Tag Archives: article 21

Constitutional Problems with the Exclusion of Jurisdiction in the Coal Block Cases

(In this guest post, Abhinav Sekhri takes on from his previous analysis of the Girish Kumar Suneja Case, and demonstrates the various constitutional issues that arise out of the manner in which the Supreme Court has excluded the jurisdiction of the High Courts in certain criminal cases. This essay has been cross-posted from The Proof of Guilt blog).

The Supreme Court did three important things in Order dated 25.07.2014 in Manohar Lal Sharma v. Principal Secretary & Ors. [W.P. (Crl.) 120/2012]:
  • Directed the competent authorities to issue requisite notifications to appoint Mr. Bharat Parashar as a Special Judge to exclusively deal with “offences pertaining to coal block allocation matters”;
  • Transferred all cases pending before courts “pertaining to coal block allocation matters” to the Court of this Special Judge;
  • Clarified that “any prayer for stay or impeding the progress in the investigation/trial can be made only before this Court and no other Court shall entertain the same.”

The Delhi High Court in Girish Kumar Suneja v. CBI [Crl. M.C. No. 3847/2016, decided on 27.10.2016] dismissed a petition under Section 482 Cr.P.C. as being non-maintainable, being of the view that the Order dated 25.07.2014 passed in W.P. (Crl.) 120/2012 by the Supreme Court completely excluded the jurisdiction of the High Court (excluding appeals against judgments).

On January 24, 2017, the Coal Bench of the Supreme Court posted a batch of eight connected matters for hearing on the 6th of February (including the challenge against the Delhi High Court order in Suneja). These cases, both directly and indirectly, challenge an important issue of law: the exclusion of the High Court in either appeals, revisions, or writ jurisdiction in the coal block allocation cases. This has been discussed earlier, and I develop those thoughts in this post in support of the position that such an exclusion is unconstitutional.
Testing Article 14
In Anwar Ali Sarkar v. State of West Bengal [AIR 1952 SC 75], the West Bengal Special Courts Act 1950 was struck down as there was no guidance offered by Section 5 of that Act in prescribing which category of cases merited the special procedure, which greatly differed from the ordinary procedure prescribed in the Cr.P.C.
The Supreme Court thus upheld, in principle, creation of a specialised procedure through statute to address a particular category of offences. In Kedar Nath Bajoria v. State of West Bengal [AIR 1953 AIR 404], the majority concluded that the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 suffered from no infirmities when it allowed the executive to selectively send certain cases to Special Courts, as long as they were from a selection of economic offences provided for in the Schedule. Similarly, in Asgarali Nazarali Singaporewalla v. State of Bombay [AIR 1957 SC 503], the Supreme Court upheld the validity of the Criminal Law Amendment Act, 1952, which created a special procedure for the trial of offences under Sections 161, 165, 165A IPC and Sections 5(2) of the Prevention of Corruption Act, 1947 (all provisions now repealed).
In Re Special Courts Bill [AIR 1979 SC 478], the Supreme Court answered a reference under Article 143(1) of the Constitution of India, when the President sought consideration on whether the Special Courts Bill, 1978, was constitutional. On the issue of Article 13, the Justice Chandrachud (as he then was) provided a thirteen-limb test to judge the Bill, and found that it passed muster.
Adopting the tests laid down by the Supreme Court, it is apparent that the Order dated 25.07.2014 is bad in law. It creates a distinct category of cases “pertaining to coal block allocation matters” without specifying the scope and extent of this classification. Nothing is provided to show how the present classification carries any objective, and how it is connected to such an objective in the first place.
Just, Fair, and Reasonable?
The particular classification enforced by the Order dated 25.07.2014 creates a procedure that violates Article 21 of the Constitution, for it is not just fair and reasonable following the test of Maneka Gandhi v. Union of India [AIR 1978 SC 597]. The Supreme Court has, since Vineet Narain [(1996) 2 SCC 199; (1998) 1 SCC 226], reluctantly agreed to monitor investigations in certain sensitive cases. These ‘Court-Monitored Investigations’, have the agency report directly to the Supreme Court during investigation to the complete exclusion of other forums. However, as clearly held in Vineet Narain, the exclusivity came to an end with the completion of an investigation, and regular criminal procedure resumed.
In the present case, the exclusivity continues for the entire duration of the trial, and thus offends Article 21 of the Constitution. The concept of a fair trial is embedded within the notion of Article 21, and the idea of a fair trial encapsulates within it the concept of effective forums of Appeal. The adjudication in appeal or extraordinary situations by a constitutional court, i.e. the High Court, is certainly part of the fair trial guarantee under Article 21. The decision by a Division Bench of the Supreme Court in Shahid Balwa v. Union of India [(2014) 2 SCC 687] where such an exclusion was upheld must be reconsidered. The nebulous concept of ‘large public interest’ cannot override the concrete constitutional guarantees made to every person under the Constitution of India.
As the denial of adjudication by the High Court for only a vague category of persons is clearly contrary to Article 21, it must then be determined whether there is any law to save such discrimination. The order dated 25.07.2014, would not be law for the purposes of Article 21, and therefore nothing saves the violation of Article 21 in the present case.
Violating the Basic Structure?
The very exercise of the judiciary creating a special procedure for the trial of certain offences is contrary to the Basic Structure. The creation of offences, and the creation of their procedure, is a function well-vested with the Legislature in the separation of powers fundamental to the Constitution’s basic structure. Such usurpation of power offends the system of checks and balances that is inherent in the Constitution. It is akin to the process of re-promulgating ordinances, which a Seven-Judge Bench of Supreme Court recently held to be a fraud on the Constitution [Krishna Kumar Singh & Anr. v. State of Bihar & Ors, Civil Appeal No. 5875/1994, decided on 02.01.2017].
Furthermore, the Supreme Court in L. Chandra Kumar v. Union of India & Ors. [(1995) 1 SCC 400] found the complete exclusion of judicial review by the Administrative Tribunals Act, 1985 to be contrary to the basic structure of the Constitution. The power of the High Courts under Article 226/227 was specifically found to be part of the Basic Structure by the Constitution Bench in L. Chandra Kumar. Therefore, the exclusion of jurisdiction perpetrated by the Order dated 25.07.2014 is illegal, and accordingly cannot be given effect to.
Although it is settled that judicial orders are outside the purview of Part III of the Constitution [Naresh Sridhar Mirajkar, AIR 1967 SC 1], this cannot be utilised to do indirectly what is impermissible directly. A Seven-Judge Bench of the Supreme Court in A.R. Antulay v. R.S. Nayak & Ors. [(1988) 2 SCC 602] reviewed and set aside orders passed by another bench of the Court in proceedings whereby a special, but illegal, procedure was created to address the trial of certain offences against the erstwhile Chief Minister of Maharashtra. While doing so, it was observed that “the power to create or enlarge jurisdiction is legislative in character, so also the power to confer a right of appeal or to take away a right of appeal. Parliament alone can do it by law. No Court, whether superior or inferior or both combined can enlarge the jurisdiction of the Court or divest the person of his rights of revision and appeal.”


Filed under Access to Justice, Article 21 and the Right to Life, Article 226 Remedies, Basic structure, Equality, Jurisdiction

The Supreme Court’s Judgment on the Sale of Liquor along National Highways

In a judgment delivered earlier this week, a three-judge bench of the Supreme Court issued directions to the states and union territories to desist from granting licenses for the sale of alcohol along national and state highways, and also directed that no liquor shop be located within five hundred metres of the highway. Although the Court began its judgment with a nod to judicial review, in my view, it failed to demonstrate the legal source of its power to pass the directions that it did. This is evidenced by its reference, in paragraph 24(vii), to the constitutional catch-all:

“These directions issue under Article 142 of the Constitution.”

As I have argued before, however, Article 142 is not a carte blanche; it specifies that “the Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.” A preliminary condition for the applicability of Article 142, therefore, is that the Supreme Court act within its jurisdiction. One aspect of this, surely, is that the Court act in accordance with the separation of powers, even if it is the loose and flexible separation of powers that exists under the Indian Constitution. Now, under the Constitution, the power to grant liquor licenses rests with the states (under List II of the Seventh Schedule), and indeed, this legal fact was admitted by the Court  in paragraph 13. Directions to the state governments not to grant licenses for alcohol shops appear to encroach directly upon the legislative function, and therefore – prima facie – fall outside the “jurisdiction” of the Court.

The Court made two arguments to justify this exercise of power. First, it referred to a number of government policy documents that drew a correlation between alcohol consumption and road accidents. It also referred to the fact that the union Ministry had issued circulars “advising” the State governments not to grant any new licenses to liquor shops along the highways. However, at no point did the Court hold or observe that these policy documents or circulars had any kind of statutory or legal force. And in any event, as the Court itself admitted, the circulars were limited to the national highways, since the Union had no jurisdiction over state highways. In its judgment, however, the Court extended its directions to both national and state highways, and provided this by way of justification:

The power of the states to grant liquor licences is undoubted. The issue is whether such liquor licences should be granted on national and state highways at the cost of endangering human lives and safety. In our view, which is based on the expert determination of the Union government, we hold that the answer should be in the negative.”

With respect, this is not the issue. The issue is whether the Court is acting within its jurisdiction by taking over the function of the state legislatures to regulate liquor licenses, and on that question, the judgment remains silent. While the reasoning would be unexceptionable if it was in the Statement of Objects and Reasons of a Bill being tabled in a state assembly, it fails to address the essential issue of the Court’s jurisdiction, which is the precondition to the exercise of Article 142 power. Reference to the “expert determination” of the Union government does not help, because the question is not whether the Union government’s determination was correct or incorrect, but which body is authorised to act upon that determination.

Secondly, the Court made a brief mention of Article 21, observing that “… the court [is] not fashion[ing] its own policy but enforc[ing] the right to life under Article 21 of the Constitution based on the considered view of expert bodies.” While this pithy formulation is not developed further, an argument could be made that in granting liquor licenses along state highways, the state governments are failing in their positive duty to protect the fundamental right to life under Article 21 of the Constitution. Consequently, the Court’s directions – under Article 142 – are within its jurisdiction, since the Court is only performing its constitutional duty to ensure that the State abides by fundamental rights (whether in their negative or their positive aspects).

However, if this was the legal foundation of the judgment (and I can see no other), then the Court – I would suggest – was required to rest it on firmer evidentiary foundation than it did in the present case, and also, to provide a legal test for the degree of proximity required between State (in)action and the loss of life, for Article 21 (in its positive aspect) to be attracted. There are a lot of things that the State does or does not do, that ultimately affect peoples’ lives. For instance, people would probably live longer, and there would be fewer deaths by heart attacks, if the State was to ban all junk food. That, however, would not justify the Court invoking Article 21 and directing the State to ban all junk food.

The Court – as pointed out above – referred to the Union’s circulars and policy documents, which had found a correlation between access to liquor along highways and road deaths, and then observed that it would defer to these findings. However, this was not a case where the Court was adjudicating upon the validity of administrative action, where a simple, deferential approach would be appropriate. Here, the Court was using the Union’s policy documents to make a finding that the states were in breach of their obligations under Article 21. This, I would submit, requires more exacting scrutiny (and a legal test of causation) than what the Court engaged in.

Lastly, although the Court correctly followed precedent in holding that there was no fundamental right under Article 19(1)(g) to trade in alcohol, in my view, it missed an important aspect: while the right to trade in alcohol might not be a fundamental right, surely the right to consume alcohol – as an aspect of personal choice – is a fundamental right (Article 21). The Court may still have returned a finding that the limited removal of access to alcohol along highways did not affect the content of the right in any meaningful way, but it at least ought to have acknowledged the existence of the right, and engaged with the fact that there was some interference with it.

Unlike some recent orders delivered by other benches, the Supreme Court’s judgment in this case made a substantive attempt to ground itself within the parametres of the Constitution. In my view, however, in order to be persuasive, its reasoning needed to be substantially stronger than what it was.



Filed under Article 21 and the Right to Life, separation of powers, The Judiciary

Preventive Justice Part 2: Looking Inside Pandora’s Box

(In this second post of a series, Abhinav Sekhri continues with his genealogical analysis of the Constitution’s preventive detention clause. This essay has been cross-posted from The Proof of Guilt blog.)

In the previous post, I traced the history behind Article 22 of the Indian Constitution, showing how the clause was considered to be Dr. Ambedkar’s version of due process after that idea was excluded from Article 21 [India’s guarantee to protect the right to life and personal liberty]. Constitutional developments since have seen the Supreme Court re-introduce the due process idea into Article 21 most famously in Maneka Gandhi’s case. This, naturally, raises questions about the position of Article 22 in the panoply of rights to freedom guaranteed under the Indian Constitution. It leads me to consider the history behind the interplay between Articles 19 to 22 in this post. For this I have relied, again, on the books by Granville Austin and Mr. Seervai’s commentary, and I would strongly suggest those interested in the issue to consult these sources. I then argue, that Article 22(3)(b) – excluding the right to legal representation for those preventively detained – is contrary to Article 21.
The ‘Complete Code’ idea – AK Gopalan and RC Cooper
A.K. Gopalan v. State of Madras [(1950) SCR 88] is one of my favourite decisions of the Supreme Court, and probably one of the most misunderstood ones too largely due to the common vilification it suffers after Maneka Gandhi. A.K. Gopalan [Communist Leader, and later Member of Parliament] was detained under the Preventive Detention Act, 1950 [a legislation hastily passed by the Nehru Government a month after the coming into force of India’s Constitution to prevent release of the hundreds of persons detained under laws that would soon lapse]. Gopalan challenged the Act for violating Articles 14, 19, 21 as well being contrary to Article 22 itself. The Court upheld the validity of the Act but held Section 14 unconstitutional for violating Article 22(5) – the provision prevented even courts from accessing materials on which detention orders were based.
This post is limited to only one of the several fascinating points of discussion thrown up by Gopalan. That is the issue of Article 22 being a ‘Complete Code’, which means that the legality of preventive detention laws is limited to being tested only against Article 22 and not the other fundamental rights in Part III of the Constitution. The Attorney General argued this was the correct position of law. Only Mahajan, J. agreed: “I am satisfied on a review of the whole scheme of the Constitution that the intention was to make Article 22 a self-contained in respect of the laws on the subject of preventive detention.” Kania, C.J., Sastri and Das, JJ. considered Articles 21 and 22 had to be read together [Kania, C.J.: “According to him [the Attorney General], Article 22 is a complete code. I am unable to accept that contention.”]. Fazl Ali, J. went a step further and observed that “In my opinion, it cannot be said that Articles 19, 20, 21 and 22 do not to some extent overlap each other.”
This means that the ‘Complete Code’ argument was rejected in Gopalan itself, the only doubts left were regarding applicability of Article 19 to preventive detention laws. Strangely, then, the majority of ten judges in R.C. Cooper [1970 SCR (3) 530, speaking through Shah, J.] held that “The majority of the Court [in Gopalan] held that Article 22 being a complete code relating to preventive detention, the validity of an order of detention must be determined strictly according to the terms and ‘within the four corners of that Article.” As Mr. Seervai notes, the majority incorrectly considered the ‘Complete Code’ idea as being approved by Gopalan and that this was further compounded in Haradhan Saha [(1975) 3 SCC 198]. In hindsight some good came of this error. The R.C. Cooper majority upheld the view of Fazl Ali, J. and overruled Gopalan for accepting the ‘Complete Code’ argument [wrongly, of course]. This cleared the way for preventive detention laws to also be subjected to Article 19 challenges, together with existing tests of Articles 21 and 22. The Article 21 test was later notably strengthened in 1978 by Maneka Gandhi transplanting ‘procedure established by law’ with ‘due process of law’ without amending the text of Article 21 itself. Subsequent years saw the just, fair, and reasonable logic of Article 21 seep into preventive detention laws – Francis Coralie Mullin [AIR 1981 SC 746] an eloquent instance of the same.
Pandora’s Box: Unleashing Article 21 on Article 22(3)(b)
Opening Pandora’s Box is shorthand for taking decisions without appreciating the consequences. I think the analogy aptly reflects the Supreme Court’s move to import ‘due process’ into Article 21. The interplay between the various ‘rights to freedom’ under Part III was based upon the specific exclusion of due process from Article 21 [discussed in the last post]. It is fair to say that the decision in Maneka Gandhiirreversibly severed Articles 19-22 from that original interpretation. Proceeding from this position, I argue that Article 21 and Article 22(3)(b) cannot coexist in the current constitutional scheme. The limited version of ‘due process’ guaranteed through Article 22 must give way.
Recall that Article 22(3)(b) barred persons detained under preventive detention laws from consulting and being defended by a legal practitioner of their choice. Like the rest of the preventive detention clause, this was considered necessary due to the situation prevailing at the time by Dr. Ambedkar. The Supreme Court noted its harshness but begrudgingly accepted this position. All this was because Article 22 represented the extent of due process guaranteed in the Constitution. Then the Supreme Court decided to introduce an unfettered concept of ‘due process’ into Article 21. This led the Court to note in Madhav Hoskot v. State of Maharashtra [(1978) 3 SCC 544] that a ‘procedure established by law’ entailed a right to appeal, right to counsel and imposed a duty upon the State to provide free legal aid (Krishna Iyer, J. even passed directions to that effect). How, then, does one justify the exclusion of this right to counsel through Article 22(3) to persons who perhaps are in greatest need of legal counsel?
Five judges in A.K. Roy v. Union of India [(1982) 1 SCC 271] squarely faced this contention. Their answer was simple: detenus had not right to counsel because Article 22(3) specifically excluded it. Notice the helplessness in the opinion: “It is therefore necessary that the procedure prescribed by law for the proceedings before the Advisory Boards must be fair, just and reasonable. But then, the Constitution itself has provided a yardstick for the application of that standard, through the medium of the provisions contained in Article 22(3)(b). Howsoever much we would have liked to hold otherwise, we experience serious difficulty in taking the view that the procedure of the Advisory Boards in which the detenu is denied the right of legal representation is unfair, unjust or unreasonable. … It is unfortunate that courts have been deprived of that choice by the express language of Article 22(3)(b) read with Article 22(1). [Emphasis mine]” What is crucial here, is the Court relying upon Article 22 itself as the yardstick to determine what is just, fair, and reasonable. I argue that this is incorrect, because after Maneka Gandhi the test of procedural fairness flows from Article 21 and not Article 22. In any event, no part of the Constitution itself remains above scrutiny, and the helplessness of the Court is akin to crocodile tears.
The idea of a ‘Complete Code’ in Article 22 was unassumingly sustained by the Supreme Court and eventually buried by it as well. The consequences of this, however, are something that the Court continues to struggle with. While I have focused on clause (b), the retention of Article 22(3) itself despite the Supreme Court heralding a ‘due process’ standard is unacceptable. Looking at decisions post 1980 concerning preventive detention, it is clear that judges appreciated the problem. Successive decisions did mollify the deprivation of a right to counsel. In Nand Lal Bajajv. State of Punjab [(1981) 4 SCC 327], the Court held that a detenu had a right to counsel where the Government was permitted to engage a lawyer to argue before the Advisory Board established under a preventive detention law. This, it reasoned, would violate Article 14 and Article 21. In A.K. Roy, after expressing its dire helplessness the Court did go ahead and hold that a person detained had a right to be assisted by a friend [“who, in truth and substance, is not a legal practitioner“] in making a representation. The Court has re-written Article 22(3) to this limited extent, but it dare not take the plunge and declare it wholly redundant.

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Filed under Article 21 and the Right to Life, Preventive Detention

The Bombay High Court’s Abortion Judgment: Some Unanswered Questions

On 19th September, a division bench of the Bombay High Court handed down a judgment on the interpretation of the Medical Termination of Pregnancy Act, 1973 (India’s abortion law). The case arose out of a suo motu PIL, which itself had arisen out of concern with the deplorable condition of a female prison inmate, but was subsequently expanded to deal with the termination of pregnancy of female prison inmates in general.

After considering the implementation of the Rules in the Maharashtra Prisons Manual, the Court moved on to an examination of the Medical Termination of Pregnancy Act. The relevant section(s) of the MTP Act are:

“Sec. 3(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,-

(a) where the length of the pregnancy does not exceed twelve weeks if such medical practitioner is, or

(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are of opinion, formed in good faith, that,-

(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health ; or

(ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.

Explanation 1.-Where any, pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

Explanation 2.-Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.

With respect to Explanation 2 being limited to contraceptive failure in case of married couples, the High Court held that “today a man and a woman who are in live-in-relationship, cannot be covered under Explanation 2 whereas Explanation 2 should be read to mean any couple living together like a married couple.” (Consider the similarities with US vs Windsor) Unfortunately, however, the High Court provided no principled justification for this expansive reading of the term “married”. Presumably, the justification lies in the requirement that statutory texts must be interpreted in light of background constitutional principles (see here for a more detailed analysis of this doctrine); which constitutional principles was the Court applying, however? The answer would have implications going beyond the specifics of this case. For instance, if the background principle was equality, and the irrationality of drawing a distinction between married and unmarried couples, then a similar argument could potentially be raised to attack the married/unmarried distinction in the marital rape exception. On the other hand, if the background principle was the right of the woman to bodily integrity and decisional autonomy (something the Court went into subsequently), then there could be no justification for limiting the Explanation to couples living together as married. Consequently, it would be vulnerable to a possible future constitutional challenge asking the Court to strike off the word “married” from the statute altogether, and extend its application to all women. Therefore, the Court’s laconic reading of “married” to include relationships in the nature of marriage, despite its undeniably important practical implications, is something of a missed opportunity.

In subsequent paragraphs, the Court then examined pregnancy, and the unequal burdens that it imposed upon women. It observed that:

“There are social, financial and other aspects immediately attached to the pregnancy of the woman and if pregnancy is unwanted, it can have serious repercussions. It undoubtedly affects her mental health… it is mandatory on the registered medical practitioner while forming opinion of necessity of termination of pregnancy to take into account whether it is injurious to her physical or mental health.”

The Court’s focus on mental health – and its observation that because of its social, financial and other aspects, unwanted pregnancies affect women’s mental health – are important, because under Section 3, the medical practitioner must make a “good faith” assessment about whether the pregnancy is harming the woman’s mental health. Taking this forward, the Court then noted that:

“A woman’s decision to terminate a pregnancy is not a frivolous one. Abortion is often the only way out of a very difficult situation for a woman. An abortion is a carefully considered decision taken by a woman who fears that the welfare of the child she already has, and of other members of the household that she is obliged to care for with limited financial and other resources, may be compromised by the birth of another child… these are decisions taken by responsible women who have few other options. They are women who would ideally have preferred to prevent an unwanted pregnancy, but were unable to do so. If a woman does not want to continue with the pregnancy, then forcing her to do so represents a violation of the woman’s bodily integrity and aggravates her mental trauma which would be deleterious to her mental health.”

And further:

“The right to control their own body and fertility and motherhood choices should be left to the women alone. Let us not lose sight of the basic right of women: the right to autonomy and to decide what to do with their own bodies, including whether or not to get pregnant and stay pregnant.”

The Court went on to affirm that the right to reproductive choice was a facet of ‘personal liberty’ under Article 21 of the Constitution. These observations, it would appear, lead to only one conclusion: if the woman’s right to bodily integrity and decisional autonomy is paramount, then, under Section 3, her decision to terminate the pregnancy must be dispositive of the question of good faith; in other words, the medical practitioner cannot, in “good faith”, contradict the woman’s informed choice to terminate her pregnancy, or substitute his judgment about what constitutes a threat to her mental health over hers. Inexplicably, however, the Court did not make this last – but crucial – interpretive step. After making its remarks about bodily integrity and decisional autonomy, the Court went back to the original question of prison inmate pregnancies, and passed directions to facilitate termination “in accordance” with the MTP Act.

Consequently, the Court’s treatment of Section 3 is – in my view – an even greater missed opportunity than it’s reading of Explanation 2 (where, at least, it returned a clear interpretive finding). Once the Court had gone as far as to say that an unwanted pregnancy, ipso facto, presented a substantial danger to a woman’s mental health because of its economic and social consequences, it required but a small, further step to hold that, in the background of Article 21, Section 3’s “good faith” requirement made the woman’s decision paramount. In the absence of a direct interpretive finding though, there is a risk that the judgment – like many other well-intentioned judicial efforts – will remain mere rhetoric.

It is also an opportunity missed from the perspective of the evolution of constitutional doctrine. What the Court was effectively doing, both in its reading of Explanation 2, and in its interpretation of Section 3, was interpreting statutory provisions in light of the Constitution, in order that they would yield a meaning that was not immediately obvious or intuitive. Reading statutes in light of the basic law is a practice that has nuanced variants in different jurisdictions. How far can a Court go? Is this mode of interpretation limited to situations where there are two equally valid interpretations of a statute, and the Court then selects the one that is more in conformity with constitutional principles (New Zealand)? Or – slightly stronger – may the Court select the meaning that is most in conformity with the Constitution, as long as it can be plausibly borne by the text (UK and the Human Rights Act)? Or can the background law become constitutive of statutory meaning (Germany)? The Bombay High Court, in this case, found itself on the strong side of the spectrum – it effectively used the background Constitutional principles to attribute meanings to “marriage” and “good faith” that could almost certainly not be supported independently (but were not entirely outside the bounds of possibility either). Indian doctrine has, at various times, adopted these differing standards, without a clear conceptual analysis about what the Constitution actually requires, by way of interpretation. The wait for that will continue.


Filed under Article 21 and the Right to Life, Bodily Integrity, Constitutional interpretation

Guest Post: On the Supreme Court’s Encounter Killings Judgment

(In this post, Anupama Kumar, a practicing advocate based in Chennai, raises some questions about the recent Supreme Court order on alleged extra-judicial killings in the state of Manipur)

Recently, the Supreme Court passed an order in Extra Judicial Execution Victim Families Association vs Union of India [“EEVFAM”]. The petitioners, the Extra-judicial Execution Victims’ Families Association of Manipur, had compiled a list of “encounter killings” that had been carried out by the armed forces in Manipur. The short point before the Court related to the establishment of a Special Investigation Team to inquire into these killings. In this order, the Court made no observations on the formation of this SIT, but concluded that the petitioners did indeed have a “right to know” the truth under Article 21. As a result, while an inquiry can be carried out into the killings, the question of who is to carry it out remains open. The Court then examined the question of whether the Army enjoyed impunity for encounter killings under the AFSPA. I submit that this analysis of the powers of the Army under AFSPA remains unsatisfactory, and I explore this in greater detail below.

Lokur J began by analysing the scope of Entry I, List II (“public order”) in relation to Entry 2A, List I (“Deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State in aid of the civil power; powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment.”). He reasoned that the two entries used the term “internal disturbance,” which is also found in Article 355 of the Constitution. Lokur J noted that, while the term “armed rebellion” had been substituted for “internal disturbance” in Article 352, it continued to be used in Article 355. He further noted that the implication of this has been examined in Naga People’s Movement for Human Rights by four judges as follows:

“The expression `internal disturbance’ has a wider connotation than `armed rebellion’ in the sense that `armed rebellion’ is likely to pose a threat to the security of the county or a part thereof, while `internal disturbance’, thought serious in nature, would not pose a threat to the security of the country or a part thereof. The intention underlying the substitution of the word `internal disturbance’ by the word `armed rebellion’ in Article 352 is to limit the invocation of the emergency powers under Article 352 only to more serious situations where there is a threat to the security of the country or a part thereof on account of war or external aggression or armed rebellion and to exclude the invocation of emergency powers in situations of internal disturbance which are of lesser gravity . This has been done because a proclamation of emergency under Article 352 has serious implications having effect on the executive as well as the legislative powers of the States as well as the Union.

The provisions of the Central Act have been enacted to enable the Central Government to discharge the obligation imposed on it under Article 355 of the Constitution and to prevent the situation arising due to internal disturbance assuming such seriousness as to require invoking the drastic provisions of Article 356 of the Constitution. The Central Act does not confer of the Union the executive and legislative powers of the States in respect of which a declaration has been made under Section 3. It only enables the personnel of armed forces of the Union to exercise the power conferred under Section 4 in the event of a notification declaring an area to be a disturbed area being issued under Section 3. Having regard to the powers that are conferred under Section 4, we are unable to appreciate how the enactment of the Central Act can be equated with the exercise of the power under Article 356 of the Constitution.”

The Court, in that case, then went on to conclude that the Armed Forces Special Powers Act was constitutional, to the extent  that the Union forces were to be used in aid of civil power.

The expression “internal disturbance” was then considered by three judges of the Supreme Court in Sarbananda Sonowal, which arrived at a curious test for what might amount to “external aggression.”  The Court in that case considered the constitutionality of the IMDT Act, and the alleged failure of the Union to stop large scale migration into Assam from Bangladesh. In concluding that even non-violent migration could amount to “external aggression.” In doing so, the court did not rely on the text of the Constitution, but on a speech made by Dr. Nagendra Singh at the United Nations, with respect to the influx of refugees into India from erstwhile East Pakistan.

Admittedly, the Court in EEVFAM was bound by decisions of higher benches in both Sarbananda Sonowal and Naga People’s Movement for Human Rights. However, these decisions raise the larger issue of the fact that there is no clarity with respect to when Union forces can be deployed, and what the role of the Union is in such cases.

A similar confusion exists with respect to the scope of the word “war”. The Court concluded that there was no material on record to show that the situation in Manipur had escalated into a war, and that in any case, there had been no declaration by the Union to this effect. (Paras 110-118). In doing so, the Court distinguished the case at hand from Navjot Sandhu, on the grounds that “war” required the presence of an animus to strike against the sovereignty of the Indian State. On fact, the attack in question was to the Parliament, i.e., to the very heart of Indian democracy. In sum:

Therefore, animus to wage a war or any other similar activity is important before a non-conventional war or war-like situation can be said to exist. Every act of violence, even though it may be directed against the armed forces or public officials would not lead to an inference that a war is going on or that war-like conditions are prevailing. Similarly, sporadic but organized killings by militants and ambushes would not lead to a conclusion of the existence of a war or war-like conditions. Were such a blanket proposition accepted, it would reflect poorly on our armed forces that they are unable to effectively tackle a war-like situation for the last almost six decades. It would also reflect poorly on the Union of India that it is unable to resort to available constitutional provisions and measures to bring a war-like situation under control for almost six decades. We cannot be expected to cast or even countenance any such aspersions on our armed forces or the Union of India. All that we can and do say is that in such a situation, our Constitution recognises only an internal disturbance, which is what the situation in Manipur is and that ought to be dealt with by the civil administration with the services of the armed forces that are available in aid of the civil power.

 Such reasoning raises several concerns. First, the decision in Navjot Sandhu  did not refer to the term “war” in Article 352, or anywhere in the Constitution, but to s. 121 of the IPC, i.e., waging war against the State. Second, in any event, the scope of s. 121 was also discussed in Kasab, where the attack was on privately owned structures in India. In that case, the Court found that the ingredients of s. 121 had been satisfied, as the attack was “against Indians,” “by foreigners”  and with the intention of creating “internal strife and insurgency.” However, in this case, Lokur J had noted that there had been insurgency in Manipur, and that the perpetrators were plainly terrorists. It therefore appears that, third, the Court’s conclusion that this was not a situation of “war” or “armed rebellion” was arrived at simply because any other result would be unpalatable.

It is noted that the question of when Central forces may be deployed within India has been examined by both the Sarkaria and Puncchi commissions on centre-state relations. In both cases, the Commissions concluded that the deployment of the Union forces should only take place in the rarest of cases, and that the deployment should be for the shortest period possible. The Puncchi Commission went as far as to suggest an amendment to Article 355, in order to clarify the proper scope of the powers of the Union. However, until these steps are taking, several questions continue to be left open. What is the scope of Entry 2A, List I, and to what extent can the Centre act independently of the States? When can the Union classify a situation as being serious enough to require classification as not simply “public disorder,” but “internal disturbance” or indeed, “armed rebellion,” of a nature that would require the invocation of Emergency under Article 352? How should the government now classify movements such as the Naxalite movement in Central India, or the movement for independence of Kashmir, and which of these would call for the deployment of Central forces not “in aid of civil power.”? And where the civil power is unable, or unwilling to restore order – as noted by the Court here – what is the correct scope of the powers of the Union?


Filed under Extra-Judicial Killing

The Bombay High Court’s beef ban decision

In a significant judgment delivered yesterday, the Bombay High Court struck down Sections 5D and 9B of the Maharashtra Animal Preservation Act, while upholding the other provisions of the act. Section 5D penalised the possession of beef, even if it had been brought from outside the state of Maharashtra. Section 9B reversed the presumption of innocence, and required that in a trial for the contravention of the Act, it would be for the accused to show that he had not violated the provisions of the law.

The Maharashtra Animal Preservation Act of 1976 had placed a ban upon cow slaughter in the state of Maharashtra. An Amendment Act – passed in 1995, but that only received Presidential assent in 2015 – extended the ban to the slaughter of bulls and bullocks as well. The Preamble to the Act was amended to specify that the Act’s purpose was the preservation of “cows, bulls and bullocks useful for milch, breeding, draught or agricultural purposes and for restriction on slaughter for the preservation of certain other animals suitable for the said purposes.” In addition to Section 5 of the Act, which now prohibited the slaughter of cows, bulls, and bullocks, the legislature added four sections: 5A, which prohibited transportation or export of cows, bulls or bullocks from within the State to any place outside the State for the purpose of slaughter “in contravention of the provisions of this Act“; 5B, which prohibited the purchase or sale of cows, bulls or bullocks for slaughter; 5C, which prohibited possession of the flesh of any cattle slaughtered in contravention of the Act; and 5D, which prohibited possession of cattle flesh brought from outside the State. To enforce these provisions, an amended Section 8 authorised Sub-Inspectors and higher-ranking police officers to search and stop vehicles, seize cattle flesh, and inspect any place. The Statement of Objects and Reasons of the Amendment Act specified that Maharashtra was a predominantly agricultural state, and that therefore, preserving animals for milch, draught and breeding purposes was specifically important.

All these provisions were challenged in a number of writ petitions, on grounds of Articles 19(1)(g), 21, 25, and 29 of the Constitution. These were heard and disposed off together by a two-judge bench of the High Court. To start with, it is important to note that to a large extent, the Bombay High Court’s hands were tied by a number of judgments of the Supreme Court that had upheld complete bans on cattle slaughter. From Mohd Hanif Qureshi to Mirzapur Moti Kureshi Kasab Jamat, numerous benches had consistently rejected arguments based upon the freedom of trade and the freedom of religion, and had held, instead, that the preservation of cattle in an agrarian economy was a matter of overriding public interest. Consequently, the Petitioners were very much swimming against the tide, and the rejection of most of their submissions cannot come as any great surprise.

The Court’s consideration of the substantive arguments begins at paragraph 92, on page 88 of the judgment. The first issue before the Court was whether the addition of “bull or bullock” to “cow” under Section 5 was constitutionally valid. Inevitably, the Court’s analysis largely mirrors that if Mirzapur Moti Kasab Kureshi Jamat, where a near-identical provision in Gujarat was upheld. In Mirzapur Moti, the Court had relied extensively on the Directive Principles of State Policy (in particular, Article 48) to uphold the prohibition. It had held that the importance of cattle to an agrarian economy justified a complete ban in the public interest, even though it did infringe Article 19(1)(g) of the Constitution. Following this, the Bombay High Court takes on board evidence (in the form of affidavits filed by the State) in order to determine the importance of cattle to the economy of Maharashtra (Paragraphs 101 – 109). It then proceeds to examine the challenge based on Article 19(1)(g), and after citing precedent, concludes:

“The question is whether the restriction imposed by Article 19(1)(g) is unreasonable. We find nothing unreasonable about the said restriction. It is for giving effect to Article 48 and Clause (g) of Article 51A of the Constitution of India. The restrictions are not arbitrary and therefore, do not infringe Article 14. Therefore, the challenge based on violation of Article 19(1)(g) to the amendment made to Section 5 of the Animal Preservation Act completely prohibiting the slaughter of cows, bulls and bullocks is without any merit.”

Unfortunately, this finding perpetuates a continuing confusion about the relationship between Parts III and IV of the Constitution. Under Article 19(6), there are two separate elements of a valid restriction upon the freedom of trade: public interest, and reasonableness. Over the years, the Courts have invoked the Directive Principles to hold both that a restriction is in the public interest, and that it is reasonable. This is very obviously incorrect. The Directive Principles are framed as goals that the State should take steps to accomplish. It therefore makes sense that a law directed towards fulfilling a Directive Principle must be held to be in the public interest. The requirement of reasonableness, however, has nothing to do with the goal that is sought to be achieved. Rather, it has everything to do with the methods applied to achieve that goal. In this enquiry, the DPSPs – which, by definition, are framed as goals – cannot help (for an examination of some of the cases, see here).

The use of DPSPs to find reasonableness denudes the enquiry of its substantive content. Just recently, the Supreme Court held that reasonableness, under 19(6), involves a “proportionality” enquiry. That enquiry did not happen in Mirzapur Moti, and it does not happen here. It is not simply enough to show that cows, bulls and bullocks play an important role in the agrarian economy – that only speaks to the public interest prong of the 19(6) enquiry. It is equally important to show that a complete ban on cattle slaughter is a proportionate way of addressing the problem, and that there do not exist other ways that could be equally efficacious, but which do not involve the same extent of infringement of Article 19(1)(g). This would require the Court to go beyond the affidavits submitted by the State, and engage in a first-level enquiry (something which, I’ve argued before, it ought to do when it comes to fundamental rights). Unfortunately, however, we only have a continuation of the same manner of deference to the State that has been the hallmark of previous cattle slaughter cases. Once again, though, it is difficult to see what else the High Court could have done, in the teeth of fifty-five years of consistent Supreme Court precedent.

The Court then goes on to reject the Article 25 challenge (again, following previous judgments that have held that cow sacrifice is not an “essential” part of Islam), as well as the Article 29 challenge (paragraphs 134 and 135). This brings the Court then, to consider the constitutional validity of Sections 5A, B, C, and D. The Court upholds Sections 5A (transport/import), B (sale/purchase) and C (possession) on the ground that they all have a direct and proximate nexus with the legislation’s goal of preventing cattle slaughter.

There are, however, two serious problems with this analysis. Consider, first, Section 5A, which prohibits transport to another State for the purpose of slaughter. The Court observes that “the object of the amendment to Section 5 is to preserve cows, bulls or bullocks inside the State. It can be said that this provision has a direct and proximate nexus with the object sought to be achieved by making amendment to Section 5 for imposing prohibition on slaughter of cows, bulls and bullocks in the State.” This, however, makes no sense. If the purpose is to preserve cattle inside the State, then the ban should be on all transport outside the State – what happens to the cattle once it exits the borders of Mahrashtra makes no difference to the fact that the moment it does, the cattle population of Maharashtra accordingly decreases. The Court understands this, acknowledging that the provision makes “little practical sense” (paragraph 137). But it then gets around that by holding that the Section covers “cover a hypothetical case of such transport of animals outside the State so as to slaughter it within the State, of course, after it is brought back to the State possibly by the slaughterer himself, the transporter and slaughterer being different persons.” 

But that is not what Section 5A, plainly worded, says. It penalises all transport outside the State for the purposes of slaughter, wherever that slaughter might take place. The Court’s construction of Section 5A, to save it from unconstitutionality, is strained to say the least.

Similarly, when examining Section 5C (possession), the Court holds that penalising possession is, likewise, required to effectively implement the ban on slaughter (paragraph 144). Matters are not so simple, however. What the Court fails to take into account is that enforcing the ban on possession will inevitably infringe the privacy of the possessor under Article 21 of the Constitution. This adds an extra layer to the balancing process. For instance, in Stanley vs Georgia, the American Supreme Court held that even though obscenity was not protected by the First Amendment, the criminalisation of mere possession of obscene materials could not be countenanced, on privacy grounds. While there are some important differences between the two cases, the basic argument is this: while the State may legitimately ban cattle slaughter under Article 19(6) of the Constitution, criminalising possession will require invasions of privacy that need to be separately justified under Article 21’s compelling State interest-narrow tailoring test (the Court does hold, however, that “possession” under 5(C) is limited to “conscious possession, and the burden of proving that is upon the State (paragraphs 149 – 150).

The Court’s failure to deal with privacy in its Section 5C enquiry is all the more disappointing, since it proceeds to do so extensively while discussing Section 5D (possession of the flesh of cattle slaughtered outside the State). Notwithstanding the pending Constitution Bench reference about whether or not privacy is a fundamental right, the Court exhaustively considers precedent on the point. It finds (correctly, in my opinion) that M.P. Sharma vs Satish Chandra was decided on different grounds, and Kharak Singh, while disclaiming an express right of privacy, nonetheless effectively derives a right of that nature from personal liberty under Article 21. Consequently, neither M.P. Sharma, nor Kharak Singh, can overturn the last forty years of established jurisprudence holding that privacy is a fundamental right under the Constitution (paragraphs 155 – 173). The Court then holds:

“As far as the choice of eating food of the citizens is concerned, the citizens are required to be let alone especially when the food of their choice is not injurious to health. As observed earlier, even a right to sleep is held as a part of right to privacy which is guaranteed under Article 21 of the Constitution of India. In fact the State cannot control what a citizen does in his house which is his own castle, provided he is not doing something which is contrary to law. The State cannot make an intrusion into his home and prevent a citizen from possessing and eating food of his choice. A citizen has a right to lead a meaningful life within the four corners of his house as well as outside his house. This intrusion on the personal life of an individual is prohibited by the right to privacy which is part of personal liberty guaranteed by Article 21. The State cannot prevent a citizen from possessing and consuming a particular type of food which is not injurious to health (or obnoxious). In the decision in the case of Hinsa Virodhak Sangh, the Apex Court has specifically held that what one eats is one’s personal affair and it is a part of privacy included in Article 21 of the Constitution of India. Thus, if the State tells the citizens not to eat a particular type of food or prevents the citizens from possessing and consuming a particular type of food, it will certainly be an infringement of a right to privacy as it violates the right to be let alone. If a particular food is injurious to health or a particular food is illegally manufactured, it will be a case of compelling public interest which will enable the State to deprive citizens of the right to privacy by following the procedure established by law. In the present case, Section 5D prevents a citizen from possessing and from consuming flesh of a cow, bull or bullock even if it is flesh of a cow,bull or bullock slaughtered in territories where such slaughter is legal. Hence, Section 5D is certainly an infringement of right to privacy which is implicit in the personal liberty guaranteed by Article 21.” (paragraph 176)

In this paragraph, the Court endorses two different (and complementary) conceptions of privacy. The first is a spatial vision: “the State cannot make an intrusion into his home… the citizen has a right to lead a meaningful life within the four corners of his house…” In other words, invasion of an individual’s “private space” in order to discover whether or not he is eating beef violates privacy (readers will not that this argument applies exactly to Section 5C as well). The second is a vision of privacy as decisional autonomy – “what one eats is one’s personal affair, and it is part of privacy… [Section 5D] violates the right to be let alone.” At first glance, it might not seem that dietary choices hardly implicate those kinds of fundamental life decisions that are normally associated with individual autonomy. This is perhaps why it might be more helpful to think of this not in terms of how central dietary choice is to individual autonomy, but in terms of something that Jed Rubenfeld has called the “anti-totalitarian principle” (previously discussed here): State power ought not to be used for “forcing of lives into well-defined and highly confined institutional layers.” Control over diet is one instance of State shaping lives into a rigid pattern (often justified by ideological considerations).

The Court ends by concluding that even if there is no right to privacy under the Constitution, intrusion into private dietary choices clearly violates personal liberty under Article 21 (paragraph 193).

As I mentioned in the beginning of this post, the Bombay High Court did not have very much choice when it came to upholding the cattle slaughter ban, generally. There were, however, good reasons to strike down Sections 5A and 5C, and to that extent, the judgment is disappointing. It is also disappointing that the well-documented discriminatory effect of the ban on certain castes and classes, in terms of economics and affordability (leading to a possible Article 14 and 15 claim), was discussed cursorily at best  The strong endorsement of a robust privacy right, however, is certainly encouraging.

(A guest post tomorrow will discuss the concurring opinion, which strikes down Section 9B’s reverse burden as unconstitutional)


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Filed under Privacy, Surveillance

Judicial censorship: A dangerous, emerging trend

Last week, the Indian Express reported that in proceedings before the Supreme Court, the Additional Solicitor General was asked by the bench about how the State planned to regulate “explicit” pictures on condom packets. The case seems to have arisen out of a 2008 order of the Madras High Court (which, unfortunately, does not seem to have been reported, and is not available on the High Court’s website). The Madras High Court had effectively imposed prior restraint upon condom manufacturers by requiring them to have their packets cleared by the Advertising Standards Council of India – which happens to be a private body. The Order had been stayed on appeal, and the Court is now in the process of hearing the appeal on merits. The Madras High Court – this time, through its Madurai bench – was in the news for the second time in the same week, when Justice R. Mahadevan acted upon a PIL and ordered that the study of the Tamil epic “Thirukkural” be made compulsory in schools (this judgment is available on the website, as WP (MD) No. 11999 of 2015).

The thought of the Learned ASG spending the better part of the next six weeks poring over condom packets might justifiably evoke some mirth; and we might ruefully sigh with all those school-going students in Tamil Nadu who now have to sit and swot more than a thousand couplets under compulsion. However, these cases also exemplify an evolving trend in Indian free speech jurisprudence which, if it crystallises, could lead us into a new and dangerous era of speech contraction, and one that is wholly uncontemplated by the Constitution.

Attentive readers are no doubt aware that the Indian judiciary has always had an ambivalent relationship with free speech. Rarely have the courts struck down speech-restricting laws on the touchstone of Article 19(1)(a), choosing instead to uphold them, often on an expansive interpretation of the categories of Article 19(2). The Courts have upheld prior restraint under the Cinematograph Act, government notifications that amount to compelled speech, and law of sedition, etc. However, they have done so while exercising their functions as constitutional courts – i.e., adjudicating upon the constitutional validity of laws or executive acts that are challenged before them. This is a role that is envisaged by the constitutional text. Article 19(2) clearly states that:

“(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”

Evidently, therefore, a pre-requisite for imposing restrictions upon speech is the existence of a law, which conforms to the categories laid out under Article 19(2). Whether or not a particular law does so is a matter for the courts.

As long as the courts stick to their role, their impact upon the freedom of speech is accordingly limited to deciding upon the validity of existing laws. For that, a law needs to exist in the first place, and secondly, even if upheld, options are not foreclosed: there is always the possibility of repeal through the parliamentary process (in fact, the Press Emergency Powers Act, and the TADA, both of which were upheld by the Supreme Court, were ultimately repealed or allowed to lapse).

The condom case and the Thirukurral case, however, are beats of a very different sort, because they involve the Court imposing restrictions upon free speech in the absence of any existing law, and acting upon a public interest litigation. Nor are they isolated cases. In recent years, a trend has begun to emerge, which may broadly be divided into two kinds of judicial action:

A. The Use of Article 21 as a Sword

The expansion of Article 21’s guarantee of the right to life and personal liberty, in the early years of the PIL era, is now legendary. When it began, the purpose of this reading of Article 21 was to move beyond the perceived limitations imposed by a textual interpretation of the clause, and bring in socio-economic rights into Part III. Critiques of this judicial movement have focused upon how this expansion reached absurd levels, effectively denuding Article 21 of meaning or force. This is undeniable; nonetheless, as long as Article 21 was only used as a shield for individuals against state action, the worst that could happen would be that it would become a rather ineffective shield.

It is quite inevitable, however, that as Article 21 would grow larger and larger, it would inevitably begin to come into conflict with other rights under Part III. The first serious conflict of this sort occurred with R. Rajagopal’s Case in 1994, when privacy and free speech clashed. The clash was sharpened in a series of cases in the late 90s and early 2000s, with the Court framing the issue as one involving a balance between an individual’s Article 19(1)(a) right of speech and expression, and another individual’s Article 21 right to privacy. There is nothing specifically peculiar about this particular clash: the Supreme Court’s interstitial reading of privacy as an aspect of Article 21 is among the more defensible aspects of its 21 jurisprudence, and the clash between free speech and privacy has occupied constitutional courts all over the world.

In 2005, however, in a rather bizarre judgment called In Re Noise Pollution, the Supreme Court, while passing directions on a public interest litigation pertaining to the use of firecrackers, loudspeakers etc. had this to say:

“Those who make noise often take shelter behind Article 19(1)A pleading freedom of speech and right to expression. Undoubtedly, the freedom of speech and right to expression are fundamental rights but the rights are not absolute. Nobody can claim a fundamental right to create noise by amplifying the sound of his speech with the help of loudspeakers. While one has a right to speech, others have a right to listen or decline to listen. Nobody can be compelled to listen and nobody can claim that he has a right to make his voice trespass into the ears or mind of others. Nobody can indulge into aural aggression. If anyone increases his volume of speech and that too with the assistance of artificial devices so as to compulsorily expose unwilling persons to hear a noise raised to unpleasant or obnoxious levels then the person speaking is violating the right of others to a peaceful, comfortable and pollution-free life guaranteed by Article 21. Article 19(1)A cannot be pressed into service for defeating the fundamental right guaranteed by Article.”

To start with, there was absolutely no need for Article 21 to be brought into the picture. Free speech jurisprudence has a well-known category called “time, place and manner” restrictions, under which regulation that do not affect the content of speech, but merely how and in what manner the right to speech is to be exercised, are not deemed to infringe the freedom of expression. The underlying logic is obvious, and does not need explanation. Instead of relying upon this argument, however, the Court decided to use a hugely expanded Article 21 as a sword, and cited the right to a “peaceful, comfortable and pollution-free life” under Article 21 to defeat the freedom of speech under Article 19(1)(a). The problem, of course, is that the phrase “peaceful, comfortable and pollution-free life” is blissfully vague.

This vagueness in the usage of the expanded Article 21 also allowed the Meghalaya High Court, in May last year, to unilaterally gag the local media from reporting on bandhs. The Court observed:

“Hence, we direct that the statements of HNLC or any organization which may disturb the even tempo of day-to-day public life and cause violation of Fundamental rights of citizens in particular under Article 19 and 21 of the Constitution.” 

The perils of using Article 21 to restrict other rights under Part III are exemplified in the ongoing “porn ban litigation” before the Supreme Court (Kamlesh Vaswani vs Union of India), where an expansive reading of Article 21 is cited as one of the reasons for the Court to act upon pornographic websites, in the absence of any law. Notice, however, that unlike privacy, which remains a relatively narrowly defined right, the Kamlesh Vaswani petition draws upon a whole host of constitutional provisions, including the non-enforceable Directive Principles, to justify restrictions upon free speech (the two issues are not isolated – the expansion of Article 21 has been accompanied by increasing recourse to the DPSPs and the “fundamental duties” chapter).

And it is the Madras High Court’s Thirukkural judgment, however, that this form of reasoning reaches its absurd limits. In a series of logical leaps that would ensure a flunking grade in a first-year Legal Methods exam, Justice Mahadevan derives a right to live in an “ordered society”  from the Constitution, takes note of increasing social and cultural degradation, cites extensively from the Thirukkural, and ends by noting that “moral values are more important that other values. Once, the moral values are lost, it is only a matter of time before the person falls, despite possessing all other qualities, which may earn in name, fame, power and money. If Thirukkual is taught with all its avenues and dimensions elborately, the students would be equipped with all the facets of life, the probable problems and the solutions. The couplets about friendship, hard work, good character, patience, tolerance and confidence will guide them through, even the most difficult of times. Thirukkural will give them the inner strength to withstand any storm. Therefore, this Court commends that appropriate action must be taken by the government through the committee which decides the syllabus, considering the noble objective and the demanding situation and finalise the syllabus for the next academic year by including 108 Chapters/ Adhigarams of Thirukkural (Arathupal and Porutpal) in the curriculum of students between VI Standard to XII Standard, keeping in mind that the purpose of education must be to build a nation with moral values.” The Constitution, in other words, has become a charter for compelled speech.

B. Judicial Restrictions under Article 19(2)

The condoms case is an instance of a different kind of judicial censorship: here, the judiciary imposes speech restrictions under Article 19(2) (in this case, the obscenity clause). While obscenity is undoubtedly a ground to restrict speech under Article 19(2), the text of that clause makes it abundantly clear that what is contemplated is a law made by the State, and not (what is colloquially called) “judge made law”. If the State chooses not to restrict “obscene” picture on condom packets, then it is not for the Court to substitute itself in the State’s place, and impose the restrictions through judicial fiat.

What is particularly disturbing is that each of these cases – the condoms case, the Thirukkural imposition, In Re Noise Pollution, and Kamlesh Vaswani – are PILs. In most jurisdictions, individuals approach the Court for relief against State-imposed restrictions on free speech. The PIL, however, seems to be turning us into a jurisdiction where individuals can impose the Court to impose restrictions on speech! Quite apart from the fact that this was never the intention of the PIL, and never the intention of the Constitution, the prospect of the judiciary becoming a forum where people can take PILs aimed at contracting the individual rights under Part III, is a truly frightening one.


Filed under Article 21 and the Right to Life, Free Speech