Analysis: Plea seeking Waiver of Private School Fees

Reading time: 8-10 minutes.

The Covid-19 pandemic has brought the whole world to a standstill. People from all walks of life are facing the brunt of the pandemic. Amidst the pandemic, the education industry was tasked with keeping classes going for its students. With schools shut due to the lockdown, physical teaching became an impossibility. This resulted in online classes being formalised. In the current context, online classes are classes taken by the teachers that students attend from their homes through a computer, laptop, or smartphone. For the smooth conduct of online classes, the student and teacher must have a stable and fast internet connection, a smart device and a basic understanding of how to operate the device and applications. 

While there are apparent advantages of online classes, such as inter-personal interactions between teachers and students while sitting in the comfort of their homes, there are obvious disadvantages too. The virtual schooling systems cannot by any standard of comparison be considered at par with the overall schooling experience. While private schools are trying their best to incorporate curricular, co-curricular and extra-curricular activities within the ambit of this virtual system, several parents are unhappy with the fees that is being charged from them under the pretext of online classes. This was the backdrop that led them to challenge the fee structure before the Hon’ble Supreme Court. In the petition, the Petitioners have expressed disappointment at the Union and State Governments for not putting out proper guidelines for the conduct of the same. However, the Hon’ble Apex Court dismissed the Petition and asked the Petitioners to approach jurisdictional courts in their individual States.

Facts of the Issue

The Petitioners, who are the guardians of the wards studying in different schools of the country, had approached the Hon’ble Supreme Court by invoking its jurisdiction under Article 32, seeking the protection of right to life and right to education guaranteed under Article 21 of the Constitution of the country.

The Petitioners claimed to be aggrieved with essentially two issues: the demand for payment of fees; and the non-payment of which will result in their child’s termination from the school. They alleged harassment by the school authorities to pay fees in advance. They claim that despite the schools not functioning as usual, they are being forced to pay fees for such periods. This Petition was at the time when online classes had not become the usual norm that it is today. No rebate had been offered to the parents, in fact, a fee hike had been opted by some school under the pretext of online classes.

The secondly grievance alleged by the parents was with the variance in orders across the various States in the regulation of online classes. The Petitioners prayed for a uniform set of guidelines for the whole country. Also, they complained that no order or notification has been issued for the students of economically weaker sections (“EWS”), who do not have access to the internet or devices, and are therefore at a naturally disadvantageous position with respect to online classes. Thus, violating their right to education, which is recognised within the ambit of Article 21, and specifically incorporated under Article 21A. They further contended that online classes are taken in an unregulated manner, which causes health problems and also makes kids prone to cyber offences. Lastly, the Petitioners prayed that their wards be not expelled from schools on account of default in payment of fees and to constitute a committee, to regulate the school fee structuring at a pan India level.

Legal Provisions Involved

The prime attention of this debate, and consequent Petition has been focused on Article 21, which guarantees the right to life and Article 21A, which guarantees the right to education for all children between the ages of six and fourteen years. In furtherance of which, The Right of Children To Free And Compulsory Education Act, 2009 (“the Act”) was enacted squarely for the purpose of ensuring that the benefit of education reaches all children, irrespective of socio-economic status. The scope of the Act extends to private schools which receive aids from the Government and it requires such schools to reserve 25% of its seats for students from the economically backward sections. This has made education more accessible, universal as well as democratic. These are the primary legal provisions one finds embroiled in the issue.

The scope of Article 21 is enormous and through judicial review, the scope of Article 21 can be enlarged. It encompasses all those aspects of a man’s life which make it meaningful, complete and worth living. It is within this context that financial constraints act as a thorn. The Petitioners rightly pointed out that the fees demanded from them under normal circumstances covers the additional fees of library, electricity, transport etc. All of these are facilities and amenities that the students are unable to access at the moment, on account of the lockdown restrictions. Hence, the parents claimed that they were being unfairly charged for services that their wards have not utilised. Further, a hike in fees during such times was claimed to be not justified, for obvious reasons. The consequence of the parent’s failure to pay fees, would result in the student being expelled from the school, impeding their education.

Then comes the aspect of doctrine of parens patriae, which means that the State acts as a parent to guard its citizens from any calamity, and look out for their best interest. The Petitioners invoked this doctrine, demanding the State to protect the students from expulsion on account of default in payment of fees.

Critical Analysis

It is a constitutionally guaranteed right of every citizen to approach the Hon’ble Supreme Court in cases of violations of its fundamental rights. In the present case, the case of the Petitioners was that their fundamental rights under Article 21 and 21A were being violated. In such a scenario, the people look up at the Hon’ble Supreme Court to remedy their grievances and provide them with justice. However, the Hon’ble Supreme Court ruled against the Petitioners and instead asked them to approach the respective High Courts of their states, some of which have already allowed school fees to be paid without any reductions. In the Author’s view, the Apex Court ought to have paid more heed to the Petition and the contentions raised therein. Afterall, the reliefs being sought were of equitable nature. 

Conclusion

Financial constraints are the main problem people are facing in these trying times. Waiver of school fees, at least for the facilities not availed by the students during the lockdown should be mandated. Also, it is imperative that parents are given a fair amount of time to pay the fees and are not harassed and threatened with expulsion for the same. Insofar as online classes are concerned, it is advisable that States release comprehensive guidelines so as to regulate their structure and make provisions to afford feasibility of this development to all student, alike. A moratorium similar to the loan moratorium proposed by Reserve Bank of India might be considered in the education industry, for fee payment as well. Such decisions will be in the best interests of the students and the society.

Author: Sreyas T. Manoj from The National University of Advanced Legal Studies, Kochi.

Editor: Astha Garg, Junior Editor, Lexlife India

Constitutional Law: Raghunath Rao Case

Reading time: 8-10 minutes.

The Constitution of India is the supreme law of the country, conferring power to other laws that govern and regulate the legal framework. But through the course of time, some laws may require changes to be made while some may have to be completely eliminated. This was the basic idea behind the Constituent Assembly giving the legislature the power to amend existing laws. However, the amending powers are subject to some limitations and a certain procedure must be followed by the Parliament, i.e. “procedure established by law”.

This procedure is mentioned in Article 368 of the Indian Constitution. Since the Constitution came into force, the Parliament’s amending powers under Article 368 has been subject to many challenges before the Supreme Court. Some of the most notable cases in this regard are Keshvananda Bharti case, Golaknath case and the Minerva Mills case. Raghunathrao Ganpatrao v. Union of India is another such case in which the power of the government to amend the basic structure was challenged by Shri Raghunathrao Raja. The former ruler of the Indian state Kurundwad claimed that the Twenty Sixth Constitution Amendment Act was beyond the amending powers of the parliament and infringed upon the basic structure of the Constitution.

Background

When British India was granted independence in 1947, there were a large number of Princely States. These states had local Maharajas ruling them and they constituted a very significant portion of the subcontinent’s area and population. After independence, they had the freedom to choose a future course of action for their states. Aside from consolidating into one of the newly formed dominions of India and Pakistan, the states could choose to remain sovereign.  Following extensive efforts by VP Menon and Sardar Vallabhbhai Patel, the major fraction of Princely States joined India by signing instruments of accession.

By means of the instruments, the rulers needed to surrender defence, communication and foreign affairs to India. Different Princely States merged to form new ones that were controlled by the Indian government. The maharajas of erstwhile Princely States were provided tax-free sums of money by the Government of India. These sums were called ‘privy purses’ and the amount to be paid depended on various factors like the revenue being generated by the State. The amount was to be paid from the Consolidated Fund of India. After the death of the ruler, the family successor would be entitled to payment of the sum. Since most of the rulers were initially averse to losing their sovereignty, promise of privy purses served as a huge driving force leading to the settlement between them and the Government of India.

Over the course of time, attempts were made by several leaders to reduce or abolish the privy purses. These attempts were met with objection by others. Sardar Vallabhbhai Patel was one such leader who threatened to resign in case the government reneges on its promise. In 1970, a motion was brought in the Parliament for the abolition of privy purses. The same was passed in the Lok Sabha, but failed by one required vote in the Rajya Sabha. Following this defeat, an order was passed by the then President V.V. Giri scraping rulers’ right to privy purses. This order was in consonance with the president’s powers under article 366(22) of the Constitution. Subsequently, a petition was filed before the Supreme Court and the order was struck down in the famous case H. H. Maharajadhiraja Madhav Rao v. Union of India. In 1971, the Indira Gandhi led government brought the 26th Amendment Act, which stripped the rulers of any special recognition and abolished the payment of privy purses. The validity of the same was questioned in the Raghunathrao Case and it was finally held by the Hon’ble Supreme Court that the 26th Amendment Act was valid in its entirety.

Provisions involved

The rulers of former princely states were guaranteed privy purses by adopting Article 291 of the Indian Constitution. Article 362 recognized the personal rights and privileges of the rulers. Further, Article 366(22) defined which persons could be considered rulers and would be entitled to privy purses. The 26th Amendment Act passed in 1971 repealed Articles 291 and 362 from the Constitution and clause 22 of Article 366 was substituted with Article 363-A. By virtue of Article 363-A, the special recognition and privileges enjoyed by the rulers were withdrawn. Additionally, the petitioner also challenged the constituent powers of the Parliament to amend the said provisions. It was claimed on the petitioners’ behalf that the special status of rulers along with the privy purses formed the basic structure of the Constitution. Hence, the 26th Amendment Act was ultra vires and therefore, unconstitutional. Moreover, it was contested that the Amendment Act was violative of Articles 14, 19(1)(f) and (g), 21, 31(1) and (2) of the Indian Constitution.

Critical Analysis

In so much as the case was concerned with the distinctive issue of privy purses and rulers, it also involved the questions as to the subjects constituting the ‘basic structure’ and what is the extent of legislature’s amending powers. The petitioners pointed out that accession of Princely States was a very crucial factor in shaping the post-independence Indian scenario and if it had not been for the rulers’ approval to merge, formation of the Union of India would be out of question. This, it was argued, also made the agreement of privy purses an ‘integral’ part of the Constitution. Further, it was contended that the losses that were suffered by agreeing to merge were far greater than the compensation that was being provided as consideration to the maharajas. The counsel for the petitioner asserted that the impugned Amendment stood as an ‘epitome of immorality’.

The respondents opposed claims of immorality by contending that it was a basic principle fo jurisprudence, that ‘a law could not be interpreted on the basis of moral principles’. However, their main contention was that special rights and privileges were incompatible with a republican and sovereign government, which was also the underlying basis behind the Amendment. Apart from highlighting the difference between ‘integral part of Constitution’ and the ‘basic structure’, it was also asserted that to say that without the rulers’ assent, integration of India wouldn’t be impossible is highly improper. This is due to the fact that there was a popular gust of nationality swarming among the people after independence which played a huge role in the merger agreements.

Conclusion

In its decision, the Supreme Court upheld the validity of the 26th Amendment Act in its entirety. It was also held that the said amendment did not violate Articles 14, 19(1)(f) and (g), 21, 31(1) and (2) of the Constitution. It was stated that immorality should be viewed separately from legislation as they greatly differ from each other. Furthermore, the amendment causes no change to the basic structure of the Constitution. The issue of privy purses that began in 1970s was finally decided in 1993 in the Raghunathrao case. However, it still remains the subject of debates and dialogue among many, even today.

Author:  Anany Raj Singh from Rajiv Gandhi National University of Law.

Editor: Astha Garg, Junior Editor, Lexlife India

Constitutional Law: Waman Rao Case

Reading time: 8-10 minutes.

The case of Minerva Mills v. Union of India (“Minerva Mills”) is one of the finest examples exhibiting the advantages of the system of checks and balances. The vigil of the Apex Court negated the agenda of the Parliament to become the supreme law-making body. The genesis of the case lies in the Parliament enacting the Constitution (42nd Amendment) Act, 1976 (“the Act”), which gave vast powers to the Parliament to enact laws by abrogating the fundamental rights and making them subservient to the Directive Principles of State Policy. In addition to that, the scope of judicial review was also curtailed. 

The Parliament’s power to amend the Constitution had been in dispute for a long time. Before Minerva Mills, the Supreme Court in I.C. Golaknath v. State of Punjab held that the Parliament could not amend the Fundamental Rights, which was later overruled in Kesavananda Bharati v. State of Kerala (“Kesavananda Bharati”). The law laid in Keshavananda Bharati was that the Parliament could amend the Constitution subject to the limitation that it did not alter or destroy its basic structure. 

The dispute arose when the Government decided to hand over the administration of Minerva Mills to the National Textile Corporation Limited under the provisions of the Sick Textile Undertakings (Nationalisation) Act, 1974. The takeover was the result of a report filed by a committee appointed by the Government under Section 15 of the Industries (Development and Regulation) Act, 1951 to investigate the company’s affairs. The Committee opined that there had been or there existed a chance of a decrease in volume of production. This aggrieved the shareholders of Minerva Mills, who filed a writ petition before the Hon’ble Supreme Court under Article 32 of the Constitution. Among challenges to other provisions, the Petitioners challenged the constitutional validity of the Act which is the bone of contention in the present case.

At the heart of the dispute in Minerva Mills were Sections 4 and 55 of the Act. The Hon’ble Court had to decide whether Sections 4 and 55 of the Act violated the limitation laid down in Keshavananda Bharati, resulting in the violation of the basic structure of the Constitution. Section 4 of the Act amended Article 31C, and declared all laws made in pursuance of Directive Principles of State Policy, which are inconsistent with Articles 14, 19 and 31 will not be void nor can be challenged before a Court of law. Further, Section 55, introduced clauses 4 and 5 to Article 368. Clause 5 conferred upon the Parliament the power to bring in amendments that could alter or destroy the Constitution’s identity whereas clause 4 curtailed judicial review of amendments altogether.

By a majority of four judges and the lone dissent of Justice PN Bhagwati, The Hon’ble Supreme Court declared Sections 4 and 55 to be unconstitutional to the extent that they violated the basic structure doctrine. Justice Chandrachud, writing on behalf of himself and three others, has given a reasoned decision as to why the provisions failed to stand the test of constitutionality. Firstly, the Court expounded the nature of Clause 5, which it determined demolished the very basis of democracy. Further, under Article 368 only limited amending power is provided, which cannot be the touchstone to enlarge the amending power. Clause 4 deprived the Courts with the power of judicial review and hence it was deemed unconstitutional as well. Article 31C was deemed void as it violated the basic structure for exclusion of judicial review and being inconsistent with Articles 14 and 19 respectively.

Critical Analysis

The Supreme Court deserves a lot of plaudits for this judgement as it is a testament to the Apex Court upholding the sanctity of the Constitution. The facets that the Court upheld have not only been fruitful to many litigants but also for the whole country. The remedy to approach courts in case of any violation of fundamental rights still stands. All issues the Supreme Court had adjudicated upon would not have reached those conclusions if not for Minerva Mills

Though Minerva Mills is to be celebrated for more than its contribution to constitutional jurisprudence, there is one aspect that the author does not agree with. Article 32 is for the redressal of issues based on the violation of fundamental rights. However, Article 32 does not grant the Supreme Court the unfettered right to pronounce its verdict on every matter. There are certain limitations. One is that the Court will not decide upon hypothetical questions of law, which was contended by the respondents but brushed aside by the Court. But only Justice PN Bhagwati took note of this anomaly and held that the objection should have sustained regarding Article 31C as the petitioners were not aggrieved by it. 

Conclusion

The significant achievement of Minerva Mills is that the Hon’ble Supreme Court identified the threat to its existence and laid down two pertinent observations in unambiguous terms. Firstly, it reiterated that the judiciary is an integral and indispensable part of the basic structure doctrine. Secondly, Fundamental Rights and Directive Principles of State Policy are on equal footing. By the first observation, it is clear that the Court’s jurisdiction cannot be simply curtailed to make Article 32 redundant. The second observation makes it abundantly clear that the fundamental rights cannot stand abrogated under the guise of Directive Principles of State Policy. This decision has far-reaching consequences. The Government could make laws, and under the guise of Directive Principles of State Policy, they could not be amenable to judicial review. Hence, people will have to experience the resulting implications, which would have resulted in the fundamental rights merely being written words on a paper, having no value. 

Author: Tejas Kandalgaonkar from MNLU, Mumbai.

Editor: Astha Garg, Junior Editor, Lexlife India

Constitutional Law: Minerva Mills Case

Reading time: 8-10 minutes.

The case of Minerva Mills v. Union of India (“Minerva Mills”) is one of the finest examples exhibiting the advantages of the system of checks and balances. The vigil of the Apex Court negated the agenda of the Parliament to become the supreme law-making body. The genesis of the case lies in the Parliament enacting the Constitution (42nd Amendment) Act, 1976 (“the Act”), which gave vast powers to the Parliament to enact laws by abrogating the fundamental rights and making them subservient to the Directive Principles of State Policy. In addition to that, the scope of judicial review was also curtailed. 

The Parliament’s power to amend the Constitution had been in dispute for a long time. Before Minerva Mills, the Supreme Court in I.C. Golaknath v. State of Punjab held that the Parliament could not amend the Fundamental Rights, which was later overruled in Kesavananda Bharati v. State of Kerala (“Kesavananda Bharati”). The law laid in Keshavananda Bharati was that the Parliament could amend the Constitution subject to the limitation that it did not alter or destroy its basic structure. 

The dispute arose when the Government decided to hand over the administration of Minerva Mills to the National Textile Corporation Limited under the provisions of the Sick Textile Undertakings (Nationalisation) Act, 1974. The takeover was the result of a report filed by a committee appointed by the Government under Section 15 of the Industries (Development and Regulation) Act, 1951 to investigate the company’s affairs. The Committee opined that there had been or there existed a chance of a decrease in volume of production. This aggrieved the shareholders of Minerva Mills, who filed a writ petition before the Hon’ble Supreme Court under Article 32 of the Constitution. Among challenges to other provisions, the Petitioners challenged the constitutional validity of the Act which is the bone of contention in the present case.

At the heart of the dispute in Minerva Mills were Sections 4 and 55 of the Act. The Hon’ble Court had to decide whether Sections 4 and 55 of the Act violated the limitation laid down in Keshavananda Bharati, resulting in the violation of the basic structure of the Constitution. Section 4 of the Act amended Article 31C, and declared all laws made in pursuance of Directive Principles of State Policy, which are inconsistent with Articles 14, 19 and 31 will not be void nor can be challenged before a Court of law. Further, Section 55, introduced clauses 4 and 5 to Article 368. Clause 5 conferred upon the Parliament the power to bring in amendments that could alter or destroy the Constitution’s identity whereas clause 4 curtailed judicial review of amendments altogether.

By a majority of four judges and the lone dissent of Justice PN Bhagwati, The Hon’ble Supreme Court declared Sections 4 and 55 to be unconstitutional to the extent that they violated the basic structure doctrine. Justice Chandrachud, writing on behalf of himself and three others, has given a reasoned decision as to why the provisions failed to stand the test of constitutionality. Firstly, the Court expounded the nature of Clause 5, which it determined demolished the very basis of democracy. Further, under Article 368 only limited amending power is provided, which cannot be the touchstone to enlarge the amending power. Clause 4 deprived the Courts with the power of judicial review and hence it was deemed unconstitutional as well. Article 31C was deemed void as it violated the basic structure for exclusion of judicial review and being inconsistent with Articles 14 and 19 respectively.

Critical Analysis

The Supreme Court deserves a lot of plaudits for this judgement as it is a testament to the Apex Court upholding the sanctity of the Constitution. The facets that the Court upheld have not only been fruitful to many litigants but also for the whole country. The remedy to approach courts in case of any violation of fundamental rights still stands. All issues the Supreme Court had adjudicated upon would not have reached those conclusions if not for Minerva Mills

Though Minerva Mills is to be celebrated for more than its contribution to constitutional jurisprudence, there is one aspect that the author does not agree with. Article 32 is for the redressal of issues based on the violation of fundamental rights. However, Article 32 does not grant the Supreme Court the unfettered right to pronounce its verdict on every matter. There are certain limitations. One is that the Court will not decide upon hypothetical questions of law, which was contended by the respondents but brushed aside by the Court. But only Justice PN Bhagwati took note of this anomaly and held that the objection should have sustained regarding Article 31C as the petitioners were not aggrieved by it. 

Conclusion

The significant achievement of Minerva Mills is that the Hon’ble Supreme Court identified the threat to its existence and laid down two pertinent observations in unambiguous terms. Firstly, it reiterated that the judiciary is an integral and indispensable part of the basic structure doctrine. Secondly, Fundamental Rights and Directive Principles of State Policy are on equal footing. By the first observation, it is clear that the Court’s jurisdiction cannot be simply curtailed to make Article 32 redundant. The second observation makes it abundantly clear that the fundamental rights cannot stand abrogated under the guise of Directive Principles of State Policy. This decision has far-reaching consequences. The Government could make laws, and under the guise of Directive Principles of State Policy, they could not be amenable to judicial review. Hence, people will have to experience the resulting implications, which would have resulted in the fundamental rights merely being written words on a paper, having no value. 

Author: Sreyas T. Manoj from The National University of Advanced Legal Studies, Kochi.

Editor: Astha Garg, Junior Editor, Lexlife India

Constitutional Law: Hari Bhanji Case

Reading time: 8-10 minutes.

The present case of Secretary of State v. Hari Bhanji (1882) finds itself embedded in the intersection of Torts Law and Constitutional Law, meeting midway on the issue of state or government liability. In this case, a suit was instituted to reclaim the excess amount of excise duty charged by the State on the shipment of salt. The Madras High Court turned down the pleas of immunity made by the defendant and noted that there is no immunity given to the acts committed under the municipal law. The High Court also asserted that the immunity given to the East India Company shall be extended strictly to “acts of state”.

The facts of the given case are such that the respondents had bought a batch of salt in Bombay and sent it off to certain ports in Madras after paying the requisite excise duty as specified under the law in force at the time. However, while this shipment was in transit, the Customs and Excise Act of 1787, was amended, as a result of which, the rate of excise duty on salt was increased. Upon arrival at the port, the defendant merchant was directed to pay the difference. After many objections, the merchant made the payment unwillingly and under compulsion, only to obtain the possession of the batch of salt. Subsequently, he filed a suit for the recovery of the same. In this case, the Court held that the State will be as liable towards its subjects as any ordinary employer would be.

Provisions Involved

The provision that lies at the centre of this case was Section 65 of the Government of India Act, 1858. This section states that, “the Secretary of State in Council shall and may sue and be sued as well in India as in England by the Name of the Secretary of State in Council as a Body corporate.”

This section later became Section 32 of the Government of India Act, 1915, followed by becoming Section 176 of Government of India Act, 1935 which referred to the liability of the Dominion and provinces of India. After the enactment of the Constitution of Independent India, Article 300 was written down as its successor. 

Another central statute directly involved in the case is the Customs and Excise Act, 1787. By its passage, the import duty on salt was increased to 13 annas per maund.

Explanation of the Concept

The main concept that lies here is the concept of vicarious liability. This originates from an ancient Latin maxim, ‘rex non potest peccare’, which literally translates to “the King can do no wrong”. This maxim implies that the master cannot be held liable for the acts of his servant, even if they are committed in the course of his employment. It is the opposite of the doctrine of vicarious liability as we know it today.

Simply put, it refers to a situation where a person is held responsible for the actions or omissions of another. This is based on the principle of ‘qui facit per se per alium facit per se’, meaning “He who does an act through another is deemed in law to do it himself”.

The East India Company had the dual role of performing commercial functions and of exercising sovereign power as a representative of the British Crown. It was in the latter role that the East India Company claimed sovereign immunity based on the aforementioned Latin maxim.

Critical Analysis

Upon a careful study of pre-constitutional cases on the topic of the Government’s liability in Torts, we find the case of P. & O. Steam Navigation Co. v. Secretary of State to beone of the most important and landmark cases on this issue. The Supreme Court of Calcutta in this case held that if any action was done in the exercise of sovereign functions then the State or the East India Company shall not be held liable for the same. The Court went on to classify the acts of the Secretary of State and draw a distinction between the two, namely, sovereign and non-sovereign acts. The Secretary was held liable for acts committed under the non-sovereign category and obtained immunity for acts done under the sovereign category.

Following the Peninsular case, the other courts took two opposing views on the topic. In the case of Nobin Chander Dey, it was held that in consideration of the acts done in the course of sovereign functions by the Company, no suit could be instituted against them.  While in the Hari Bhanji case, the Court gave answers to two pertinent questions:

  1. Whether the defendant was a sovereign entity and hence, could not be sued in his own courts without his consent
  2. In relation to the charter of the Act in question of which the relief was claimed.

On the aforementioned questions, the Court made it clear that the immunity and relief given to the Crown in England does not extend to the East India Company in India. Moreover, all the Charter Acts have recognized the Company’s right and liability to sue and to be sued. Additionally, the jurisdiction of the civil courts cannot be ousted by the simple fact that the contended action was done by sovereign powers and is an act which could not have been committed by a private person or body.

One of the main arguments advanced was that a sovereign cannot be sued in his own courts without express consent and that a sovereign is not amenable to the jurisdiction of a municipal court on the issue of ‘acts of state’.

Examples

The view taken in the Hari Bhanji case was supported in the cases of Ross v. Secretary of State and Kishan Chand v. The Secretary Union of India. On similar lines, in Secretary of State vs. Cockraft, the ruling was that “if the State derived benefit from the exercise of sovereign powers, then it would be held liable”.

There are numerous examples of vicarious liability in our daily lives. Some of them are as follows:

  1. Liability of a principal for tort committed by his agent
  2. Liability of a master for a tort by his servant
  3. Liability of a partner for the tort of his partner

Conclusion

It is matter of irony that our country continues to practice of the English maxim, ‘the King can do no wrong’, in order to gain immunity for any tort from the exercise of ‘sovereign power’. This principle was criticised in many cases as it was against justice, equity, and good conscience. The maxim was abolished in the United Kingdom, by way of the Crown Proceeding Act of 1947. Thereby holding, everyone (including the Crown) equal before law, with no one entity being superior than another. We need to adopt a similar stance and move beyond the roots of our colonial past.

The recommendations made in the first Report of the Law Commission were not implemented. And a Bill entitled “The Government (Liability in Tort) Bill” was introduced in the Lok Sabha in 1967 and again in 1969 but lapsed both times.

In the course of many diverse judicial decisions, confusion still persists and the awarding of compensation is still left to the subjective views of the judges. Due to delay and incertitude, the government and authorities grow complacent and continue to escape liability under tort. Understandably, it is inappropriate for the government to continue to raise the plea of ‘sovereign power’ and rely on old decisions of ‘sovereign immunity’.

Author: Nikita Prakash from Symbiosis Law School, Pune.

Editor: Astha Garg, Junior Editor, Lexlife India

Constitutional Law: AK Roy Case

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Reading time: 8-10 minutes

Judiciary has always been a tool to strike a balance between the power exercised by the authority and individual liberty. It highlights the boundaries for the desired efficacy and smooth functioning. However, when I talk about boundaries I am not only drawing the attention towards the boundary between the laws and the fundamental rights, but also the boundary between fellow organs of the Government, vis-à-vis separation of power. Through an exhaustive discussion in A.K. Roy, Etc. v. Union Of India, the Hon’ble Supreme Court has established that nothing is outside the scope of judicial review. Examining the Constitutional validity of the National Security Act, 1980 (hereinafter referred to as “NSA”) and ordinance making power of the President, the Court established, without an iota of doubt, that it is excellent to have a giant’s strength but it is tyrannical to use it as a giant (Measure for Measure, Shakespeare) and therefore, the Constitution has chalked out various checks and balances to ensure a reasonable exercise of power.

In this article, the author shall humbly discuss and analyse the stance taken by the Hon’ble Supreme Court in the A.K. Roy case in light of several relevant provisions and case laws. The first part talks about the primary issue involved in the case, the second part focuses on the other considerations taken into account by the Court and eventually, the analysis of the author has been submitted.

The Debate on Ordinance and Legislative Power of the Executive

The case came into existence with the detention of A.K. Roy, a member of the Parliament, under the provisions of NSA for indulging in activities prejudicial to public order. The primary issues before the Court were whether the power to issue an ordinance is a legislative power or the executive power of the President? And, whether ordinance is a law within the meaning of Article 21? Let us look into these issues and discuss the stance of the Court.

  • Ordinance is the legislative power of the President

The Court held that by virtue of Article 123 and 213 of the Constitution of India, both the President and the Governor can exercise their legislative power in certain extraordinary circumstances. Article 123(2) reads that the ordinance “shall have the same force and effect as an Act of Parliament”. It was also highlighted that the growth in the legislative power of the executive is to ensure flexibility and expedition and when the time cannot afford to follow the procedure, such powers of the executive have do the needful. The Court went on to clarifying that unlike the American Constitution, there is no strict separation of power between the legislature and the executive and the organs are expected to harmoniously work together therefore, the lawmakers were right in bestowing these legislative powers upon the President.

  • Ordinance is a law and subject to the limitations prescribed by Article 21 –

Contentions were raised to the effect that an ordinance cannot establish a procedure owing to its transient nature and that it is not a ‘law’ as per the requirements of Article 21 of the Constitution. However, the Court held that the limited duration of an ordinance does not oust it from being a law unless the procedure prescribed by it is vague or unreasonable. Further, it was established that Article 13(3) and Article 367(2) educate us that the Constitution does not discriminate between a law and an ordinance promulgated by the President and the provision includes, inter alia, an ordinance when it talks about ‘law’ and hence an ordinance is subjected to all the restrictions and limitation laid down under Article 21.

Preventive Detention Law and Delayed Implementation of the Constitutional Amendment

The Court tip-toed around the issue of the validity of preventive detention under the vague provisions of the NSA with respect to Section 3 of the Act and concluded that in order to safeguard the interests and security of the nation, individual liberty can be curtailed to an extent given that the provisions lay down a well-reasoned and fair procedure keeping in mind the cardinal principle of natural justice.

It also looked into the non-implementation of the provisions of the 44th Constitutional Amendment Act (hereby the Amendment Act). It was argued that the Central Government delayed the implementation without any sufficient cause and the Court was requested to issue a mandamus asking the Government to bring Section 3 of the Amendment Act into force with immediate effect. However, avoiding any judicial interference and talking about the delegation of power to the Central Government by the Parliament under Section 1(2) of the Amendment Act, the Court refuted all the contentions, reiterated that the executive is not independent of, but responsible to the legislature and held that since the Parliament confers its powers on the Executive to bring the Amendment in force, the power to hold the executive liable in case of any unreasonable delay also lies with the Parliament.

Author’s Analysis

The judgement comprises of some robust arguments made by revered learned counsels and a detailed approach of the Hon’ble Court towards all the contentions. The Court maintained its reservations respecting the basic structure and the boundaries demarcated by it. However, it established that this separation of power between the three organs of the Constitution has to be compatible with the need of the hour, meaning thereby, when the circumstances demand an intersection between the powers, it is permissible for the organs to delegate their powers to an outside authority to keep the machinery running without any friction. Hence, we can rightly say that no organ is an island as the decision of the Court clearly proves that the organs cannot function in isolation, for instance; the satisfaction of the President is within the scope of judicial scrutiny whereas the actions of Central Government are subject to the perusal of the Parliament, and as a consequence of this the overlap is inevitable. Although, since the interference of the organs in to each other’s realm has to be limited to maintain the desired exclusivity and supremacy in their prescribed fields, the Court held that though the President’s decision is not immune to judicial review but this can be done only on ‘substantial grounds’ and not on every slight inconvenience. 

However, the author submits that the judgement seems to lack an extensive discussion on the scope and limit of the judicial review with respect to the satisfaction of the President and what constitutes a ‘substantial ground’ also remains unanswered.

Conclusion

The power of ordinance has always been the bone of contention and has seen multiple clashes over its exercise. Therefore, in the present case the Court indulged in holding the Executive liable and responsible to the Legislature to ensure cooperation and gave a head-start to the debate around the immunity enjoyed by the ordinance making power of the President. All things considered, the Court played a major role in reminding the legislature of its forgotten powers, to reprimand the Executive for over-stepping its bounds, and also, in confronting the Executive with its obligations towards the Legislature.

Author: Ananya Bajpai from West Bengal National University of Juridical Sciences (NUJS), Kolkata.

Editor: Astha Garg, Junior Editor, Lexlife India

Constitutional Law: Amendability of Constitution

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Reading time: 8-10 minutes.

A brief study into political societies throughout the human civilization will bring forth the existence of an order based on the shared values of the society. Such cherished values have been presented in various forms, the modern avatar being a written piece of text called Constitution. India, after centuries of struggle, gained independence from the tyrannical British Empire in 1947 and started on its journey of being an independent nation.

Early on the journey was fraught with disturbances and uncertainties and doomsday predictions were the norm of the day. Amidst this chaos, the Indian population (albeit indirectly) chose for itself an eminent group of individuals and tasked them with the humongous task of bringing in force a Constitution for a country as diverse and fragmented as India. This group of individuals were collectively called the Constituent Assembly and after a long-drawn process which continued for almost three years they had put in place the lengthiest Constitution of the world.

While the eminence and brilliance of the Constitution makers is undeniable, they couldn’t have been entrusted with the responsibility to make an instrument which can serve through aeons of time. Thus, to realize the goals and aspirations of the republic through transient times, it was necessary to provide for an amendment mechanism, which could be used to effect changes to the supreme text itself.

The amendment mechanism was provided for by the Constitution makers by way of Article 368, which laid down the procedure to be undertaken by the Union Parliament to effect changes in the Constitution’s text. However, right from its genesis, the amending power bestowed upon the Legislature has been subjected to debates and has become an ongoing tussle between the two organs of the government- The Legislature and The Judiciary.

Pre-Kesavananda Bharati

In just a brief period of our Constitutional history of 70 years, the Constitution has been amended over 100 times. While India still didn’t have an elected government, a Constitutional Amendment was passed in 1951 as a response to the challenges emerging from the government’s socialist policies of land ceiling and redistribution so as to secure public welfare. The other major issues with which the first amendment dealt were freedom of speech and reservations. The first Constitutional amendment found its way to the Supreme Court where insertion of Article 31A and 31B were challenged. Both the Articles coupled with the entry of the Ninth Schedule, made certain laws inscrutable with respect to the Fundamental Rights. The Apex Court was called upon to decide the status and Constitutionality of these Constitutional Amendments. The Court, basing its reasoning on the distinction between legislative and constituent power held that Constitutional Amendments are an exercise of constituent power and is thus not covered by the definition of law under Article 13(2). By holding Constitutional Amendments distinct from law, the Court made them uncriticizable to any of the ‘sacred’ fundamental rights. By not subjecting amendments to the most sanctimonious part of the Constitution, the Court opened the floodgates of providing the parliament with unbridled and unrestricted amending powers.

The next major Constitutional amendment challenge in the Supreme Court came up in the case of Sajjan Singh which challenged the 17th Amendment. Though the case didn’t change the legal landscape in relation to amendments, it brought up some important points for consideration in the minority opinions of Hidayatullah J. and Mudholkar J. Interestingly, the first reference to a basic structure of the Indian Constitution came in the opinion of Mudholkar J., much ahead of the landmark case of Kesavananda Bharti. The reservation and discomforts posed as interesting questions by the minority judges, were answered by an 11-judge bench decision of the Supreme Court in Golak Nath, where a narrow majority removed the distinction between constituent and legislative power and subjected all the Constitutional amendments to the test prescribed under Article 13(2). However, the solution in Golak Nath was simple, but unconvincing. The obvious result of the judgement was a counter-amendment by the Indian Parliament which effectively overruled the courts’ opinion. The 24th and 25th Amendments were challenged in the case of Kesavananda Bharti, which ushered in a new era of Indian Constitutional Jurisprudence.

Post-Kesavananda Bharati

The largest bench of the Supreme Court to have ever existed, decided the fate of Constitutional Amendment in a 7:6 majority. HR Khanna J’s opinion made the ultimate difference and changed the Constitutional landscape forever. The longest Indian judicial decision to have ever been authored put in place substantial limitations to Parliament’s amending powers. It re-recognised the difference between Constitutional law and ordinary legislation and rejected the reasoning of Supreme Court in Golak Nath. The court placed reliance on Article 368 itself and found inherent limitation to amending powers. The court distinguished between ‘to what extent an Act can be called an amended Act’ and ‘at what stage it traversed into the realm of enacting a new Constitution in itself’. The judges realizing the limitations in previously decided cases opted for an open-ended solution and birthed a giant in the form of “The Basic Structure Doctrine”. The Basic Structure was merely an illustrative list which listed certain ‘sacred’ areas, ideas or themes of the Indian Constitution which were meant to be unamendable throughout the life of the Constitution. Thus, the court provided the parliament with the power to amend each and every part of the Constitution including the Fundamental Rights, it made broad restrictions to the exercise of its power.

The Journey Forward

The Constitutional journey of Independent India has been an interesting one and is still unfolding every day in the halls of parliament and chambers of justice. From an initial over-emphasis on textual interpretations and positivist pronouncements the Apex Court has made a long journey by deciding cases on overtly naturalist principles. A recent example of such a liberal approach could be seen in the 9-judge bench decision holding right to privacy as a fundamental right under the text of Article 21. The Puttaswamy judgement would have been unthinkable to the eminent judges of the yester-years, which is a tale of how far the Indian jurisprudence has evolved. Many a times, Constitutional Amendments have come up to challenge in the Supreme Court after the momentous ruling in Kesavananda Bharati. But the Basic Structure Doctrine has stood the test of time and has ensured safeguarding of the Constitution and the people which “gave to themselves” the Constitution in hope of undoing the pains and injustices of centuries of tyrannical oppression.

An emerging and ever-developing challenge in the realm of Constitutional law has been to protect the Constitution from the very institutions it has legitimised. The practice of seeing an elected government as an oppressor has been a long-standing practice and it has invited severe criticism and scrutiny over the year, and rightly so. However, the attitude of seeing the judiciary form rose-tinted glasses should also undergo necessary adjustments and its powers should also be constrained and checked, for an overambitious judiciary can be as detrimental to the people’s Constitution as an elected body of representatives. In the end, the Constitution, which was given by the people to themselves, should remain so, and any attempts of co-opting it by governmental institutions should be resisted.

Author: Anshum Agarwal from West Bengal National University of Juridical Sciences (NUJS), Kolkata.

Editor: Astha Garg, Junior Editor, Lexlife India

Constitutional Law: Norms of Constitutional Interpretation

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Reading time: 8-10 minutes.

Constitution is a body of law that determines the roles, structures, powers and functions of the executive, the legislative and the judiciary and also includes the basic rights of the citizens of our country. Not all the nations have a written Constitution. But it is essential to know about it. Constitution is the primary source for many other laws. Constitutional law is a main paper for every law and research student. The Constitution of India came into force on January 26, 1950. Each word in the Constitution is fairly stated and are not that easy to change. But laws enacted by legislature now-a-days are dynamic, and they reflect the current state of the Constitution. To check whether the new laws are consistent with the basic structure of the Constitution, many a times the Constitution is interpreted. In this article we’ll see some of the phases of Constitutional interpretation and in what are the ways it was interpreted in the past seven decades.

Explanation of the Concept

Constitutional interpretation is not like the usual interpretation process done for other statutes. It is defined as the process of creation of a set of rules and regulations which the citizens should abide by. The interpretations done by the Supreme Court of India can be explained by three phases. First phase includes “grammatical/literal interpretation” which can also be stated as textualism. Meaning thereby, reading each word and correlating it with the Constitution.

Second phase includes the “eclectic or conceptual approach” which focuses not only on the text of the Constitution but also the concepts and themes incorporated in it in a broader way.  These two phases act as the product of the third phase known as “careful reasoning”. In the third phase it gives reasons by sitting in two or three Judge benches. Finally, the Court decides cases on self-conceptions which results in the adoption of various internally interpretive approaches and often produce incoherent Constitutional jurisprudence.

Textualism

Supreme Court has taken up the idea of textualist approach to mainly focus on the literal meaning of the words used in the Constitution. In the earlier days, the Court relied explicitly on the views and thoughts of the framers/draftsmen of the Constitution, by relying on Constitutional Assembly Debates. But later the Supreme Court consciously avoided relying too much on the thoughts of the framers. This kind of interpretation was familiar to British legal training. The Court considered this phase of interpretation as a virtue in itself.

Conceptual approach

In the second phase, the Supreme Court started considering other methods of interpretations. Though textualism continued to appeal to the Judges, “structuralism” quickly picked up, and occasionally supplemented other methods of interpretation like ethical approach. Textualist arguments hold sway, both for the Judges who subscribed to the ‘basic structure’ notion and for those who held that there were no substantive limitations on Parliament’s amending power.

Philosophical interpretation

In the third phase, the Supreme Court turned towards the Philosophical approach. This approach involved primarily two features. First, the changing structure of the Court, which may be taken as eight Judges grew into thirty-one Judges. Even though Article 145(3) requires all substantial questions of law involving interpretation of the Constitution to be decided by Constitution benches, this requirement was ignored in practise. There appears to be a little suggestion on what questions can be considered as ‘substantial’.

Examples

In A.K. Gopalan v State of Madras the Court was called upon to interpret the Fundamental rights. It was a Habeas Corpus petition filed by an Indian communist party leader. He contended the Court that the legislation was inconsistent with the Articles 19, 21 and 22 of the Constitution. The Supreme Court was faced with two interpretive questions to be answered. The first question before the Apex Court was the interpretation of the phrase”procedure established by law” as stated under Article 21, which states that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. The second question before the Court was “what is the inter-relationship between article 19, 21 and 22 of the Constitution”, which appear to be on similar grounds.

In answering the first question, the Apex Court found various evidences to suggesr that the framers of the Constitution had deliberately adopted the phrase ‘Procedure established by law’ instead of ‘due process of law’ in order to avoid American Lochner-era experience. For the second question, the Court deciphered that Articles 19,21 and 22 cover entirely different subject matter and are to be read as separate codes.

In Kesavananda Bharati v State of Kerala the Apex Court demonstrated a shift in interpretive methodology and was considered as a watershed moment in India’s Constitutional history. In this case many of the arguments were textualistic. But the major issue was on the basis of conceptual approach. From this case the ethical and historical interpretive approaches also entered Supreme Court Judgements.

In the case of Chief Election Commissioner v Jan Chaukidar, an NGO disclaimed that since prisoners are deprived of the right to vote, they should not be considered as electors. It cited the Patna High Court’s Judgement where the Court had held that a person under legal custody of the Police will neither be a voter nor be an elector. This was a denial of right to vote. Judgements like these result from a lack of emphasis on passing reasoned orders and application of judicial mind.

Provisions Involved

The following provisions of the Constitution indicate the role assigned by the Constitution to the Supreme Court, for the purpose of interpreting the Constitution itself:

  • According to Article 132 of the Constitution – “an appeal shall lie to the Supreme Court from any Judgement decree or final order of a High Court in the territory of India, whether a Civil, Criminal or other proceeding, if the High Court certifies under article 134-A that the case involves a substantial question of law as to interpretation of the Constitution”.
  • According to Article 141the law declared by the Supreme Court shall be binding on all Courts within the territory of India. Under the Constitution, an individual has access to the Supreme Court for interpretation of the Constitution, and the interpretation given by the Supreme Court is binding on all”.

Critical Analysis

Constitutional interpretation has an intricate relationship with Constitutional change. Mostly, interpretations teach us how easy it is to amend a Constitution. Most provisions of the Constitutions can be amended by two-third majority in Parliament. The structure and composition of a Court have an important bearing on its interpretive approach. The aforementioned methods of interpretation are in no manner exhaustive. There are several other mechanisms and techniques used for interpretation of the Constitution besides these methods of interpretation. It is explicitly stated in our Constitution that it can be interpreted at times of need by the Articles 132 and 141. The majority Judgement in cases of Kesavananda Bharati v State of Kerala and Minerva Mills Ltd strongly relied upon the preamble in reaching the conclusion that power of amendment conferred by Article 368 was limited and did not enable parliament to alter the basic structure or framework of the Constitution.

Conclusion

In many of the cases Indian Supreme Court’s approach to Constitutional interpretation have induced global interpretive trends. There are many Judgements of the Supreme Court with many more interpretive techniques. Tracking the developing world interpretations also developed from textualism to various techniques and approaches. The exponential growth of judgments interpreting the Constitution has led to increasingly precedent-laden and doctrine-heavy decisions, that sometimes lose sight of the document that is being interpreted.

Author: Subha Shree from Tamil Nadu National Law University

Editor: Astha Garg, Junior Editor, Lexlife India

Constitutional Law: Effect of Unconstitutionality of a Statute

Reading time: 8-10 minutes.

The Constitution provides the citizens with the fundamental rights and also incorporates safeguards for them against the acts of the state. Without this protection the fundamental rights would be rendered toothless and these rights would be practically ineffectual.

Thus, our Constitution makers incorporated Article 13 to check the law-making power of the state and to render any ordinance, order, bye law, rule, regulation, notification, custom or usages infringing the fundamental rights to be void. However, the Supreme Court held in its judgment in AK Gopalan v. State of Madras that even without this Article the Courts have the right to declare any law that transgresses the limits of fundamental rights to be invalid and that the Article is a result of abundant caution on part of the drafting committee.

Explanation

Article 13 does not have a retrospective effect, thus the statutes existing before the commencement of the Constitution were valid and only became void on this supervening event of the Constitution coming into effect. The doctrine of eclipse as invoked in the case of Bhikaji v. State of Madhya Pradesh holds that this shadow casted renders the statute void in the post-Constitutional period but remains valid and enforceable for the acts committed before its enforcement. However, any law enacted post-Constitution would be void-ab-initio and considered still born whether wholly or partially as to any rights or liabilities created by it.

The Supreme Court in the case of ML Kamra v New India Assurance held that a presumption lies in the Constitutionality of every legislation. Any law may be declared unconstitutional by the competent Court if any of the following conditions is satisfied.

  • The first situation in which the law would be declared void if it contravenes any of the fundamental rights granted under Part III of the Constitution.
  • Secondly, if a legislation is formed that exercises any power not present with the legislature passing it as provided under the Seventh Schedule of the Constitution or seeks to operate beyond the boundaries of the state passing it would be invalid to that extent as held in the case of State of Bombay v. Bombay Education Society, it is liable to be held unconstitutional.
  • The third condition under which a law is to be declared unconstitutional is when the legislature has delegated essential functions to some other body. The Apex Court has held in the case of Atibari Tea Co. v. State of Assam that such excess delegation renders the Act liable to be struck down as unconstitutional.
  • Fourthly, any law is to be held invalid to the extent of its contravention of any mandatory provision of the Constitution, say Article 301.

Under any of these situations, the Courts exercise the Doctrine of Severability to determine if the unconstitutional part of the Act can be severed from the rest of the Act, so that the valid part can independently survive, then only the invalid parts are to be declared unconstitutional and not the whole statute as observed in the case of Mahendra v. State of Uttar Pradesh. The Court formulated three principles governing severability in the case of R.M.D. Chamarbaugwalla v. Union of India. The first principle determines if the legislature had omitted the invalid part if it had known it to be unconstitutional and passed the valid part, this test is satisfied. The second principle holds that when the invalid and the valid parts are so inextricably mixed up that they cannot be separated then the whole statute has to be declared unconstitutional. The third principle states that if the valid part though separate and distinct but is part of a single scheme intended to be operated as a whole, even then the whole Act would be held void.

Examples

In the case of Shreya Singhal v. Union of India, the Supreme Court declared Section 66A of the Information Technology Act, 2000 to be unconstitutional. The section was found to be an unreasonable restriction on freedom of speech and expression provided under Article 19(1) of the Constitution and was struck down in 2015.

The Supreme Court in 2018 declared Section 377 of the Indian Penal Code (IPC) to be unconstitutional in the case of Navtej Singh Johar v. Union of India. The Court struck down the section as regards consensual acts of homosexuality as being violative of Articles 14 and 21. The invalid part of criminalizing consensual homosexual acts among adults was severable from the other part which was left valid and enforceable.

In the recent case of Joseph Shine v. Union of India, the Apex Court struck down Section 497 of IPC and Section 198(2) of CrPC that penalised adultery as being violative of right to privacy and dignity of the wife. The provision infringed rights guaranteed under Article 14, 15(1) and 21 of the Constitution.

Provisions Involved

Article 245 of the Constitution gives the Parliament the power to make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State.

Article 13 provides that Laws inconsistent with or in derogation of the fundamental rights shall be void to the extent of such contravention. It also states that law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages; laws in force includes laws passed or made by Legislature or other competent authority. Thus, this Article is a restriction to the Parliament’s power under Article 245.

Critical Analysis

The presumption in favour of Constitutionality makes it very challenging to show how the statute violates a person’s fundamental rights. Even when such a violation is proved, the Courts tend to strike off the invalid statute only as a last resort and try to uphold its Constitutionality by interpreting it in a way compatible with one’s rights. If this isn’t possible, an attempt is made to sever the invalid part and if even that isn’t possible then the act is declared void as a whole.

Another problem related to an invalid law is that it may be continued to be used even after being struck down as observed even years after the Apex Court declared section 66A, Information Technology Act to be unconstitutional. Cases are still being registered under this section. Recently, Allahabad High Court refused to quash proceedings against the accused under this section in the case of Shiv Kumar v. State of UP. The continuing enforcement of the void provision or act leads to unreasonable harassment and moreover dilutes the Constitutional power under Article 13.

Conclusion

The rights granted by the Constitution are not just directive and can be enforced even against the state. Article 13 carries this power and keeps the powers of legislature and executive under check.  The Supreme Court has since independence struck down hundreds of statutes and overruled its own decisions reflecting the changing standards with time. Such invalidation of unconstitutional laws is crucial for the personal freedom of people and its protection from the state as the governments may change but the fundamental rights of people must remain.

Author: Ashraya Singh from School of law, NMIMS, Mumbai.

Editor: Astha Garg, Junior Editor, Lexlife India

Constitutional Law: Judicial Creativity in India

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Reading time: 8-10 minutes.

Judicial creativity in India has been a very integral part of the justice system and has been a cornerstone is providing a modern outlook to the judiciary. Judges have been not only applying the law to the letter but also moulding it to suit the present time and situation. Judicial creativity is very important to provide true justice to the citizens of the country, as many times the legislation is not clear on certain aspects of the law or is silent on them. It is in these scenarios that the creativity of the judge comes into the picture, the judge can apply the law in a way which is truly just and provides a better resolution to the victims. This becomes even more important in the case of The Constitution as it is not only the law of the land but a 70-year-old document at this point.

Explanation of the concept

Judicial creativity can be described as the fluid part of the law, as a layman we understand law to be the rules and regulations made by the government. The problem comes when enough time has passed that those rules seem archaic and now do not seem relevant, it is here that the judicial creativity comes into the picture. Judges using their wisdom and innate sense of justice give meaning to the letter of the law that is relevant to the time and more importantly is relevant to the facts of the case.

Examples of Judicial Creativity in Constitutional Law and the Provisions Involved

In India two major landmarks in judicial creativity were when the basic structure doctrine was introduced in Kesavananda Bharati v. State of Kerala and when the concept of judicial review was upheld in I.R. Coelho v. State of Tamil Nadu. In Kesavananda Bharati the judges recognized that there are certain basic parts of The Constitution that cannot be changed or amended as they form the core of The Constitution. This was named the “basic structure” of The Constitution.

In I.R. Coelho the judges at the time saw the tyranny caused as a result of Schedule 9 of The Constitution being kept out of the purview of judicial review and thus over turned the previous judgement and held that all laws placed under Schedule 9 are within the purview of judicial review.

Critical Analysis

The above stated case laws are a great examples for understanding the concept of judicial creativity. In Kesavananda Bharati the courts used their creativity to make sure the fundamentals of the constitution remain unchanged and hold the true essence of a democracy by making a basic structure doctrine. This doctrine encapsulated the essential elements of our constitution like the fundamental rights, judicial review etc. and the Courts held that the basic structure of the constitution cannot be changed and any law passed by the legislature will have to abide by and be in consonance with this basic structure. This ensured that the rights of the people cannot be violated by any legislation not only in the present but in the times to come as well.

In I.R. Coelho, the law on paper stated that laws under Schedule 9 were outside the purview of judicial review. The judges however used their understanding of the law and their innate sense of justice to recognize that this was in violation of the basic structure of The Constitution and thus could not be held valid.

Conclusion

Judicial creativity in constitutional law has been widely applied in India which helps in providing better justice to the citizens of the country however, there remains scope for improvement. Time and again we see cases where the law is applied but justice isn’t provided as just reading the law to the letter is not the solution. There remain a large number of cases where our courts, especially at the lower levels could provide better solutions by applying the law to the particular facts and moulding it to provide a better solution.

Author: Siddhant Singh from Symbiosis Law School, Pune.

Editor: Astha Garg, Junior Editor, Lexlife India