High Court to step in and stall the investigation by declaring that it is a civil transaction wherein no semblance of criminal offence is involved. The appellant is therefore right in contending that the First Information Report should not have been quashed in this case and the investigation should have been allowed to proceed. We, therefore, allow this appeal and set aside the impugned order., It is also relevant to refer to the judgment in the case of State of Tamil Nadu v. R. Vasanthi Stanley and Another reported in 2016 (1) Supreme Court Cases 376, wherein it is observed as under: Testing the present controversy on the anvil of the aforesaid principles, we are disposed to think that the High Court has been erroneously guided by the ambit and sweep of power under Section 482 of the Criminal Procedure Code for quashing the proceedings. It has absolutely fallaciously opined that the continuance of the proceeding will be the abuse of the process of the court. It has been categorically held in Janta Dal v. H.S. Chowdhary [(1992) 4 Supreme Court Cases 305] that the inherent power under Section 482 of the Criminal Procedure Code though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. In Inder Mohan Goswami (supra), it has been emphasised that inherent powers have to be exercised sparingly, carefully and with great caution., We will be failing in our duty unless we advert to the proponent propounded with regard to other aspects. They are really matters of concern and deserve to be addressed. The submission as put forth is that the first respondent is a lady and she was following the command of her husband and signed the documents without being aware of the transactions entered into by the husband and nature of the business. The allegation in the charge sheet is that she has signed the promissory notes. That apart, as further alleged, she is a co‑applicant in two cases and guarantor in other two cases. She was an Assistant Commissioner of Commercial Taxes and after taking voluntary retirement she has joined public life, and became a member of the Rajya Sabha. Emphasis is also laid that she is a lady and there is no warrant to continue the criminal proceeding when she has paid the dues of the banks, and if anything further is due that shall be made good. The assertions as regards the ignorance are a mere pretence and sans substance given the facts. Lack of awareness, knowledge or intent is neither to be considered nor accepted in economic offences. The submission assiduously presented on gender leaves us unimpressed. An offence under the criminal law is an offence and it does not depend upon the gender of an accused. State, Representative By Inspector of Police Central Crime Branch v. R. Vasanthi Stanley & Another. True it is, there are certain provisions in the Criminal Procedure Code relating to exercise of jurisdiction under Section 437, etc., but that altogether pertains to a different sphere. A person committing a murder or getting involved in a financial scam or forgery of documents cannot claim discharge or acquittal on the ground of her gender as that is neither constitutionally nor statutorily a valid argument. The offence is gender neutral in this case. We say no more on this score., As far as the load on the criminal justice dispensation system is concerned it has an inseparable nexus with speedy trial. A grave criminal offence or serious economic offence or, for that matter, an offence that has the potential to create a dent in the financial health of the institutions, is not to be quashed on the ground that there is delay in trial or the principle that when the matter has been settled it should be quashed to avoid the load on the system. That can never be an acceptable principle or parameter, for that would amount to destroying the stem cells of law and order in many a realm and further strengthen the marrow of unscrupulous litigations. Such a situation should never be conceived of., In view of the above observations and considering the facts of the present case, in my opinion, as a prima facie case is made out against the accused, no case is made out to exercise the inherent powers of this Court under Section 482 of the Criminal Procedure Code. Accordingly, I do not find any merit in the present petition and no case is made out to exercise power under Section 482 of the Criminal Procedure Code. Accordingly, the present petition is dismissed. Notice is discharged. Interim relief stands vacated., In view of the above order, Criminal Miscellaneous Application Nos. 1 and 2 of 2018 do not survive and the same are disposed of accordingly. Further order: Learned advocate Mr. Salil Thakore, for the applicants, prayed for extension of interim relief granted by this Court earlier, qua applicant No. 2. As the present petition is pending since 2018, this Court is of the opinion that investigation is required to be completed and subsequent proceedings are also required to be proceeded further. As granting of interim relief will delay further proceedings pursuant to the impugned First Information Report, the request for extension of interim relief is rejected.
id_1417	0	23831 OF 2020 AND 14718 OF 2021 The appellants before us are firms who are aggrieved by an order of a Registrar (J‑IV) of the Supreme Court of India passed on 31.10.2022 declining registration of a set of petitions labelled as curative petitions. This was a common order passed in six similar petitions, including the one instituted by the appellant in Miscellaneous Application No. 2045 of 2022 instituted by Brahmaputra Concrete Pipe Industries, founded on similar factual and legal grounds. These appeals have been filed under Rule 5 of Order XV of the Supreme Court Rules, 2013 (hereinafter the 2013 Rules). In this judgment, we shall refer to the pleadings and orders made in Miscellaneous Application No. 2045 of 2022 treating it as the lead matter. The rule reads: Order XV Rule 5. The Registrar may refuse to receive a petition on the ground that it discloses no reasonable cause or is frivolous or contains scandalous matter but the petitioner may, within fifteen days of the making of such order, appeal by way of motion from such refusal to the Supreme Court of India., The order of the Registrar, which is under appeal before us, reads: The above‑mentioned curative petitions filed by Messrs Nuli & Nuli, Advocates, against the judgment dated 18.12.2019 passed in the review petitions were heard and disposed of in open Court. In this regard the relevant Rule 2(1), Order XLVIII, Supreme Court Rules, 2013 reads as follows: The petitioner, in the curative petition, shall aver specifically that the grounds mentioned therein had been taken in the review petition and that it was dismissed by circulation. Since the aforesaid review petitions were disposed of in open Court and not by circulation, the aforementioned curative petitions are declined for registration and are lodged under Order XV Rule 5 of the Supreme Court Rules, 2013. Inform the advocate accordingly., The origin of the dispute ultimately leading to the passing of the aforesaid order relates to the maintainability of a suit instituted by the appellant under the Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act, 1993 (the 1993 Act). The suit of the appellant was decreed by the Civil Judge, Senior Division, Tinsukia, Assam (Trial Court) but was dismissed by the Assam High Court in appeal mainly on the ground of the suit not being maintainable. The High Court, inter‑alia, held that the suit under the 1993 Act would not lie in respect of transactions which had taken place prior to 23.09.1992, the date on which the Act became operational. The appeal against the High Court judgment was dismissed by a three‑Judge Bench of the Supreme Court of India on 23.01.2019. The plea for review of the said judgment also failed and the review petition was dismissed on 18.12.2019 after open Court hearing. In this judgment, we shall deal with the legality of the Registrar's order refusing to receive the curative petitions of the appellants., The 1993 Act was preceded by an ordinance permitting certain small‑scale industrial undertakings to claim interest on delayed payment. That ordinance was promulgated on 23.09.1992 and later transformed into the aforesaid statute. A question arose as to whether the right to sue for interest under the Act could relate back to delayed payments made under agreements entered into before the date of promulgation of the ordinance. A Full Bench of the Gauhati High Court opined that the right to claim interest under the statute would not extend to agreements or contracts entered prior to 23.09.1992., In this judgment, we shall discuss the factual position involved in the petition filed by the appellant in the lead matter. The case ultimately reached the Supreme Court of India and, in the judgment delivered on 23.01.2019, the three‑Judge Bench held that the material date for instituting the suit for interest would depend on whether delivery was made by the supplier after the statute came into operation. If that was the case, a suit for recovery of interest on delayed payment would be maintainable. In the present case, the three‑Judge Bench found no evidence of any delivery being made subsequent to the statute becoming operational. The appellant had relied on the dates of raising of bills subsequent to 23.09.1992. The three‑Judge Bench of the Supreme Court of India was not satisfied that the goods were supplied subsequent to that date, in respect of which interest was being claimed on account of delayed payment., As we have already indicated, the three‑Judge Bench of the Supreme Court of India dismissed the review petition in open Court after oral hearing, finding no error apparent on the face of the record of the judgment under review. Thereafter the curative petition was instituted, which is the subject of this judgment., Under the Constitution of India or any other statutory provision, there is no specific jurisdiction conferred on the Supreme Court of India to entertain curative petitions except the Rules of the Supreme Court of India made in 2013. The Supreme Court Rules, 2013 deal with the procedure for filing curative petitions and we shall refer to these Rules later in this judgment. Article 137 of the Constitution of India lays down the jurisdiction of the Supreme Court of India to review its own judgment or order. Article 145 of the Constitution of India empowers the Supreme Court of India to make rules for regulating the general practice and procedure of the Court. The two articles read: 137: Review of judgments or orders by the Supreme Court. Subject to the provisions of any law made by Parliament or any rules made under Article 145, the Supreme Court shall have the power to review any judgment pronounced or order made by it. 145: Rules of Court, etc. (1) Subject to the provisions of any law made by Parliament, the Supreme Court may, from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court including (a) rules as to the persons practicing before the Court; (b) rules as to the procedure for hearing appeals and other matters pertaining to appeals including the time within which appeals to the Court are to be entered; (c) rules as to the proceedings in the Court for the enforcement of any of the rights conferred by Part III; (cc) rules as to the proceedings in the Court under Article; (d) rules as to the entertainment of appeals under sub‑clause (c) of clause (1) of Article 134; (e) rules as to the conditions subject to which any judgment pronounced or order made by the Court may be reviewed and the procedure for such review including the time within which applications to the Court or such review are to be entered; (f) rules as to the costs of and incidental to any proceedings in the Court and as to the fees to be charged in respect of proceedings therein; (g) rules as to the granting of bail; (h) rules as to stay of proceedings; (i) rules providing for the summary determination of any appeal which appears to the Court to be frivolous or vexatious or brought for the purpose of delay; (j) rules as to the procedure for inquiries referred to in clause (1) of Article 317. (2) Subject to the provisions of clause (3), rules made under this article may fix the minimum number of Judges who are to sit for any purpose, and may provide for the powers of single Judges and Division Courts. (3) The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five, provided that where the Court hearing an appeal under any provision of this Chapter other than Article 132 consists of less than five Judges and, in the course of the hearing, the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution, the Court shall refer the question for opinion to a Court constituted as required by this clause and shall, on receipt of the opinion, dispose of the appeal in conformity with such opinion. (4) No judgment shall be delivered by the Supreme Court save in open Court, and no report shall be made under Article 143 save in accordance with an opinion also delivered in open Court. (5) No judgment and such opinion shall be delivered by the Supreme Court save with the concurrence of a majority of the Judges present at the hearing of the case, but nothing in this clause shall be deemed to prevent a Judge who does not concur from delivering a dissenting judgment or opinion., The expression ‘curative petition’ was used by a Constitution Bench of the Supreme Court of India comprising five Honourable Judges in the case of Rupa Ashok Hurra v. Ashok Hurra and Another [(2002) 4 SCC 388]. The Supreme Court, in that judgment, opined that to prevent abuse of the Court’s process and to cure a gross miscarriage of justice, the Supreme Court may reconsider its judgments in exercise of its inherent powers. This inherent power was traced to Articles 129 and 142 of the Constitution of India. The judgment specified the requirements to entertain a curative petition so that floodgates are not opened for filing a second review petition as a matter of course. It is common ground that, except when very strong reasons exist, the Court should not entertain an application seeking reconsideration of an order of the Supreme Court which has become final on dismissal of a review petition. It is neither advisable nor possible to enumerate all the grounds on which such a petition may be entertained. Nevertheless, the Court held that a petitioner is entitled to relief ex debito justitiae if he establishes (1) violation of the principles of natural justice in that he was not a party to the lis but the judgment adversely affected his interests, or, if he was a party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had notice; and (2) where a learned Judge failed to disclose his connection with the subject‑matter or the parties, giving scope for an apprehension of bias and the judgment adversely affects the petitioner. The petitioner, in the curative petition, shall aver specifically that the grounds mentioned therein had been taken in the review petition and that it was dismissed by circulation. The curative petition shall contain a certification by a Senior Advocate regarding the fulfilment of the above requirements. The Court further held that, since the matter relates to re‑examination of a final judgment of the Supreme Court, the curative petition has to be first circulated to a bench of the three senior‑most Judges and the Judges who passed the judgment complained of, if available. Only when a majority of the learned Judges on that bench conclude that the matter needs hearing should it be listed before the same bench, which may pass appropriate orders. The bench may, at any stage, ask a Senior Counsel to assist as amicus curiae. If the bench holds that the petition is without merit and vexatious, it may impose exemplary costs on the petitioner. Insofar as the present writ petitions are concerned, the Registry shall process them notwithstanding that they do not contain the averment that the grounds urged were specifically taken in the review petitions and the petitions were dismissed in circulation., As evident from the foregoing passages, one of the pre‑conditions for filing a curative petition is that the petitioner must specifically aver that the grounds mentioned in the petition had been taken in the review petition and that it was dismissed by circulation. This is contained in paragraph 52 of the Rupa Ashok Hurra report. The grounds on which a curative petition may be founded are specified in paragraph 51 of the same report. The provisions pertaining to filing curative petitions have been incorporated in Order XLVIII of the Supreme Court Rules, 2013. The relevant rules are reproduced below: 1. Curative petitions shall be governed by the judgment dated 10 April 2002 in Rupa Ashok Hurra v. Ashok Hurra and Others, Writ Petition (C) No. 509 of 1997. 2. (1) The petitioner, in the curative petition, shall aver specifically that the grounds mentioned therein had been taken in the review petition and that it was dismissed by circulation. (2) A curative petition shall be accompanied by a certificate of a Senior Advocate that the petition meets the requirements delineated in the above case. (3) A curative petition shall be accompanied by a certificate of the Advocate on Record to the effect that it is the first curative petition in the impugned matter. 3. The curative petition shall be filed within a reasonable time from the date of judgment or order passed in the review petition. 4. (1) The curative petition shall be first circulated to a bench of the three senior‑most Judges and the Judges who passed the judgment complained of, if available. (2) Unless otherwise ordered by the Supreme Court of India, a curative petition shall be disposed of by circulation without any oral arguments, but the petitioner may supplement the petition by additional written arguments. (3) If the bench before which a curative petition was circulated concludes by a majority that the matter needs hearing, it shall be listed before the same bench, as far as possible. (4) If the Supreme Court of India, at any stage, concludes that the petition is without merit and vexatious, it may impose exemplary costs on the petitioner., The main point urged on behalf of the appellant is that the Registrar has no power or jurisdiction to decline registration of a curative petition and that the question should be decided by a bench of the Supreme Court of India. There appears to be no decision directly on this point. We requested Mr. Raju Ramachandran, learned Senior Advocate, to assist as Amicus Curiae, a request he graciously accepted. Mr. Anand Sanjay M. Nuli appeared on behalf of the appellants and his main submissions have been recorded. Mr. Vijay Hansaria, learned Senior Counsel appearing for the respondent, drew our attention to Order XLVIII of the 2013 Rules, pointing out that, because the review petition was dismissed in open Court hearing after oral submissions, the case does not satisfy the mandate of the five‑Judge Bench laid down in Rupa Ashok Hurra. He also raised the point of delay in filing the curative petition: the review petition was dismissed on 18.12.2019 and the curative petition was filed on 31.10.2020, a lapse of ten months. He referred to Rule 3 of Order XLVIII of the 2013 Rules, which requires a curative petition to be filed within a reasonable time from the date of judgment or order passed in the review petition. The Rules do not prescribe a specific time period for filing a curative petition from the date of dismissal of the review petition, leaving the discretion to the Supreme Court of India to decide the question of delay., Mr. Hansaria also referred to the thirty‑day limitation period for filing a review petition in terms of Order XLVII, Rule 2 of the 2013 Rules. Our opinion is that the curative jurisdiction, being a special jurisdiction derived from the inherent power of the Supreme Court of India, is not subject to the limitation prescribed for filing a review petition. The curative jurisdiction does not flow from the power to review; it is derived from Articles 129 and 142 of the Constitution of India. Moreover, Rule 3 of Order XLVIII of the 2013 Rules specifically stipulates that a curative petition must be filed within a reasonable time from the date of judgment or order passed in a review petition. No timeframe has been formulated in the 2013 Rules for filing a curative petition., Mr. Hansaria's further argument is that the judgment in Rupa Ashok Hurra requires reconsideration. However, that decision was delivered by five Honourable Judges of the Supreme Court of India, and we cannot test its legality or comment on whether it requires reconsideration. Accordingly, we cannot accept his submission. He cited a decision of the Supreme Court of India in P.N. Eswara Iyer and Others v. Registrar [(1980) 4 SCC 680], which distinguished between an original or first hearing of a matter and a re‑look at the stage of review. That judgment, delivered in connection with the amendment of the Supreme Court Rules, 1966 dispensing with oral hearing of review petitions, does not aid the respondent, as it was delivered in a different context under a different set of Rules. In any case, oral hearing has not been altogether dispensed with in curative jurisdiction, and it remains at the discretion of the bench to decide whether a curative petition should be dismissed by circulation without oral arguments or should be heard after notice to the opposite party. This procedure is contained in Rule 4 of Order XLVIII of the 2013 Rules, reproduced earlier in this judgment., While in Rupa Ashok Hurra the five‑Judge Bench specified that a curative petition must contain an averment that the review petition was dismissed by circulation, the consequence of dismissal on oral hearing in open Court has not been specified in that judgment. Rules have been framed elevating the directions of the Supreme Court of India in Rupa Ashok Hurra to statutory level. While testing the appellant's submissions, we shall refer to these Rules as well., Mr. Ramachandran, learned Amicus Curiae, argued that the making of an averment that the review petition was dismissed by circulation should not by itself determine the maintainability of a curative petition. He submitted that, under Order LV Rule 2 of the 2013 Rules, the Supreme Court of India has been vested with power to excuse compliance with any rule, and if an application to that effect is made, the Registry should take instructions from the judge in chambers and communicate the same to the parties. The rule further provides that if, in the opinion of the Registrar, it is desirable that the application be dealt with in open Court, she may direct the applicant to serve the other parties with a notice of motion returnable before the Supreme Court of India. Mr. Ramachandran also cited an order dated 08.02.2016 in Rama Rao Poal v. Samaj Parivartana Samudaya (Curative Petition (Civil) D. No. 35404/2015), in which the Supreme Court of India initially directed that the question of maintainability ought to be decided by the concerned bench. In that order, a Co‑ordinate Bench of the Supreme Court of India observed: Two issues arise in the appeal. The first is whether a curative petition would be maintainable against an order passed in a review petition which has been heard in open Court. The second is whether the pre‑conditions laid down in Rupa Ashok Hurra v. Ashok Hurra & Anr., (2002) 4 SCC 389, are satisfied. The Registrar had decided both issues against the applicant, holding the curative petition not maintainable. After hearing the learned counsel for the applicant and perusing the relevant provisions of the Supreme Court Rules, 2013, we are of the view that the questions are to be decided by the bench. The Registry is therefore directed to circulate the curative petition in accordance with the relevant provisions of the Supreme Court Rules. The appeal against the Registrar's order is disposed of in the above terms., The proceeding also reached the Co‑ordinate Bench in appeal from an order of a Registrar. Subsequently, a bench of the Supreme Court of India comprising four Honourable Judges dismissed the curative petition on 29.03.2016., Moreover, in the judgment of the Supreme Court of India in Mohd. Arif v. Registrar [(2014) 9 SCC 737] it was observed that where a death sentence is awarded, a right of limited oral hearing shall be given to the convict at the stage of review petition. Subsequently, in Union of India & Ors. v. Union Carbide Corporation & Ors. (Curative Petition (Civil) Nos. 345‑347 of 2010), a five‑Judge Bench of the Supreme Court of India, by an order dated 14.03.2023, after hearing the parties in exercise of its curative jurisdiction, chose to dismiss the petition. In that proceeding the Court examined a curative petition brought by the Union of India seeking to re‑open the settlement arrived at in the case arising out of the Bhopal gas tragedy of 1984. Earlier review petitions questioning the settlement order were dismissed and the Union of India had not sought review thereof. Mr. Ramachandran submitted that the earlier review petitions were dismissed after hearing in open Court and, notwithstanding that, the Constitution Bench chose to hear the parties invoking the curative jurisdiction of the Supreme Court of India., In the decision of the Supreme Court of India in Union Carbide, the Constitution Bench reaffirmed the direction contained in Rupa Ashok Hurra limiting the scope of curative petitions, holding: We have great hesitation in allowing such a prayer and granting such sui generis relief through curative petitions. Although the Supreme Court in Rupa Ashok Hurra chose not to enumerate all the grounds on which a curative petition could be entertained, the Court was clear that its inherent power ought not to be exercised as a matter of course and that it should be circumspect in reconsidering an order of the Supreme Court that had become final on dismissal of the review petition. Nevertheless, looking at the nature of the matter before us, it would be advisable to also examine the curative petition(s), apart from the preliminary objection., It is apparent from the aforesaid judgments that the question of maintainability of a curative petition must ultimately be examined by a bench of the Supreme Court of India. The composition of such bench was laid down in Rupa Ashok Hurra and incorporated in Rule 4 of Order XLVIII of the 2013 Rules. However, the composition of the bench can arise only after the curative petition is entertained. The present issue is not whether the curative petition ought to be dismissed by circulation, but whether the Registry has the power to dismiss a curative petition solely because no averment has been made that the review petition was dismissed by circulation. We accept Mr. Ramachandran's submission that this matter ought to be decided by a bench of the Supreme Court of India and not by the Registry. This is a judicial exercise, as reflected in the order of 08.02.2016 in Rama Rao Poal. While Rupa Ashok Hurra prescribed certain conditions for a curative petition, there is no stipulation that, in the absence of such averment, the curative petition must be dismissed at the registration stage. The grounds on which the Registrar may refuse to receive a petition are enumerated in Rule 5 of Order XV of the 2013 Rules. The order under appeal referred to that rule, but the rule does not empower the Registrar to decline registration of a curative petition on the ground disclosed in the present case. Hearing of a review petition in open Court cannot be characterised as disclosing no reasonable cause under Rule 5 of Order XV. At best, it is a technical shortcoming. Considering the importance of the question, the Constitution Bench in Union Carbide chose to examine the curative petition despite the dismissal of the review petition in open Court, although the curative petition was ultimately dismissed., We now turn to the course open to the Registry after it finds a curative petition lacking the averment that the grounds mentioned therein had been taken in the review petition and that it was dismissed by circulation. Precedents where the Supreme Court of India invoked its curative jurisdiction after review petitions were dismissed in open Court have been referred to. The Registry cannot be vested with the power to decide whether a review petition, after being dismissed in open Court, merited re‑look through curative jurisdiction; that is a judicial exercise. In such a situation the Registry cannot keep the matter pending as defective, as is done in cases of delayed filing of a petition without an application for condonation of delay. An application for condonation of delay could cure the initial defect, and it would be for the Supreme Court of India to decide whether the delay should be condoned. In the present case, curing the defect would not be within the Registry's jurisdiction. An appeal under Order XV Rule 5 of the 2013 Rules would also not be the proper course, as that rule expressly defines the situations in which the Registry may refuse to entertain a petition. Failure to make the averment required by Rule 2(1) of Order XLVIII of the 2013 Rules is not a condition that empowers the Registry to refuse to receive a curative petition., In our opinion, the course to be followed by the Registry in a proceeding of this nature is contained in Order LV Rule 2 of the 2013 Rules. The rule states: An application to be excused from compliance with the requirements of any of the rules shall be addressed, in the first instance, to the Registrar, who shall take instructions of the Judge in Chambers thereon and communicate the same to the parties, but if, in the opinion of the Registrar, it is desirable that the application be dealt with in open Court, she may direct the applicant to serve the other party with a notice of motion returnable before the Supreme Court of India., We are of the view that a curative petition arising from an order dismissing a review petition upon hearing in open Court must contain a plea or prayer seeking excuse from compliance with the averment required by Order XLVIII Rule 2(1) of the 2013 Rules. The proper course for the Registry on receiving such a petition with a prayer to be excused from the requirement would be to obtain instructions from the judge in chambers and thereafter communicate those instructions to the parties. Rule 2 provides that the Registrar herself may direct the applicant to serve the other party with a notice of motion returnable before the Supreme Court of India, if she opines that the application should be dealt with in open Court. That part of the rule would not apply where the applicant seeking to invoke curative jurisdiction approaches the Supreme Court of India after the review petition is dismissed in open Court hearing. In such a situation, the applicant must file an application praying to be excused from compliance with Rule 2(1) of Order XLVIII of the 2013 Rules, and that application shall also contain a request for the matter to be placed before the chamber judge for proper instructions. In other cases where the review petition is dismissed by circulation, the curative petition has to be first circulated to a bench of three senior‑most Judges of the Supreme Court of India and the Judges who passed the judgment complained of, if available.
id_1417	1	Thereafter, the course prescribed in sub‑clauses (2), (3) and (4) of Rule 4 of Order XLVIII of the 2013 Rules shall be followed as may be applicable., So far the present appeal is concerned, this course was not followed when the order was passed declining registration of the curative petition. This order, in our opinion, is contrary to the provisions of the Rules and thus, we set aside the impugned order., We, however, do not consider it fit to remand the matter to the Registrar as the curative petitions were filed in the year 2020 and substantial time has lapsed since then. We have ourselves gone through the initial order passed in the Special Leave Petition as also the order of the Review Court. We have perused the curative petitions as well. We do not think any case has been made out by the appellant for invoking the curative jurisdiction to take re‑look into the appellant's case. Hence, we refrain from entertaining the curative petitions. We do not think any purpose would be served in sending the matter back to the Chamber Judge for instructions in the given circumstances., We record our appreciation for the assistance given to us by Mister Ramachandran, learned senior counsel as Amicus Curiae., The appeal shall stand disposed of in the above terms., This judgment will cover five other miscellaneous applications which are in effect appeals from the order of the Registrar and all these appeals shall stand disposed of in the same terms.
id_1418	0	Neutral Citation Number: 2022/DHC/004359 Date of decision: 17 October 2022. Through: Mr. Anoop Chaudhari and Ms. June Chaudhari, Senior Advocates, with Mr. Samarth Chowdhary, Advocate, versus Through: Mr. Vivekanand Mishra and Mr. Aayushmaan Vatsyayana, Advocates for Respondent No.1. Mr. Jayant Mehta, Senior Advocate, with Mr. Aman Raj Gandhi, Mr. Vardaan Bajaj and Mr. Abhishek Tiwari, Advocates for Respondent No.1. The present appeal has been filed challenging the judgment dated 09 July 2021 passed by the Learned Single Judge of the Delhi High Court in W.P.(C) No. 4733/2021 whereby the writ petition of the Appellant was dismissed on the ground that it was not maintainable as the Gem and Jewellery Export Promotion Council (GJEPC), that is Respondent No.2, did not fall within the ambit of State under Article 12 of the Constitution of India., The short question which had arisen before the Learned Single Judge when the writ petition had been listed for the first time on 16 April 2021 was whether the same was maintainable. It had been argued on behalf of Respondent No.2 that it was not a statutory body, but was a company incorporated under Section 25 of the Companies Act, 1956 and, therefore, fell outside the parameters essential for Respondent No.2 to be declared as an entity within the meaning of State under Article 12. The Appellant had, however, argued vehemently that as GJEPC functioned under the sponsorship of the Ministry of Commerce and Industry, it could be deemed to be an instrumentality of the State within Article 12 due to the extent of the regulation, control and supervision that the Ministry of Commerce and Industry exercised over it., Vide impugned judgment dated 09 July 2021, the Learned Single Judge held that the writ petition was not maintainable and stated the following: It must be held that GJEPC is not discharging any public or state functions and as such not an other Authority within the meaning of Article 12 of the Constitution of India and as such, the present petition under Article 226 of the Constitution of India is not maintainable. The plea of maintainability of the petition, advanced by Learned counsel for Respondent No.2, needs to be accepted and without going into the merits of the challenge to the termination of the petitioner, and the judgments relied upon by the petitioner on the merits of the case, the present petition is liable to be dismissed. It is ordered accordingly., Aggrieved by the finding of the Learned Single Judge in the impugned judgment dated 09 July 2021, the Appellant has approached the Delhi High Court by way of an appeal in an attempt to establish the maintainability of the writ petition. Mr. Anoop Chaudhuri, Learned Senior Counsel appearing for the Appellant, submits that the Learned Single Judge has erred gravely by holding that Respondent No.2 is not amenable to writ jurisdiction as it falls outside the purview of Article 12 of the Constitution. He states that Respondent No.2 exercises no autonomy, which is exemplified by the financial control exerted by the Ministry of Commerce and Industry over it., He relies on the 73rd Report of the Rajya Sabha presented to the House on 04 May 2020, wherein the delay in the annual reports and audited accounts of Respondent No.2 was discussed. The report iterates that the Gem and Jewellery Export Promotion Council was set up in 1966, operated under the supervision of the Ministry of Commerce, Government of India, and represented an industry that was India's largest foreign exchange earner. He further informs the Delhi High Court of the objectives of the Council and relies on Point 2, which states that, as per the recommendations of the Committee on Papers Laid on the Table, Rajya Sabha, all Government companies and organisations are required to lay their annual reports and audited accounts on the Table of the House within nine months from the date of closure of accounts. The annual accounts of the Gem and Jewellery Export Promotion Council, Mumbai close on 31 March each year; therefore, papers are required to be laid on the Table of the House by 31 December. According to Mr. Chaudhuri, the sole reason the annual reports and audited reports are required to be placed before the Rajya Sabha is because the Council is considered a Government company or organisation., Mr. Chaudhuri submits that the fact that GJEPC is a public authority is evident from the reply dated 09 February 2021 of the Department of Commerce to a Right to Information application filed by the Appellant, which demonstrates that the Ministry of Commerce and Industry exerts a substantial degree of control over the activities and finances of Respondent No.1. He submits that the response states that GJEPC had participated in the Kimberley Process Certification Scheme in the capacity of a designated importing and exporting authority within the meaning of Section IV(b) of the Kimberley Process Certification Scheme Core Document. The Learned Senior Counsel brings to the attention of the Delhi High Court the website of the Ministry of Commerce and Industry to show that GJEPC is listed under the category of Export Promotion Council and performs an important function of promoting exports of gems and jewellery products as well as appraisal of imports of commodities relating to this sector. Furthermore, the Office Memorandum dated 10 November 1997 issued by the Government of India states that Export Promotion Councils, FIEO, IIP, etc., may create new posts and recruit staff without prior approval of the Government, but only within ten percent of their overall approved budget and on the explicit understanding that no compensation or grant would be available from the Government in case they are unable to meet these expenses within their budget at any subsequent date. It also states that these organisations would not be permitted to recruit Group D employees against their position in any case., Referring to the Memorandum of Association of Respondent No.2, Mr. Chaudhuri argues that the objects of Respondent No.2 demonstrate that it performs a public function. He further relies upon Clause 9 of the Memorandum of Association and Article 48 of the Articles of Association to state that no alteration, modification or deletion can be made to either the Memorandum of Association or the Articles of Association of GJEPC unless the alteration has been previously submitted to and approved by the Central Government, and upon Clause 3(c)(vi) to state that any deposit or investment of monies made by GJEPC in any securities or bank must be done with the approval of the Union Government. He states that a perusal of the Memorandum of Association and Articles of Association reveals that the Committee of Administrators of GJEPC has a maximum of 27 members, and three members are nominated by the Central Government. Mr. Chaudhuri therefore submits that these clauses reveal the pervasiveness of State control over the actions of Respondent No.2, thereby rendering it an instrumentality of the State., The Learned Senior Counsel then relies upon Clause 1.4 of the Articles of Association to submit that the application of the General Clauses Act, 1897, to the interpretation of the articles indicates that the structure of Respondent No.2 is akin to that of a statutory authority and, therefore, it must be subject to writ jurisdiction. Furthermore, Clause 2.1 states that the articles shall be subject to the Export‑Import Policy notified by the Central Government from time to time. To demonstrate the amount of control exercised by the Central Government over GJEPC, Mr. Chaudhuri points to Clause 9.2 to state that if GJEPC fails to ensure timely elections as provided in Clause 9.1, then the Central Government, after giving it a reasonable opportunity to be heard, may order a fresh election and make such arrangements as may be necessary. With regard to the extent of administrative and financial control of the Central Government, reliance is placed on the proviso to Clause 39.3 to showcase that Respondent No.2 is not an autonomous body as its accounts and books are open for inspection by an officer duly authorised by the Central Government for ascertaining or verifying the income and expenditure of Respondent No.2 or for such other purposes as may, by agreement between Respondent No.2 and the Central Government, be specified., The Learned Senior Counsel also refers to Clause 44.1 to submit that the funds of Respondent No.2 which are not required for current expenditure may be placed in a fixed deposit with any scheduled bank or may be invested in any security, but this investment shall be subject to instructions that may be issued from time to time by the Government of India, Department of Public Enterprises. Thereafter, citing Clause 47, Mr. Chaudhuri delineates the wide‑ranging powers of the Central Government to give directions to Respondent No.2 in public interest, or interest of national security or national economy. He submits that the Central Government, when it deems necessary, also has the power to call for such reports, returns and other information with respect to the property and affairs of Respondent No.2, the conduct of its business and other matters connected with the performance of its functions, and that Respondent No.2 is bound to comply. Furthermore, any agreement between Respondent No.2 and any foreign collaborator requires prior approval of the Central Government. He lastly refers to Clause 51 to state that the Central Government possesses the general power to modify, which is indicative of the power exercised by the Central Government over Respondent No.2., Mr. Chaudhuri, Learned Senior Counsel, then states that the elections of Respondent No.2 for all posts are controlled by the Ministry of Commerce and Industry as exemplified by the notice dated 30 October 2017 issued by the Ministry of Commerce and Industry and signed by the Joint Director General of Foreign Trade, who was the Election Authority of GJEPC for the years 2017‑2019. Moreover, the results regarding the candidates elected as Panel Members, Regional Chairman and Vice Chairman of the Committee of Administration of GJEPC for the term 2020‑2022 are declared by the Election Authority, who is the Additional Director General of Foreign Trade, as demonstrated by the notice dated 09 June 2020 issued by the Ministry of Commerce and Industry. He states that the individual who is the Election Authority is also the person who has been nominated as a Central Public Information Officer under the Right to Information Act, 2005., The Learned Senior Counsel refers to Chapter 2 of the Handbook of Procedure issued by the Ministry of Commerce and Industry, which notifies the procedure to be followed by an exporter or importer or by the licensing/regional authority or by any other authority for the purpose of implementing the provisions of the Foreign Trade (Development & Regulation) Act and any rules or orders emanating therefrom, to state that Chapter 2.91‑2.99 depicts GJEPC as a registering body notified by the Director General of Foreign Trade. He argues that all these factors indicate that Respondent No.2 is not an autonomous body, and that what constitutes a State under Article 12 has been given a very wide interpretation, and institutions such as AIIMS, ONGC, BHEL, etc., which do not receive any funding from the Government are also considered amenable to writ jurisdiction., Mr. Chaudhuri refers to the counter affidavit filed by the Union of India in W.P.(C) 2162/2019 to submit that the Government itself has conceded that GJEPC is part of the list of Export Promotion Councils that are under the administrative supervision of the Union of India and that the function of Respondent No.2 involves a strong element of national and public interest. Relying upon Commissioner of Income Tax, Bombay City IV v. Gem and Jewellery Export Promotion Council, (1983) 34 CTR (Bom) 57, the Learned Senior Counsel argues that it has already been recorded that Respondent No.2 is a company established for the purposes of advancing an object of general public utility. Moreover, Mr. Chaudhuri cites Sunirmal Kumar Roy v. Union of India and Ors., 2009 (1) CHN 702, to state that the Calcutta High Court held that CAPEXIL, which is also an Export Council, was a State body and could not function in a manner contrary to the policy of the Government. Similar reliance has been placed on All India Garment Exporters Common Cause Guild and Ors. v. Union of India and Anr., 2011 SCC OnLine Del 265, to submit that a Single‑Judge Bench of this Court held that the Apparels Export Promotion Council discharged a public function and was therefore amenable to writ jurisdiction. Further reliance is placed on Anandi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Ors. v. V.R. Rudani and Ors., (1989) 2 SCC 691, to submit that even though the body in question is private in nature, a writ of mandamus would lie if the party has no other equally convenient remedy, and that mandamus cannot be denied merely on the ground that the duty to be enforced is not imposed by a statute., Per contra, Mr. Jayant Mehta, Learned Senior Counsel appearing for Respondent No.2, submits that GJEPC is not a statutory body, but a private, non‑profit company established under Section 25 of the Companies Act, 1956, by eight persons who are all jewellers by occupation; it is not a State or other authority under Article 12 of the Constitution. He states that, in this context, the Learned Single Judge has not erred in holding that the writ petition of the Appellant would not be maintainable as Respondent No.2 cannot be subjected to writ jurisdiction on account of the fact that it does not perform any public or sovereign function. He states that the primary goal of an Export Promotion Council, i.e., Respondent No.2 in this case, is to promote Indian gem and jewellery industry and its products. However, this function cannot be termed a governmental or public function., The Learned Senior Counsel appearing for Respondent No.2 refers to a table detailing the total revenue generated by Respondent No.2 and the grants received by it from Respondent No.1 in the past 22 years to submit that the same reveals that GJEPC is truly an autonomous body in every sense and does not rely on the government for its functioning. Mr. Mehta further submits that GJEPC is being run with the aid of contributions from its members and it is not a body whose parts are owned by the Government. He argues that the funds and grants received from Respondent No.1 do not cover the major expenses incurred by GJEPC and are not substantial when compared with the total revenue generated by Respondent No.2. Mr. Mehta refers to Clauses 39, 40, 41 and 42 of the Articles of Association to substantiate how the Central Government does not have control over the finances of GJEPC, and that it is incumbent upon the Committee of Administrators to keep proper books of accounts, and by rules determine whether and to what extent and at what times and places and under what conditions the accounts and books of GJEPC shall be open for inspection. He submits that the financial aspects of GJEPC are controlled by GJEPC itself and that Respondent No.1 has no bearing on the same., With regard to the control exercised by Respondent No.1 over the functioning of Respondent No.2, Mr. Mehta submits that GJEPC is managed by a Committee of Administrators which is controlled by members who are neither appointed nor nominated by Respondent No.1. Further, Respondent No.1 does not have a say in the appointment of the Chairman of the Committee of Administrators, and the Articles of Association indicate that there are 24 elected members and only three members are nominated by the Central Government. These three members have no voting rights, merely play an advisory role and do not partake in the decision‑making process of the Committee., Mr. Mehta submits that the reply dated 09 February 2021 of the Department of Commerce to the Right to Information application is of no consequence and does not indicate whether Respondent No.2 is an instrumentality of the State. He states that the reply only notes that the Appellant can go up in appeal under Section 19 of the Right to Information Act, however, this does not render Respondent No.2 a State. He states that the fact that the Appellant has applied to the Government seeking information about a private entity would not make GJEPC a public entity. Mr. Mehta further argues that the application of the General Clauses Act, 1897, would not make GJEPC a State. Furthermore, the Learned Senior Counsel argues that as per the handbook issued by the Ministry of Commerce and Industry, Respondent No.2 is an Export Promotion Council and that just because it has the power to certify, it would not make it an authority., Mr. Mehta submits that the Appellant’s reliance on the Office Memorandum dated 10 November 1997 is mala fide in nature as the entire document or its context are not available. He states that the factum of not being allowed to employ Class D employees cannot be culled out from one out‑of‑context page that has been placed on record from the year 1997. He states that there is no restriction on the employment of an individual without the consent of the Central Government, and that Clause 33.4 of the Articles of Association stipulates the rules that are devised by GJEPC with respect to employment matters. On the aspect of elections, the Learned Senior Counsel brings to the notice of this Court Clause 9 and 10 of the Rules for Election of the Committee of Administrators which enumerate election to the Committee of Administrators and the mode of election. He submits that these election rules have been prescribed by Respondent No.2 itself and that it is part of the governing structure. He supplements this with Clause 9 of the Articles of Association to state that GJEPC is empowered to devise its own rules and regulations., Mr. Mehta, Learned Senior Counsel appearing for Respondent No.2, relies upon Raj Rajeshwar Dadhich v. The Gem & Jewellery Export Promotion Council and Anr., 1992 SCC OnLine Raj 202, to submit that the Rajasthan High Court has already rendered a finding on the status of Respondent No.2 and held that the Government has a very limited role to play in the functioning of GJEPC, and that GJEPC cannot be held to be an agency or instrumentality of the State. He further submits that, over time, the Articles of Association have been amended and that the role of the Central Government in the functioning of GJEPC has decreased. Mr. Mehta submits that the best argument that can be advanced by the Appellant is that the Government has the right to see how the money generated by GJEPC is being spent and the right to ensure that the Export Policy is being followed. In conclusion, Mr. Mehta argues that Article 12 should not be stretched to bring in every autonomous body with a nexus to government functions within the ambit of State and that one function assigned to GJEPC, which is not primary and forms a small fraction of its activities, should not matter. He submits the impugned judgment is not erroneous as the writ petition only reveals a private dispute having no public character, and thus, the instant appeal should be dismissed., Heard Mr. Anoop Chaudhuri, Learned Senior Counsel appearing for the Appellant, Mr. Jayant Mehta, Learned Senior Counsel appearing for Respondent No.2, and perused the material on record., The short question which arises for consideration before the Delhi High Court at this juncture is whether Respondent No.2, i.e., Gems and Jewellery Export Promotion Council, will fall within the ambit of State and other authorities under Article 12 of the Constitution., State as defined under Article 12 is meant to include, inter alia, the Government of India, the Government of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. The Supreme Court, over the years, has examined what constitutes a State or other authorities as contemplated in Article 12. The rationale for this analysis lies in the fact that any authority falling within the ambit of Article 12 is subject to the same constitutional limitations as the Government and is bound by the basic obligation to obey the constitutional mandate of the fundamental rights enshrined in the Constitution. By virtue of being accountable to the judiciary and the citizens, Article 12 prevents such authorities from obfuscating its responsibility to adhere to our fundamental rights and hinders them from taking an individual for a ride without any consequences., While considering this question it is necessary to bear in mind that an authority falling within the expression other authorities is, by reason of its inclusion within the definition of State in Article 12, subject to the same constitutional limitations as the Government and is equally bound by the basic obligation to obey the constitutional mandate of the fundamental rights enshrined in Part III of the Constitution. We must therefore give such an interpretation to the expression other authorities as will not stultify the operation and reach of the fundamental rights by enabling the Government to fulfill its obligation in relation to the fundamental rights by setting up an authority to act as its instrumentality or agency for carrying out its functions. Where constitutional fundamentals vital to the maintenance of human rights are at stake, functional realism and not facial cosmetics must be the diagnostic tool, for constitutional law must seek the substance and not the form. Now it is obvious that the Government may act through the instrumentality or agency of natural persons or it may employ the instrumentality or agency of juridical persons to carry out its functions. In the early days when the Government had limited functions, it could operate effectively through natural persons constituting its civil service and they were found adequate to discharge Governmental functions which were of traditional vintage. But as the tasks of the Government multiplied with the advent of the welfare State, it began to be increasingly felt that the framework of civil service was not sufficient to handle the new tasks which were often specialised and highly technical in character and which called for flexibility of approach and quick decision making. The inadequacy of the civil service to deal with these new problems came to be realised and it became necessary to forge a new instrumentality or administrative device for handling these new problems. It was in these circumstances and with a view to supplying this administrative need that the corporation came into being as the third arm of the Government and over the years it has been increasingly utilised by the Government for setting up and running public enterprises and carrying out other public functions. Today with increasing assumption by the Government of commercial ventures and economic projects, the corporation has become an effective legal contrivance in the hands of the Government for carrying out its activities, for it is found that this legal facility of corporate instrument provides considerable flexibility and elasticity and facilitates proper and efficient management with professional skills and on business principles and it is blissfully free from departmental rigidity, slow motion procedure and hierarchy of officers. The Government in many of its commercial ventures and public enterprises is resorting to more and more frequently to this resourceful legal contrivance of a corporation because it has many practical advantages and at the same time does not involve the slightest diminution in its ownership and control of the undertaking. In such cases the true owner is the State, the real operator is the State and the effective controllerate is the State and accountability for its actions to the community and to Parliament is of the State. It is undoubtedly true that the corporation is a distinct juristic entity with a corporate structure of its own and it carries on its functions on business principles with a certain amount of autonomy which is necessary as well as useful from the point of view of effective business management, but behind the formal ownership which is cast in the corporate mould, the reality is very much the deeply pervasive presence of the Government. It is really the Government which acts through the instrumentality or agency of the corporation and the juristic veil of corporate personality worn for the purpose of convenience of management and administration cannot be allowed to obliterate the true nature of the reality behind which is the Government. Now it is obvious that if a corporation is an instrumentality or agency of the Government, it must be subject to the same limitations in the field of constitutional law as the Government itself, though in the eye of the law it would be a distinct and independent legal entity. If the Government acting through its officers is subject to certain constitutional limitations, it must follow a fortiori that the Government acting through the instrumentality or agency of a corporation should equally be subject to the same limitations. If such a corporation were to be free from the basic obligation to obey the fundamental rights, it would lead to considerable erosion of the efficiency of the fundamental rights, for in that event the Government would be enabled to override the fundamental rights by adopting the stratagem of carrying out its functions through the instrumentality or agency of a corporation, while retaining control over it. The fundamental rights would then be reduced to little more than an idle dream or a promise of unreality. It must be remembered that the Fundamental rights are constitutional guarantees given to the people of India and are not merely paper hopes or fleeting promises and so long as they find a place in the Constitution, they should not be allowed to be emasculated in their application by a narrow and constricted judicial interpretation. The courts should be anxious to enlarge the scope and width of the fundamental rights by bringing within their sweep every authority which is an instrumentality or agency of the Government or through the corporate personality of which the Government is acting, so as to subject the Government in all its myriad activities, whether through natural persons or through corporate entities, to the basic obligation of the fundamental rights. The constitutional philosophy of a democratic socialist republic requires the Government to undertake a multitude of socio‑economic operations and the Government, having regard to the practical advantages of functioning through the legal device of a corporation, embarks on myriad commercial and economic activities by resorting to the instrumentality or agency of a corporation, but this contrivance of carrying on such activities through a corporation cannot exonerate the Government from implicit obedience to the Fundamental rights. To use the corporate methodology is not to liberate the Government from its basic obligation to respect the Fundamental rights and not to override them. The mantle of a corporation may be adopted in order to free the Government from the inevitable constraints of red tapism and slow motion but by doing so, the Government cannot be allowed to play truant with the basic human rights. Otherwise it would be the easiest thing for the Government to assign to a plurality of corporations almost every State business such as post and telegraph, TV and radio, railway and telephones in short every economic activity and thereby cheat the people of India out of the fundamental rights guaranteed to them. That would be a mockery of the Constitution and nothing short of treachery and breach of faith with the people of India, because, though apparently the corporation will be carrying out these functions, it will in truth and reality be the Government which will be controlling the corporation and carrying out these functions through the instrumentality or agency of the corporation. We cannot by a process of judicial construction allow the Fundamental rights to be rendered futile and meaningless and thereby wipe out Chapter III from the Constitution. That would be contrary to the constitutional faith of the post‑Maneka Gandhi era.
id_1418	1	It is the fundamental rights which along with the directive principles constitute the life force of the Constitution and they must be quickened into effective action by meaningful and purposive interpretation. If a corporation is found to be a mere agency or surrogate of the Government, in fact owned by the Government, in truth controlled by the Government and in effect an incarnation of the Government, the Supreme Court of India must not allow the enforcement of fundamental rights to be frustrated by taking the view that it is not the Government and therefore not subject to the constitutional limitations. We are clearly of the view that where a corporation is an instrumentality or agency of the Government, it must be held to be an authority within the meaning of Article 12 and therefore subject to the same basic obligation to obey the fundamental rights as the Government., Relying upon Ramana Dayaram Shetty v. International Airport Authority of India and Others, (1979) 3 SCC 489, the Supreme Court of India in Ajay Hasia and Others proceeded to document the relevant tests to determine when a corporation or an authority could be said to be an instrumentality or agency of the State. The paragraphs of the said judgment delineating the same are as follows:, The tests for determining when a corporation can be said to be an instrumentality or agency of the Government may be culled out from the International Airport Authority case [(1979) 3 SCC 489]. These tests are not conclusive or clinching, but they are merely indicative indicia which have to be used with care and caution. While stressing the necessity of a wide meaning to be placed on the expression 'other authorities', it must be realised that it should not be stretched so far as to bring in every autonomous body which has some nexus with the Government. A wide enlargement of the meaning must be tempered by a wise limitation. The relevant tests gathered from the decision are as follows: one, if the entire share capital of the corporation is held by the Government, it indicates that the corporation is an instrumentality or agency of the Government; two, where the financial assistance of the State meets almost the entire expenditure of the corporation, it indicates governmental character; three, whether the corporation enjoys monopoly status which is State‑conferred or State‑protected; four, existence of deep and pervasive State control; five, if the functions of the corporation are of public importance and closely related to governmental functions; six, if a department of the Government is transferred to a corporation, it is a strong factor supporting the inference that the corporation is an instrumentality or agency of the Government., It is immaterial for this purpose whether the corporation is created by a statute or under a statute. The test is whether it is an instrumentality or agency of the Government, not how it is created. The corporation may be a statutory corporation created by a statute, a government company, a company formed under the Companies Act, 1956, or a society registered under the Societies Registration Act, 1860, or any other similar statute. Whatever its origin, it would be an authority within the meaning of Article 12 if it is an instrumentality or agency of the Government, and that must be decided on a proper assessment of the facts in light of the relevant factors. The concept is not limited to a corporation created by a statute but is equally applicable to a company or society, and in a given case it must be decided, on consideration of the relevant factors, whether the company or society is an instrumentality or agency of the Government so as to come within the meaning of the expression 'authority' in Article 12., As can be discerned from the above, the Supreme Court added the caveat that encompassing an authority within the ambit of a State under Article 12 must be done with abundant caution and should not be stretched to bring in every autonomous body which has some nexus with the Government. It is well settled that there are only general principles and not exhaustive tests to determine whether a body is an instrumentality or agency of the Government. There is no clear‑cut formula; the powers, functions, finances and control of the Government are some of the indicating factors to answer the question whether a body is a State or not., Each case must be handled with care and caution. Where the financial assistance from the State meets almost the entire expenditure of the institution, or the share capital of the corporation is completely held by the Government, one could agree that the entity is bestowed with governmental character. It may be a relevant factor if the institution or corporation enjoys monopoly status which is State‑conferred or State‑protected. Existence of deep and pervasive State control may afford an indication. If the functions of the institution are of public importance and related to governmental functions, that is also a relevant factor. These are merely indicative indicia and are by no means conclusive or clinching., It is further well settled that Article 12 should not be stretched to bring in every autonomous body which has some nexus with the Government. A wide enlargement of the meaning must be tempered by a wise limitation. In the modern concept of a welfare State, independent institutions, corporations and agencies are generally subject to State control, but State control does not automatically render such bodies as a State under Article 12. The financial contribution by the State is also not conclusive. The combination of State aid coupled with an unusual degree of control over the management and policies of the body, and the rendering of an important public service being the obligatory functions of the State may largely point out that the body is a State. If the Government operates behind a corporate veil, carrying out governmental activity and functions of vital public importance, there may be little difficulty in identifying the body as a State within the meaning of Article 12 of the Constitution., A seven‑Judge Bench of the Supreme Court in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Others, (2002) 5 SCC 111, while deliberating whether the Council of Scientific and Industrial Research (CSIR) was a State within the meaning of Article 12, held that the question would be whether the authority is financially, functionally and administratively dominated by or under the control of the Government. However, if the control exercised is not pervasive and is merely regulatory, whether under statute or otherwise, it would not render the authority a State., While deciding whether the Board of Control for Cricket in India (BCCI) would amount to an instrumentality of the State, a five‑Judge Bench of the Supreme Court in Zee Telefilms Ltd. and Others v. Union of India and Others, (2005) 4 SCC 649, summarised the principles enumerated in Pradeep Kumar Biswas. The Court noted that it does not matter what guise the State adopts, whether a corporation established by statute, incorporated under the Companies Act, or formed under the Societies Registration Act, 1860; neither the form nor ostensible autonomy would take away its character as a State and its constitutional accountability under Part III if it is acting as an instrumentality or agency of the Government., The Court explained and distinguished Sabhajit Tewary (1975) 1 SCC 485 in Ramana Dayaram Shetty (1979) 3 SCC 489, stating that the decision did not lay down any principle or test for determining when a corporation can be regarded as an authority within the meaning of Article 12. The test, if any, is whether the corporation is really an agency of the Government. The Court held that the Council was not an agency of the Government and therefore not an authority., The tests propounded by Mathew J. in Sukhdev Singh (1975) 1 SCC 421 were elaborated in Ramana (1979) 3 SCC 489 and reformulated by a Constitution Bench in Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722. These tests, although originally obiter dicta, formed the ratio decidendi in Ajay Hasia, where the issue was whether a society established under the Jammu and Kashmir Registration of Societies Act, 1898, could be treated as a State within Article 12., The Court recognised that a society cannot be equated with the Government of India or any State nor can it be said to be a local authority; therefore it must come within the expression 'other authorities' if it is to fall within the definition of State. The courts should be anxious to enlarge the scope of Fundamental Rights by bringing within their sweep every authority which is an instrumentality or agency of the Government, so as to subject the Government in all its activities, whether through natural persons or corporate entities, to the basic obligation of the Fundamental Rights. The genesis of the corporation was held to be immaterial, and the concept of instrumentality or agency of the Government is not limited to a corporation created by a statute but is equally applicable to a company or society., The conclusion was reached that applying the tests to the facts showed that the society in Ajay Hasia was an authority falling within the definition of State in Article 12., On the same day that the decision in Ajay Hasia was pronounced, the decision of Som Prakash Rekhi v. Union of India was delivered, following the reasoning in Ramana. Bharat Petroleum Corporation was held to be a State within the enlarged meaning of Article 12. Sabhajit Tewary was criticised and distinguished as being limited to the facts of that case. The Court observed that a body may be a State under Part III but not under Part XIV, and that the composition of the governing body alone may not be decisive., A perusal of the aforementioned judgments brings to the fore that the liberal interpretation given to State and other authorities under Article 12 has been circumscribed over the years to include only those authorities that can explicitly be deemed to be under the control of the State and perform a public duty or State function. The control must be pervasive in nature to the extent that the authority has limited autonomy. These are the broad guidelines to be borne in mind when determining whether certain authorities can be termed a State. In this context, it becomes pertinent to analyse the provisions of the Memorandum of Association, Articles of Association and other documents to discern whether the Gem and Jewellery Export Promotion Council (GJEPC) can be brought within the net of other authorities for the purpose of Article 12., GJEPC is a company incorporated under Section 25 of the Companies Act, 1956 (formerly Section 8 of the Companies Act, 2013). It is not a statutory body and was constituted in 1966 by eight persons, all jewellers by occupation. Although membership has increased to almost 7,000 members, none of these members can be stated to be representatives of the Ministry of Commerce and Industry. The Council of Administration, which controls and manages GJEPC, consists of 27 members, of which 24 are elected and three are nominated by the Central Government. Relevant clauses of the Memorandum of Association and Articles of Association are as follows: No alteration shall be made to this Memorandum of Association or to the Articles of Association of the Company unless the alteration has been previously submitted to and approved by the Central Government. To deposit and invest the monies of the Company in any securities or bank approved in this behalf by the Union Government. The General Clauses Act, 1897, applies for the interpretation of these articles, as it applies for the interpretation of an Act of Parliament. The provisions of these articles shall be subject to the Export‑Import Policy as notified by the Central Government from time to time., The Council shall ensure that elections to various posts are held in time. Elected members shall automatically retire on completion of their tenure. If both the Chairman and Vice‑Chairman posts become vacant simultaneously, an interim Chairman may be elected by the Committee from the elected members for up to one month or until the next General Meeting, whichever is earlier; the appointment must be ratified by the members at the General Meeting and may be extended up to three months, after which a Chairman or Vice‑Chairman shall be appointed through election as per the election rules. If the Council fails to ensure timely elections, the Central Government may, after giving a reasonable opportunity of being heard, order a fresh election and make necessary arrangements., A nominated or co‑opted member shall have no right to vote. The Committee of Administration shall have the following members: elected members with a minimum of ten and a maximum of twenty‑four (including the Regional Chairman, Chairman, Vice‑Chairman and other members elected from the panels constituted under Article 23); nominated members, not exceeding three; and members nominated by the Committee to fill vacancies arising due to non‑filing or withdrawal of nomination, subject to the maximum number stipulated under Article 27.3(1)(a). The number of members of the Committee shall be laid down by Election Rules made by the Council., The term of office of members of the Committee who are nominated by the Central Government shall be co‑terminus with the term of the Committee, provided that if a member is nominated during the term, his term shall be as specified by the Central Government. The Central Government may at any time require such a nominee to relinquish his office and may appoint another person in his place. The term of the member nominated by the Committee to fill a vacancy shall be for two years till the next election of the Committee., The Committee shall, from time to time, determine when and to what extent the accounts and books of the Council shall be open for inspection by members who are not members of the Committee, subject to authorization by the Committee or a resolution of the Council. The funds of the Council not required for current expenditure may be placed in fixed deposit with any scheduled bank or invested in any security in which trust property may be lawfully invested under section 20 of the Indian Trusts Act, 1882, subject to instructions issued from time to time by the Government of India, Department of Public Enterprises. The Central Government shall have the power to give directions to the Council as to the performance of its functions in the interest of national security, the national economy, or otherwise in the public interest, and shall have the power to call for reports, returns and other information with respect to the property and affairs of the Council. The Council shall be bound to comply with all directions issued by the Central Government and with all provisions contained in the Export‑Import Policy of the Central Government., All agreements between the Council and any foreign collaborator shall require prior approval of the Central Government. No addition, modification or deletion of any of these articles shall be made without the prior approval of the Central Government. Where there is a repugnancy between the provisions of these articles and the procedures of the Companies Act, 2013, the procedures of the Act shall to the extent of the repugnancy overrule the provisions of these articles. The Central Government may at any time direct, by an order in writing, that the provisions of these articles shall be modified as it may deem necessary in the public interest., The purpose of GJEPC is to support, protect, maintain, increase and promote the export of gems and jewellery, including pearls, coloured gemstones, diamonds, synthetic stones, costume jewellery, gold and other precious metal jewellery and articles thereof. GJEPC acts as a nodal agency/interface between exporters and the Government. The Council, being a collective body of exporters, places the interests and problems of exporters before the Government so that the Government can take decisions to promote export. The Council does not carry out policy decisions of the Government nor is it involved in the decision‑making process regarding exports. The Council primarily consists of exporters with only three out of the twenty‑seven members being Government nominees. Therefore it cannot be said that the Council does anything remotely connected with activities conducted by the instrumentalities of the State. While it is not easy to define a public function or public duty, such functions are similar to or closely related to those performed by the State in its sovereign capacity (see G. Bassi Reddy v. International Crops Research Institute, (2003) 4 SCC 225 and Ramkrishna Mission and Others v. Kago Kunya and Others, (2019) 16 SCC 303). This Court is of the view that the function of GJEPC does not pass the public function test and that it cannot be said to be performing any duty similar to that performed by the State in its sovereign capacity.
id_1418	2	The submission of the Appellant that the Central Government exercises pervasive financial control over the Gem and Jewellery Export Promotion Council to the extent that it provides funds to the Gem and Jewellery Export Promotion Council and it also oversees the investment decisions of the Gem and Jewellery Export Promotion Council is not sustainable. The chart that has been presented by Respondent No.2 indicates that the funds provided by the Central Government are solely for the purpose of execution of specific schemes and projects, and it is definitely the Central Government's prerogative to ensure that the said funds are not misused; this justifies the power of the Central Government to audit the accounts. However, the earnings of the Gem and Jewellery Export Promotion Council, which stems from subscriptions of its members, do not require prior consent or sanction from the Ministry of Commerce and Industry, as demonstrated by the EXIM Policy 1997-2002. The figures that have been shown to the Delhi High Court reveal that with regard to the revenue generated by the Gem and Jewellery Export Promotion Council, at no point of time did the grant (revenue grants and capital grants) given by the Ministry of Commerce and Industry ever exceed 27%., The fact that the Gem and Jewellery Export Promotion Council is autonomous in nature has been stipulated by the Ministry of Commerce and Industry on its website as well: Gem and Jewellery Export Promotion Council and IDI are under the administrative control of the government and enjoy autonomy in administrative matters for creation of posts, service matters, etc. However, the function of Export Promotion Councils are as governed by paragraph 2.55 of the Foreign Trade Policy 2015-20. Further, it is the Council of Administration which manages and governs the functioning of the Gem and Jewellery Export Promotion Council, and not the Central Government. Out of 27 members of the Council of Administration, only three members are nominated by the Central Government and, as per Clause 11.3 of the Articles of Association, they possess no voting rights and therefore only play an advisory role in the administration of the Gem and Jewellery Export Promotion Council., Moreover, with respect to the aspect of conducting elections, the learned Senior Counsel for the Appellant has submitted that as per Clause 9.2 of the Memorandum of Association, if the Gem and Jewellery Export Promotion Council fails to hold elections in a timely manner, then the Central Government may intervene. The Delhi High Court states that Clause 9.2 does not reveal whether or not the Central Government has control over the functioning of the Gem and Jewellery Export Promotion Council, and therefore, the submission of the Appellant does not hold water. In fact, it is the Council of Administration which, under various Clauses of the Articles of Association, lays down the conduct of elections, the duty of the Gem and Jewellery Export Promotion Council in holding the same, and the mode of conducting elections. Furthermore, as per Clause 39 of the Articles of Association, it is the Council of Administration which determines how the books and accounts of the Gem and Jewellery Export Promotion Council must be kept and when they should be inspected. Merely because the Central Government may also inspect the books and accounts of the Gem and Jewellery Export Promotion Council does not establish that it controls the financial aspects of the Gem and Jewellery Export Promotion Council., While it is evident that the Central Government does have wide powers to issue directions to the Gem and Jewellery Export Promotion Council under Clause 47 of the Articles of Association, however, these directions may only be given if they are a) in the interest of national security, or b) in the interests of national economy, or c) otherwise in the public interest, and they may also have the power to call for such reports, returns and other information with respect to the property, affairs, etc. of the Gem and Jewellery Export Promotion Council. Thus, what can be inferred from these provisions is that the control of the Central Government over the Gem and Jewellery Export Promotion Council is only to be exercised in certain situations and cannot be said to be of such nature that it can be deemed pervasive., The contention of the Appellant that the reply to the Right to Information application dated 09.02.2021 demonstrates that Respondent No.2 is an instrumentality of the State cannot be accepted as it merely discloses that Respondent No.2 participated in the KPCS in capacity of a designated Importing and Exporting Authority within the meaning of Section IV (b) of the KPCS Core Document, and that the Public Information Officer was not required as per the Right to Information Act to derive any conclusion from any information. Nowhere does it indicate that Respondent No.2 is an instrumentality of the State. On the contrary, a screenshot from the website of the Ministry of Commerce and Industry which refers to the Gem and Jewellery Export Promotion Council categorically states that the Gem and Jewellery Export Promotion Council is not covered under the provisions of the Right to Information Act. Additionally, the fact that the General Clauses Act, 1897, applies for the interpretation of the Articles of Association is of no relevance and does not indicate anything., Consequently, a deep dive into the Articles of Association and Memorandum of Association of the Gem and Jewellery Export Promotion Council only brings forth the understanding that the Gem and Jewellery Export Promotion Council is a nodal agency, meant to mediate between exporters of gems and jewellery, and the Central Government. The function performed by the Gem and Jewellery Export Promotion Council cannot be termed as public duty and any administrative or financial hold that the Central Government is deemed to have over the Gem and Jewellery Export Promotion Council is far from pervasive. The Gem and Jewellery Export Promotion Council retains its autonomous character and it is the Council of Administration which not only looks after the affairs of the Gem and Jewellery Export Promotion Council, but is also empowered to make rules and regulations with regard to conditions of service, appointment, elections, etc. The Gem and Jewellery Export Promotion Council does not satisfy any of the requirements or tests laid down by various judgments of the Supreme Court for establishing whether or not an authority can be deemed to be a State under Article 12 of the Constitution of India. The reliance of the Appellant on All India Garment Exporters Common Cause Guild and Others v. Union of India and Another (supra) is misplaced as the learned Single Judge in the matter therein had observed that the Apparel Export Promotion Council was a statutory body that received support from the Central Government financially or otherwise, which is not the case in the instant matter., It is pertinent to note that the reliance of the Appellant on Anandi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others v. V.R. Rudani and Others (supra) that even if the body in question is private in nature, a writ of mandamus would lie if the petitioner has no alternative efficacious remedy, also does not come to the aid of the petitioner for the simple reason that the authority therein was an educational institution performing a public duty. The Supreme Court had, thus, held that the service conditions of the academic staff would not be of a purely private character, and mandamus could not be refused. This case is distinguishable from the instant case as the dispute herein is solely of a private nature and the authority in question is wholly private and autonomous, without the backing of a statute or performing any public duties., In view of the above observations, the Delhi High Court is of the opinion that the learned Single Judge vide the impugned judgment dated 09.07.2021 in W.P.(C) No. 4733/2021, wherein it held that the writ petition would not be maintainable as the Gem and Jewellery Export Promotion Council, i.e., Respondent No.2 does not fall within the ambit of State and other authorities under Article 12 of the Constitution of India, is legally firm and does not require any interference on the part of this Court., Accordingly, the instant appeal is dismissed, along with the pending applications, if any.

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