Law of Adultery: Recent Development

Reading time : 10 minutes

• INTRODUCTION / CONCEPT OF ADULTERY

Adultery is described as a married person’s consensual sexual activity with a partner other than his or her spouse. In various states and laws, the legal definition of adultery varies. Adultery is a serious crime in India and hence there are provisions relating to the Indian Penal Code of Adultery, 1860. Adultery is described by Section 497 as:

“Anyone who, without the permission or connivance of that man, has sexual intercourse with a person who is and whom he knows, or who has cause to assume to be the wife of another man, such sexual intercourse does not contribute to the crime of rape, is guilty of the offence of adultery and shall be punishable with imprisonment of either description for a term of up to five years or with a fine or witness”.

It is necessary to create an institution which, from the very beginning, does not seek to maintain the sanctity of marriage, but seeks to protect the institution’s structure.

It was asserted in the case of “V. Revathi v. Union of India” that the man was a seducer, not a feminist. It was essentially claimed that Section 497 would not include the wife with the right to sue the husband who committed adultery with another wife. In its attempt to imprison only the ‘outsiders’ of marriage, the above-mentioned statute hits and the group often claims that it punishes the stranger who enters into a marital home and threatens the sacredness of marriage.

In India, IPC Section 497 has a history of 150 years of colonial period and, since its introduction, has been spinning into contentious and dubious controversies on many accounts, such as its approach to gender inequality, challenging the equity clause, representing cultural conflicts, and strong objections have been raised either for its preservation, modification, or full alteration and elimination from penal statues.

• HISTORY

In ancient India, events relating to husbands having secret relationships with other women and wives adultery after their husband were not uncommon. Adultery was never favored by Hinduism; it was founded as a mortal sin. Marriage is a pious and spiritual relationship, according to Hindus, and the institution of marriage should be maintained all the time.

Hindu law, for both religious and social purposes, is very stringent against adultery. The ancient Hindu law also separated married women’s partnerships from those who are single, and the former attracted harsher punishment. There were also numerous acts concerning different castes of women in the treatment of adultery. The Ancient Hindu Community was not free from the Adultery Hurdle. There were several tales of Hindu myths in which God himself indulged in adulterous thoughts and acts. For example, because of the mere accusation of adultery, Lord Rama banished his wife into the forest. Chapters on the crime of adultery is set down in the manuscript. The book discusses why cheating exists, how to secure it, and the ruthless retribution for those in such relationships who are caught. This sin was punished by death centuries ago, either by public stoning, hanging, or even worse.

Lord Macaulay did not approve adultery/infidelity as a clause of IPC when the Indian Penal Code was drafted, but in the second report the presidents disagreed with Macaulian’s views of adultery and put strong emphasis on his marks and concluded that committing adultery was a heinous crime and that the perpetrator must be responsible for punishment. Section 497 was then founded in the Indian Penal Code.

Section 497 of the Indian Penal Code was questioned shortly after the Constitution of India, on the basis that it generally goes against the spirit of equality inculcated in the Constitution. One of the most contentious cases was in 1951, when Mr Yusuf AbdulAziz, who was guilty of adultery, argued before the Bombay High Court that, in violation of Articles 14 and 15 of the Constitution, Section 497 of the IPC is unconstitutional because it acts arbitrarily between a man and a woman by making the former entirely responsible for adultery. Therefore, he claimed, there was sexism against women and against men purely on the grounds of sex.

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• SUPREME COURT’S TAKE ON ADULTERY

The Supreme Court declined to revisit its 2018 decision in which adultery was decriminalized.

A five-judge Review Bench led by India’s Chief Justice Sharad A. Bobde reinstated a Constitution Bench that had stripped adultery out of the penal statute book in September 2018.

“We thoroughly went through the petitions for review and forwarded the relevant documents. We do not find any ground, anyway, for the same entertainment. Accordingly, the appeal requests are dismissed,” the review court said in a short order recently.

A Constitution Bench headed by then Chief Justice Dipak Misra, who ruled that Section 497 (adultery) of the Indian Penal Code could not “command” married couples to keep true to each other for fear of penal punishment, was the original judgement.

If one cheats, two people may part, but Justice Misra had observed in his separate opinion that adding criminality to infidelity is going too far.

The court had argued that little evidence existed to support arguments that the elimination of adultery as a felony would lead to “chaos in sexual morality” or a rise in divorce.

Section 497 considers a married lady, held by the Bench, as a commodity for her husband.

Adultery is not a felony if the henpecked husband connives or consents to his wife’s extra-marital affair. “Article 497 considers a married woman as the “chattel” of her husband. The provision is a result of the dominant social superiority of men 150 years ago.

The husband is not the owner… Obituaries of these past perceptions should be written,” Misra, then chief justice, had observed.

The Bench also held that the CrPC’s Section 198(2), which allowed the cuckolded husband the exclusive right to sue the lover of his wife, was simply unconstitutional.

However, adultery can be a cause for civil remedies such as marital separation, the 2018 verdict had said.

• HOW LAW OF ADULTERY HAS CHANGED?

On 27 September 2018, the Supreme Court’s five-judge Constitution bench unanimously ruled to revoke Section 497 and that is no longer a crime in India.

Chief Justice Dipak Misra said when reading the decision, “it (adultery) cannot be a criminal offence,” but it can be a reason for civil problems such as divorce.

Joseph Shine, a non-resident of Keralite, filed public interest lawsuits pursuant to Article 32 of the Constitution in October 2017. The petition questioned the constitutionality of the crime of adultery read in Section 198(2) of the CrPC pursuant to Section 497 of the IPC. Furthermore, when her husband engaged in sexual relations with an unmarried woman, a married woman could not file a lawsuit under Section 497 IPC. This was in view of CrPC Section 198(2), which specified how a criminal would pursue charges under IPC Sections 497 and 498 for offences committed.

Intervenor Vimochana was represented by Advocate Jayna Kothari, CLPR’s Executive Director. In citing the universal right to privacy, as acknowledged by the Supreme Court in the case of Puttaswamy, she attacked the clause that categorized adultery as an offence. She argued that a facet of privacy which is protected under the Constitution is the right of intimate association.

Section 497 was illegal as the very reason for criminalizing adultery was the hypothesis that a wife is treated as the husband’s property and is forbidden to have affairs beyond marriage. However, in the case of the husband, the same limitations were not applicable. Section 497 breaches woman’s right to privacy and equality by discriminating and perpetrating gender toward married women.

On 27.09.2018, Section 497 of the Indian Penal Code was unanimously struck by the 5 Judge Bench of the Supreme Court as breaching Articles 14. In the Constitution, 15 & 21.

Also read: LAW RELATING TO RAPE AND SEXUAL CRIMES IN INDIA

• RECENT DEVELOPMENTS

The Court refers the case to CJI to issue necessary directions to shape the Bench of Five Judges

A petition filed by the Ministry of Defense (MoD) seeking to exclude armed forces personnel from the scope of a 2018 Constitution Bench judgement that decriminalized adultery was accepted by the Supreme Court on Wednesday.

Incidentally, one of the key arguments provided by the government for obtaining exemption is that “there will always be a concern in the minds of military personnel who operate far from their families under difficult circumstances about the family engaging in untoward activity.”

The court referred the case to India’s Chief Justice to issue appropriate orders to form a five-judge bench to clarify the effect on the armed forces of the 2018 judgement. In the petition, the government said that Army, Navy and Air Force staff were a’ distinct class.’ Unique laws, the Army Act, the Navy Act, and the Air Force Act were regulated by them.

Adultery contributed to an unbecoming conduct and a violation of discipline under certain three Acts. These special laws placed limitations on the human rights of workers working in a special situation involving the utmost discipline. The three laws were covered by Article 33 of the Constitution, which allowed the government to change the basic rights of the members of the armed forces. “Instability” was created by the 2018 verdict. It allowed the decision to cover a worker charged with pursuing an adulterous or illegal relationship.

“In cases of adultery, and where there is an allegation against the defendant, a claim may be made that we are circumventing the statute and what could not be achieved expressly by these Actions is done directly,” said the Ministry.

DISTINCT CLASS

It will break down the professionalism required for the execution of service, which is vital for national security. Regardless of the 2018 ruling, the rules of the Acts should be permitted to continue to control the workers as a “distinct class”.

It claimed that at the time, the court would not have been aware of the various situations in which the armed forces worked.

“It has to be remembered that the armed forces function in a world entirely different and distinct from individuals. Honor is a sine qua non of the department. Courage and commitment to service is part of the unwritten contract regulating the veterans of the armed forces, even at the cost of one’s life,” said the Center.

In addition, the government found out that, unlike Section 497, although they were convicted of a crime, the rules of the three Acts did not distinguish between a male and a woman. “De hors 497, if she ventures into an adulterous affair, the Army would pursue equally against such a woman subjected to the Act,” it said.

CIVIL REMEDY

“The government also pointed out that, despite striking down adultery as a crime, the court had held that it was “undoubtedly a religious wrong for the family and the partner. Furthermore, the decision acknowledged that there was a legal solution as adultery was a basis for divorce.

The 2018 judgement concluded that the statute cannot “command” married couples to stay faithful to each other by Section 497 IPC for fear of criminal punishment.

“If one cheats, two people may part, but attaching criminality to infidelity is going too far,” the judgement said in 2018.

Section 497 viewed a married woman as her husband’s product. If the cuckolded husband connived or consented to his wife’s extra-marital affair, cheating was not a felony. A married woman was considered in section 497 as the “chattel” of her husband. The clause was a reflection, the court had noted, of the social superiority of men prevailing 150 years earlier.

The owner is not the husband… It is appropriate to print obituaries of these past impressions,” it said

CONCLUSION

Polygamy has been illegal over the years, while monogamy has become widespread. Today, personal laws are fair, working, efficient and reliable. In marriage laws, the definition of adultery is much narrower in scope than the definition of adultery as a felony. It’s almost difficult to commit polygamy or have extramarital affairs without triggering legal litigation. Women in society have started to develop their own identities and are no longer regarded simply as the chattel of their husbands. In the criminal code, there are no grounds for maintaining adultery as a crime. Our personal rules are adequate for adultery as a legal wrong to be taken care of.

Author: Avnip Sharma

Editor: Kanishka Vaish, Editor, LexLife India.

Also read: EXPLAINED: DOCTRINE OF ELECTION UNDER PROPERTY LAW

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Termination of Teachers in Tripura: Legal Angle

Reading time: 8-10 minutes

Rule of law is one of the essential and underlying features of the Indian Constitution. It sets out the structure by which the power of the State is limited and not unfettered. Equality before the law and fairness in the application of the law are the two most important aspects of the rule of law. Article 14 and 16 of our Constitution ensures that the State shall treat all persons equally in matters of employment. Therefore, the selection process in any public institution should be fair and justified.

Appointments at public offices should not be guided by bribery or nepotism. As noted in the case of State of Punjab and Ors. vs. Brijeshwar Singh Chahal and Ors.,  “Appointments made arbitrarily, without any clear selection process or for political reasons, will be subject to judicial review and will be liable to be quashed.”It is in the public interest that the selection and appointment process should be transparent in order to make it foolproof. The present case in which the Apex Court confirmed the termination of 8,882 ad hoc teachers in Tripura is based on similar lines. The Division Bench of Hon’ble Supreme Court, in Ajoy Debbarma and others Versus State of Tripura and others, observed that because their very selection and appointments were found to be unconstitutional and invalid, the candidates concerned could not be given any other advantages.

Facts of the Issue

In 2014, the selection of 10,323 teachers by the state government of Tripura was challenged before the High Court in Tanmoy Nath vs. State of Tripura & others. It was argued that the selection process contained discrepancies.  The Hon’ble High Court concluded that the selections and the relevant policies were illegal and arbitrary, as the appointments were not in accordance with the provisions of the National Council for Teacher Education Act, 1993, and suffered due to favoritism and nepotism.  Consequently, the Apex Court issued directions to the Tripura government that the State should establish a new employment policy within two months. The selections shall be made as soon as possible and no later than 31.12.2014, in accordance with the new policy. The Hon’ble Court also made it clear that no other advantages will be given to the candidates.

 “We would like to make it clear that there can be no preference or reservations dependent on age other than the benefits mentioned by us above. No preference shall be granted to dependent government officials or retired government employees or retrenched employees etc. There can be no linguistic or religious minority reservations, except on an area-wide basis.”

In 2017, the decision of the Tanmoy Nath case was appealed against in the Supreme Court. The Apex Court while rejecting the appeal, modified the orders of High Court and directed the Government of Tripura to complete the fresh selection process by 31 December 2017 or before that.

The time given by the Supreme Court in the directions issued in the 2017 Order has been extended from time to time and the Supreme Court has finally issued instructions on 01.11.2018, extending the service duration of the teachers concerned to the completion of the 2019-2020 academic session.

Consequently, as per the instructions issued by the Supreme Court in 2018 and the direction issued in Tanmoy Nath‘s case, the teachers’ services were terminated after the 2019-20 academic session was over. Some of them have challenged their termination before the High Court of Tripura. The Hon’ble High Court dismissed their petition stating that petitioners seek review of the decision given in Tanmoy Nath‘s case which is not in accordance with the law, more so on the doctrine of merger. This judgment of Hon’ble High Court was challenged in the Supreme court. The Apex Court dismissed this appeal on the basis that the validity and legality of the complete selection process and the appointment of approximately 10,323 teachers were discussed in detail in the Tanmoy Nath case. The Supreme Court further directed that the State is obligated to undertake a selection procedure in which the applicants concerned are eligible participate, with age relaxation. The Court also pointed out that the attempt on the part of the State to offer some alternative employment is not to degrade the teachers, but to offer some consolation even in cases where the candidates do not succeed in selecting the teachers’ positions.

Thus, the above factual scenario led to the passing of the judgment by the Hon’ble Court of termination of 8882 teachers in Tripura with no other advantages to the concerned candidate.

Legal Provisions Involved

The legal provisions involved in the present case are Article 14 and Article 16 of the Constitution of India. Articles 14 and 16 falls within the framework of a constitutional right to equality. Article 14 focuses on the fundamental right to equality and Article 16 provides for the right to equal opportunity in matters relating to public employment. Thus, Article 14 read with Article 16 implies that the selection process in case of public employment should be such that all qualified applicants are given the equal chance of being selected.

Then comes the aspect of the Doctrine of Merger, which states that if the dispute before the superior court has been disposed of in some way i.e. either by affirming the judgment or order or by setting aside or by amending the same, the judgment of the Supreme Court shall be the final, binding and operational decision and the impugned order/judgment shall stand merged into the order passed by the Superior Forum, i.e. the impugned order/judgment retains no identity or enforceability of its own.

Critical Analysis                                              

The termination of teachers who were employed in the school education department has become a central political issue in the State of Tripura. The decision of the Supreme Court indeed seems to be a viable option, considering the law of the land, as the selection process is purely based on an oral interview which is contrary to the National Council for Teacher Education Act, 1993. The nepotism and favoritism in employing government teachers are against the spirit of equality, which is enshrined in Article 14 and Article 16 of the Constitution of India. As in the case Ramana Shetty v. International Airport Authority, the Apex Court had opined that “This Court relies on the observations of E.P. Royappa and Maneka Gandhi have again stated that state action must not be influenced by extraneous or irrelevant considerations, as that would be a denial of equality.” The present decision of the Supreme Court, therefore, confirms with the basic laws of the land. 

It is interesting to note that the Supreme Court affirmed the High Court decision of no other advantages to be given to the concerned candidate apart from age relaxation. This clearly shows the balanced decision of the Supreme Court in the present matter. The Court upheld the superiority of the law of the land, by disallowing any other advantages to candidates and simultaneously upheld the importance of equal opportunity by allowing age relaxation.

Conclusion

As the entire selection process was illegal and invalid, the only reasonable option that the Court could resort to, was to terminate the employment of the concerned candidates. The issue regarding the validity and legality of the entire selection process and the termination of 8882 government teachers was smoothly dealt with by the Hon’ble Court. The age relaxation allowed by the Hon’ble Court for application of post of teacher till 31.03.2023 will certainly provide the opportunity to the eligible and competent candidate to get selected for the post of government teacher in the legal and valid manner. Thus, the judgment handed down by the Hon’ble Court is rational and appreciable.

Author: Palak Jain, Institute of Law, Nirma University.

Editor: Astha Garg, Junior Editor, Lexlife India.

Exams During COVID-19: Legal Angle

Reading time: 8-10 minutes

On 6^th August 2020, a group of 11 students from 11 different states appearing for the National Eligibility cum Entrance Test (hereinafter referred to as “NEET”) and Joint Entrance Examination (hereinafter referred to as “JEE”) filed a writ petition in the Supreme Court seeking postponement of the said exams which are scheduled to be held in September 2020, to an unspecified further date, only after normalcy is restored post the covid-19 crisis.

Matters got interesting when a Gujarat based parents association also filed a writ petition on 8^th August in the Supreme Court, seeking the Court’s direction to the National Testing Agency (hereinafter referred to as “NTA”) and the Ministry of Education to hold the exams as scheduled in September 2020. The NTA is an autonomous agency tasked with the conduct of these examinations and other national entrance examinations to various graduate and undergraduate courses.

The matters are scheduled to be heard in the coming few days in the Supreme Court. In this article, we try to analyse the two petitions, their background and the legal grounds for each of them.

Facts of the Issue

The JEE and NEET exams were originally scheduled to be held in April and May 2020 respectively. In view of the pandemic and the nationwide lockdown, they were rescheduled initially to July 2020 and later to September 2020.

Let us analyse the two petitions.

1. Students Petition

The student petitioners’ argued the following:

1. Due to the Covid-19 pandemic, many aspirants who may be infected or fallen ill will be deprived of their chance to appear for the exams. This, they allege is a violation of their fundamental right to equality under article 14 of the Indian Constitution.
2. Keeping in mind the increasing number of covid-positive cases in the country,  and the possibility of the pandemic reaching its peak around mid-September, due to the congregation of students at the limited number of centres, there is a very high risk of infection of Covid-19.
3. Where aspirants stay far away from the examination centres, the lack of transportation facilities like public transport, the limited restarting of railways, and the unavailability of safe food, accommodation and medical facilities near the examination centres, as also the added cost of these, will be a grave burden on parents whose financial condition has been affected due to the pandemic.
4. Aspirants from Bihar, Assam and other North Eastern states which are badly affected by floods, will face severe problems in appearing for online exams due to connectivity issues caused by the floods and in reaching the offline exam centres due to lack of transport facilities.
5. The petition requested for increase of offline examination centres and have one centre in each district of the country.
6. The plea cites parallels with several other examinations including CBSE exams which were cancelled due to the pandemic.

• Parent’s Petition

Parent Petitioner’s argued the following:

1. Further postponement of the exam will lead to loss of the academic year for the students of the 2020-2021 batch.
2. The admissions process, even post the result of these exam, is long and prone to errors and will severely affect the academic session of the students.
3. The students have been rigorously preparing for these exams since they were in Class 10, and the repeated postponement will cause study fatigue, thereby affecting their result.
4. Postponement will also increase their stress levels and lead to anxiety, trauma and other mental health issues, also severely affecting their performance in these crucial exams, which determine their academic career and affecting their whole future.
5. The plea refers to the NTA notification dated 3^rd July 2020 which had given students the option to make changes to their centre of choice and also assured the students that the NTA will make every effort to allot the city of choice to the candidates as per their choice.
6. Like the students’ petition, this petition also cites parallels with other entrance exams which were also held during the pandemic.

The NTA’s Stand

The BBC conducted an interview with Dr. Vineet Joshi, the Director General of the NTA on 9^th August where he was asked about the petition of the students.

While he said that he was unaware of the particulars of the petition, he made the following points regarding the conduct of exams:

1. As per government guidelines, the number of test centres for JEE have been increased from 450 to 600, and for NEET from 2500 to 4000.
2. Staggered timings for students to avoid congregation of students at one time in the exam centre.
3. Provision of thermal screening and sanitizer at all centres for students. These timings will be mentioned on the admit cards.
4. Admit card will be accepted as pass to enter and exit containment zones. The local administration will be informed about this.
5. The aspirants were also given a window to change their exam centre of choice in July, as per their convenience.
6. He also expressed hope that there is still one month to go before the exams, and by that time, the flood situation in the flood affected states will also improve tremendously.
7. He also said that the Standard Operating Procedure issued by the Department of Higher Education, Ministry of Human Resource Development will be adhered to strictly ensuring safety of students.

Legal Provisions Involved

The students’ petition relies upon Article 14 of the Constitution which guarantees the equality of law and equal protection of law for all persons in the territory of India.

According to them, conducting the exams in September violates this right as the students who do not have a high speed internet connection or those staying away from exam centres and not having the financial means to reach the centre, as well as students hailing from flood affected states like Bihar, Assam and the North East will face severe difficulties in appearing for the exam, which will affect their chances of succeeding and in turn affect their career and future.

Article 21 provides for the right to life and personal liberty of all persons. This Article may also be invoked as the congregation of large number of aspirants at the exam centres may lead to high risk of disease and even death due to the infection. This violates the fundamental right to life of the students.

Legal Precedent

A recent petition filed by Abdulla Mannan Khan with respect to the Karnataka Common Entrance Test (hereinafter referred to as “KCET”) has many parallels with the petition filed by the students and the order of the Karnataka High Court in this matter can provide some guidance as to how the Supreme Court may look at both these petitions.

The Petitioner in this case pleaded for the postponement of the KCET on grounds similar to the students’ petition. The bench of Justices Arvind Kumar and M.I. Arun ruled that the exam should not be cancelled or postponed indefinitely, and it must be held in the interest of the students.

The Bench also said that all norms of social distancing must be followed not only inside the Centre but also outside it. Also, congregation of students must not be allowed to happen. The order also stated that due to the lack of adequate medical facilities and general physicians, the students who are Covid-19 positive must also be allowed to appear for the exam and separate rooms for such candidates must be provided, and under no condition should such candidates be stopped from appearing for the exam. 

Critical Analysis

While the Covid-19 pandemic is indeed an extraordinary situation which has affected all aspects of life, the NTA and Ministry of Human Resource Development have revised the schedule of these crucial exams twice.

While one petition places great emphasis on the right to life and equality as enshrined in the Constitution, the other places a greater emphasis on the students’ mental health and career opportunities and the loss of an academic year.

The matter is still to be heard by the Supreme Court. If the precedent of the Karnataka High Court petition is followed, it is likely that the Apex Court may allow the exam to be held, while directing the strict implementation of Standard Operating Procedure and guidelines for conduct of such examinations, to ensure safety of the students.

On the other hand, the Court may take a more cautioned stand and may direct the postponement of the exam or even cancellation of the exam. But this can create issues of its own. If it is postponed, when can it be held? There is no certainty as to when the pandemic will end or even be controlled as the vaccine trials go on in full steam. But it is highly likely that this entire academic year might be lost for all these students.

There are precedents of exams supporting both the petitions. While on one hand, the CBSE, Chartered Accountants exams were cancelled which support the contention of the student petition; the KCET and some other state entrance tests have been conducted during the pandemic.

Conclusion

As we saw that both petitions have their merits. On the one hand the right to equality and life as fundamental rights of the students and on the other side, the adverse impact due to stress, anxiety and trauma suffered due to the uncertainty around these exams for students who have toiled for almost 2-3 years just for this exam.

It remains to be seen as to which factors the Supreme Court attaches more importance to and how it balances these two issues.

Author: Hemant Kelkar.

Editor: Astha Garg, Junior Editor, Lexlife India.

Analysis: US Supreme Court on Immunity for President

Reading time: 8-10 minutes.

John Austin’s theory of legal positivism argued that a sovereign is not responsible to her subjects, owes no moral obligation and does not need to claim her ruling to be just. This approach has been passed on generations after generations. However, in Trump v. Vance, District Attorney of the County of New York, et al.,, the US Supreme Court, took a different route. With a majority of 7-2, the court ruled against the absolute immunity of the President. It allowed a local prosecutor access to the financial records of the sitting President Donald J. Trump. It further held that the subpoena wanting access to the financial records of the President in power does not require to meet the heightened need standard.

This was the first time the Court was dealing with a state criminal subpoena issued to a President.                                                              

Factual background

The New York District Attorney, on behalf of a grand jury, served a subpoena duces tecum to the personal accounting firm of President Donald J. Trump and sought access to his personal financial records. President Trump, acting in his individual capacity, sued the local prosecutor and contended that as per Article II of Supremacy Clause, the President enjoys absolute immunity from state criminal process and asked the court to issue a “declaratory judgment that the subpoena is invalid and unenforceable while the President is in office”.

The District Court and The Second Circuit denied injunctive relief to the President and allowed the enforcement of subpoena seeking the documents.

The Court held as under:

“Presidential immunity does not bar the enforcement of a state grand jury subpoena directing a third party to produce nonprivileged material, even when the subject matter under investigation pertains to the President.”

Dismissing the President’s argument, the Court gave primacy to public interest and just proceedings. It held that “the public has a right to every man’s evidence”. Following John Marshall’s approach in the treason case, where the subpoena was directed to the President Thomas Jefferson, it was held that subpoenas do not “rise to the level of constitutionally forbidden impairment of the Executive’s ability to perform its constitutionally mandated functions”. 

It was contended by President Trump that such state criminal subpoenas make the Presidents easily identified targets for harassment and undermine the executive’s liberty to deal with the State affairs. On this contention the court observed that “even if a tarnished reputation were a cognizable impairment, there is nothing inherently stigmatizing about a President performing “the citizen’s normal duty of . . . furnishing information relevant” to a criminal investigation.” The Court held that even in the past, Presidents (from Jefferson to Clinton) have been summoned to produce the required documents and therefore the sitting President cannot eschew the liability.

It was further held that subpoena is not the last resort and is not bound to meet the heightened standards to ensure that no unreasonable extension to the protection is given to the President’s private documents. The Court, while referring to Aaron Burr’s Case, held that with respect to the private documents of the executive, President stands at par with any other individual and cannot take the defence of his chair.

The Court, refuting the exclusivity of the President and lack of heightened need standard, held that there are remedies available under the law, which allow the President to question the alleged unconstitutional influence and, the Court to dismiss sham subpoenas. The Courts have been given the power to nip vexatious subpoenas in the bud vis a vis uphold the independence and position of the President in the constitutional scheme. Therefore, for all these safeguards, absolute immunity is not required.

Dissenting Opinion

Justice Thomas and Alito gave their dissent against the local subpoenas directed to the President. Both the judges were of the opinion that these local subpoenas question the functioning of the Government. They expressed that these subpoenas undermine the efficacy and the well-being of the nation and therefore, keeping in mind the separation of power between the Federal and States, all these local prosecutors should not be given the power to question the authority of the President.

Author’s Analysis

A sovereign has always been treated as a demigod. The absolute powers given to our leaders has time and again made it difficult to question the feasibility of their commands and treating them as an integrated personality has given them this inherent sense of immunity that will ensure that they are never called out for their actions.

However, the recent judgement of the US Supreme Court gave the much needed reassurance that leadership can be subjected to checks and balances. The Court struck a balance between the interests of the public and the powers of the executive, which was the crying demand of the current times. Equity and primacy of citizen’s rights was the driving force behind the judgement given in the case. The requirement for the President to produce the documents in Court just like his fellow citizens, proved that nobody can evade a criminal investigation and the judicial direction. It was established by the Court that the President is not infallible and is bound to answer the Court and his people for his actions.

Conclusion

“No man is above the law and no man is below: nor do we ask any man’s permission when we ask him to obey it” – Theodore Roosevelt

The judgment embarked on a new journey to establish a parity of treatment between the individuals of a State and the President when it comes to an alleged violation of any state law. The Court via its judgement reinstated that United States is a nation of law and no one is above the law, not even the President and it treats everybody the same.

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

Editor: Astha Garg, Junior Editor, Lexlife India.

Analysis: Controversy Regarding Draft EIA Notification 2020

Reading time: 6-8 minutes.

In March 2020, the Ministry of Environment, Forest and Climate Change introduced a Draft Environmental Impact Assessment (EIA) Notification, 2020 to succeed the present notification which has been in place since 2006. This is initiated under Section 3(1) of the Environment (Protection) Act, 1986 which gives powers to the Central Government to take all such measures to “protect and improve the quality of the environment”.

The changes brought by the new notification will make the process more expedient and transparent by introducing an online system. This has drawn a lot of criticism from environmentalists, activists and other experts in the field, who claim that it will water down the existing provisions which are already weak.  

The latest development on the new draft Environment Impact Assessment (EIA) Notification 2020 is that the Central Government has been asked to consider the extension of time to file any objections pertaining to the notification. Presently, the last date for the submission of the objections was August 11^th, 2020. The government has been warned that if the extension of the time limit is not complied with, then the Bench would possibly put a stay on the notification.

Facts of the Issue

The proposed draft notification seeks to replace the present rules.  It is important to note that the EIA is the process responsible for giving environmental approval and clearance to developmental and industrial projects.

This has drawn heavy criticism for the unnecessary dilution of the current process and for ensuring a smoother and swifter way for industries to secure environment clearances and violate rules.

After much pressure from activists and opposition, the date for public comments and changes was extended to August 11. Considering the ongoing COVID-19 pandemic, calls have also been made for further extension of three to four months keeping in mind the serious repercussions that the proposed notification would have on the environment.

Legal Provisions Involved

The legal question involved in this issue is Section 3 of the Environment (Protection) Act (EPA) of 1986. Under Section 3(1) of this Act, the Central Government is empowered to take measures “for the purpose of protecting and improving the quality of the environment, and preventing, abating and controlling environmental pollution.” 

In Alembic Pharmaceuticals Ltd. v. Rohit Prajapati, the Apex Court noted that, “For an action of the Central Government to be treated as a measure referable to Section 3, it must satisfy the statutory requirement of being necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environment pollution”. Following this line of thought, the EIA 2020 draft notification is in contradiction to the powers vested to the Central Government.

Another problematic change in the proposed draft, is that it allows projects to receive post-facto clearances, which means that a project which is in violation with EPA provisions can later apply for clearance. In a recent April order, the Supreme Court has stated that, “ex post facto clearances are unsustainable is law and void. ” It also considered it to be against sustainability and the precautionary principle. Additionally, in the case of Common Cause v Union of India, the Supreme Court opined that “the concept of an ex post facto or a retrospective EC is completely alien to environmental jurisprudence including EIA 1994 and EIA 2006.”

The procedure for public consultation for the new draft EIA has also been marked by controversy as mentioned earlier. It is pertinent to note that the requirement of an ex post facto public hearing was introduced by an amendment in 1997 to the 1994 EIA. The case of Lafarge Umiam Mining Pvt Ltd v Union of India upholds the legality of an ex post facto public hearing.

Critical Analysis

Environmental Impact Assessment (EIA) is a process of evaluating the possible beneficial or adverse environmental impacts of a proposed project or development. According to the UNEP, EIA is a tool used to identify the environmental, social and economic impacts of a project.

It is crucial to analyse the potential impact of the draft EIA to better understand the trade-off between the environment and development. While development does not necessarily come second to environmental concerns, the environment cannot be sacrificed in a relentless, indiscriminate pursuit of development. Ideally, the EIA notification rules should maintain a balance between these two pursuits.

Another alarming proposal is that it gives exemption to a long list of projects from the purview of EIA, which limits public involvement. This includes any venture which the Government deems as “strategic projects”. According to the draft, no information on “such projects shall be placed in the public domain”. This lists also covers all inland waterways and national highway projects. All construction projects up to 150,000 sq. m. shall also be relieved from the EIAs. This aspect obviously gives the Government vast discretionary powers on the matter.

Moreover, the draft notification also says that cognizance of a violation will only be considered through a report by only the Government or the project developer, or on a suo motu basis. It is difficult to understand how this is effective in the protection of the environment and interest of the communities

It is interesting to note that the EIA process was a result of the 1992 Rio Declaration on Environment and Development, which states that environmental issues are best handled through the participation of all concerned citizens and that States must provide an opportunity to citizens to participate in the decision-making processes. Similarly, in the Samarth Trust case, the Delhi High Court considered EIAs as “a part of participatory justice which gives voice to the voiceless”.

Lest we forget, Article 51A (g) of the Indian Constitution dictates that it is the fundamental duty of every citizen “to protect and improve the natural environment including forests, lakes, rivers, and wild life, and to have compassion for living creatures.” It is essential that a law on EIA must inculcate such values.

Another cause of distress is that the 2020 draft does not address any of the issues which have troubled the earlier EIAs. Such as:

• the poor manner in which public hearings are conducted,
• the lack of cumulative Environment Impact Assessments,
• lack of transparency in the finalisation of the EIA Reports,
• failure to assess, monitor lack of compliance or to hold violators accountable

It is feared that the proposed EIA notification will compound these issues and intensify the rate of ecological degradation in our country. India has slipped 36 places in the 2018 Environmental Performance Index, in the span of just 2 years, placed at 177 out of 180 countries. In 2020, it is placed at the 168^th position.

Conclusion

Environmental regulation must balance damage to the environment with sustainable development and possible benefits, but the new notification focuses more on the benefits and needs some serious reconsideration.

The Ministry, instead of reducing the time for public consultation, should emphasize on ensuring access to information and awareness about the role of public hearing. The draft EIA notification needs wide and deep deliberation before it is finalised. The provisions which are pro-development need to be tempered, considering that the collapse of natural infrastructure will be suffered by generations to come. 

Author: Nikita Prakash from Symbiosis Law School, Pune.

Editor: Astha Garg, Junior Editor, Lexlife India.

Pre-Packaged Insolvency: A Solution in the times of COVID-19

Reading time: 8-10 minutes.

The COVID-19 outbreak and the ensuing lockdown have affected the Indian economy adversely, causing financial hardships to several businesses across the country. In the wake of the prevalent situation and to prevent mass insolvency proceedings, the President has promulgated an ordinance and suspended the filing of new cases under the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “IBC”). The said Ordinance disallows filing new applications under Sections 7, 9, or 10 of the IBC, for 6 months, for any default triggered by the COVID-19 crisis occurring on or after 25 March, 2020. The decision to suspend IBC will provide some breathing space to the businesses. However, once the suspension is lifted, the tribunal i.e. National Company Law Tribunal (hereinafter referred to as “NCLT”) will be flooded with insolvency applications. Thus, it is an opportune time to revisit the pending reforms and explore alternative solutions to the conventional corporate insolvency resolution process (hereinafter referred to as “CIRP”).

Pre-packaged insolvency process (hereinafter referred to as “pre-packs”) is one such reform that would solve the problem of mass insolvency proceedings post COVID-19, and consequently help decrease the burden on the NCLT. The government is planning on introducing the pre-packs under the scheme of the IBC. This article will discuss the scheme of pre-packs in detail and highlight its impact on the Indian insolvency regime. It will discuss the possible benefits and advantages of pre-packs. But more importantly, the article focuses on the challenges and issues that need consideration before implementing the scheme in the Indian scenario.

What is Pre-Packaged Insolvency?

A “Pre- Packaged Insolvency” is an arrangement, where the sale of all or part of a company’s business or assets is negotiated with a purchaser before the appointment of an insolvency professional as the administrator. The actual sale is then executed on the appointment and approval of the insolvency professional (hereinafter referred to as “IP”). The pre-pack mechanism essentially facilitates the formulation of a resolution plan before any formal proceedings. This arrangement reduces the time and money spent on court proceedings and directly moves to getting a fair resolution for the company. The main objective of pre-packs is to strike a balance between the interests of the creditor and protect the business from liquidation.

This might be a novel mechanism in India, but countries like the United States of America (USA) and the United Kingdom (UK) have successfully implemented it in their respective insolvency practices. Since India has no regulatory experience with pre-pack, a new framework or amendments to the existing provisions of the IBC would be required to implement the scheme in the current insolvency framework.

Implementation of Pre-Packs in India

The Bankruptcy Law Reform Committee, tasked with contextualizing the IBC, has recommended pre-packs as a viable alternative to the conventional CIRP in India. According to the report submitted by the Committee, the pre-pack plan can be allowed under the NCLT supervised scheme of arrangement. Under this arrangement, the pre-pack plan would be subjected to prior approval of the creditors and the relevant stakeholder before being presented to the NCLT. Further, the NCLT would approve the plan only after scrutinizing and ensuring that the plan satisfies the basic requirement as may be prescribed under the IBC. Therefore, the pre-pack scheme would essentially follow the procedure under IBC, while still preserving the business of the Corporate Debtor.

Advantages of Pre-Package Scheme

Apart from preserving the business of the company and protecting it from potential liquidation, pre-packs possess many benefits that are very hard to ignore. Firstly, they would provide a better return to the creditor. In the current insolvency mechanism, often during the CIRP, the value of the assets gets depreciated which eventually results in lesser pay to the creditors from the proceeds of the resolution plan. But in the pre-packs mechanism, the value of the assets will be negotiated in advance, therefore, providing better returns to the creditors.

Secondly, it’s significantly less time-consuming and inexpensive in comparison to the formal insolvency proceedings, because all the essentials of the pre-packs, like negotiation and documentation of the proposed plan, are done beforehand. This reduces the total cost involved in the process and preserves the value of the business which can be crucial for the survival of small businesses.

Lastly, pre-packs would operate within the fold of the statutory scheme. As opposed to a private restructuring process, pre-packs would function as a statutory backed resolution process under the IBC. This implies that pre-pack would be subjected to the approval of the NCLT and consequent to the approval, all the stakeholders would be bound by the resolution plan. This would mitigate the threat of subsequent challenge and non-compliance by the creditors.

Challenges to and Suggestions for Implementation of the Pre-Pack Scheme

1.      Moratorium

In the regular insolvency proceedings under Sections 7 or 9 of the IBC, an automatic stay i.e. moratorium comes into effect, in terms of Section 14. The moratorium prohibits the creditors from enforcing remedies against the corporate debtor and its assets. However, a debtor seeking pre-packs may not have the protection of a moratorium. This would give rise to a situation where the creditors can approach the Courts or Tribunals and enforce their remedies, while the debtor is negotiating a pre-pack resolution. Such additional litigation would not only threaten the assets of the debtor, but also force the company into CIRP or liquidation. To mitigate such a threat, the Government must introduce a provision or extend the protection of moratorium to the pre-pack mechanism. This would allow the debtor to focus on coordinated restructuring and restrain the creditors from enforcing remedies against the debtor’s assets.

Alternatively, in the absence of moratorium, the debtor could regularly communicate with the creditors and try maintaining its credibility to avoid any such situation that could defeat the pre-pack resolution. This would require the debtor to accommodate the interests of creditors and share all the necessary information with the creditors. However, achieving such cooperation among creditors and debtor is easier said than done. In the absence of a moratorium, the creditors can break off the negotiation at any-time and enforce their rights, thereby defeating the entire pre-pack resolution. Therefore, the protection of the moratorium will be instrumental in reaching a successful resolution under the pre-pack mechanism.

2.      Lack of Transparency

The confidential nature or lack of transparency is another challenge to the implementation of the pre-pack scheme. Since the process of entering into the pre-pack arrangement is opaque and receives only the assent of the secured creditors, there are not enough incentives to consider the stakes of unsecured creditors. In such cases, the assets of the debtor company may be transferred without realizing the value payable to the unsecured creditors. Moreover, the confidential nature of the scheme would deny such creditors the opportunity to object to the transaction. Thus, adequate remedies and recourse must be introduced in the pre-pack scheme to protect the interest of unsecured creditors. A reasonable timeframe must be provided for the unsecured creditors to file claims and raise objections to the plan. Additionally, the mandate to obtain approval from the NCLT would prevent such unjust transactions by stakeholders and address the concerns of unsecured creditors. This would be important to help creditors develop confidence in the new procedure.

3.      Section 29A of the IBC

Section 29A would also acts as a major hurdle in the introduction of pre-pack schemes in India. This provision was introduced by the Insolvency & Bankruptcy Code (Amendment) Act, 2018, and it prohibits the existing management or promoters of the debtor company from regaining control over the assets of the company. It essentially stops the backdoor entries of the defaulting promoters back to the management. Since the pre-pack scheme is a debtor initiated process, it would be the promoters who are in-charge of the process and not the IP. The promoters negotiate with the creditors to retain control of the business and keep it as a going concern. This would go against the basic essence of Section 29A and, thus, disallow corporate debtors from formulating a resolution plan with the creditors.

It can be argued that such an evasive manner of regaining control under the pre-pack scheme would result in circumvention of insolvency laws. However, if the inability to repay the debts is caused by factors like sluggish economic growth (caused by pandemic like COVID-19), then allowing the existing promoters to retain control would be economical. This would ensure continuity of the business activity and minimize the interruption.

The Government must therefore, dilute section 29A in order to implement the scheme of pre-packs in India. The reason to dilute section 29A is to encourage proactive debtors (in distress) to negotiate the terms of insolvency with their creditors. If a provision similar to Section 29A is made applicable to the entities willing to go for pre-packaged insolvency, it may tend to defeat the very objective of such a scheme. Thus, pre-packs must be free of section 29A.

Conclusion

The COVID-19 pandemic and the ensuing lockdown has posed challenges for Governments around the world. With every economic activity coming to a halt, businesses are facing severe financial crisis and are pushed into insolvency. The pre-packs scheme, if introduced, will act as a catalyst in helping those businesses survive.

Since India does not have any prior regulatory experience with pre-packs, the introduction of this scheme would require some serious contemplation and due diligence. The Government must conduct a comprehensive study and ensure that all the problems are eliminated and a better mechanism is put in place.

The pre-packs scheme, if implemented in a proper and time-bound manner, would justify and strengthen the pre-IBC resolution mechanism in India. Therefore, it is of the utmost importance to take such effective measures to remove the state of uncertainty and safeguard the interest of the creditors during such unprecedented times.

Author: Vedaant S. Agarwal from National Law University, Jodhpur.

Editor: Astha Garg, Junior Editor, Lexlife India.

An Analysis: Reasonable Cause Requirement in Termination Simpliciter Cases

Reading time: 8-10 minutes.

The current pandemic has impacted businesses negatively throughout all sectors. It is being observed that the employers are resorting to shutting down their businesses, downsizing their operations, letting go of employees as measures to combat the persisting economic scenario. Under Indian employment law, there are three modes by which an employer of a commercial establishment can terminate the services of his employees; voluntary resignation by the employee, termination of services by employer on account of misconduct on part of the employee and termination simpliciter.

Companies in India are under an impression that termination simpliciter is a right of the employer and is completely dependent upon employer’s discretion. More often than not, the employer is under an impression that terminating the employment via this mode requires no reasoning. However, as per the provisions on termination of services as laid down under various States’ Shops and Commercial Establishments Act, it is observed that termination can only be accomplished if the employer has a ‘reasonable cause’ for dismissing the employee. This article aims to explore the requirement of a reasonable cause before an employer can terminate the services of the employee, especially under current economic scenario.

Statutory Framework

Some states in India have mandated that the termination or dismissal of services of an employee, who has worked in an establishment for a prescribed period of time, cannot be done without providing a reasonable cause for such termination or dismissal. The statutory provisions for this reasonable cause requirement are similarly worded in all the State enactments. Some of the States inter-alia that have this provision in their Shops and Commercial Establishments Act are Andhra Pradesh, Tamil Nadu, Kerala, Delhi, Bihar, Madhya Pradesh, Haryana and West Bengal. These provisions also afford the dismissed employee with a right to appeal to the concerned authority in cases where no reasonable cause has been cited by the employer. Meanwhile, Maharashtra, Gujarat, Orissa and Uttar Pradesh are some states that do not have this requirement inscribed in their statutory provisions.

It is now pertinent to understand what the courts in India have held to be a reasonable cause for valid termination of employment and how have the courts ruled in cases where such a cause was absent.

Judicial Pronouncement

It is necessary to understand the mandatory nature of this provision and assess whether the employer is bound to give reasons to the employees for their dismissal. The Supreme Court in the case of Syed Azam Hussaini vs. Andhra Bank Ltd. [AIR 1995 SC 1352] recognized that a termination order by an employer will not be considered legal, if it is devoid of any reasonable cause. In this case, the employee was a clerk working with the employer bank on probation. The bank terminated the services of the employee without citing any reasons whatsoever. This case identifies that mere termination simpliciter without assigning reasons will not be considered a valid termination of employment.

The Supreme Court further clarified in the case Sri Ganganagar Urban Co-opertive Bank Ltd.  vs. Prescribed Authority and Ors. [AIR 1997 SC 2687] that, if the termination is not for misconduct, then the employer was required to give reasonable cause for dispensing with the services of an employee. Moreover, in the case of Cox and Kings India Ltd. vs. Narendra Singh Rathore and Ors. [2012 (3) ILR (Raj) 656], the Court held that if the statutory provisions require that the employer must provide reasonable cause, then the same cannot be contractually subverted by the employment contract. The employment contract in this case had a provision which stipulated that the employer could terminate the services by giving a three months’ notice or salary in lieu thereof. Recently, the same dictate of law has been upheld by Jharkhand High Court in the case of Kansai Nerolac Paints Limited vs. The State of Jharkhand and Ors. [MANU/JH/0684/2019] which states that the burden of proving that the termination was for a reasonable cause is on the employer and the said employer must record it in the termination order.

The Courts have not only recognized the need for providing reasons before termination, but have also examined the scope of the term ‘reasonable cause’. The Patna High Court has recognized what all cases could be considered as reasonable causes in the case of Rajendra Prasad Sah and Ors. vs. State of Bihar and Ors.  [1988 PLJR 1065]. In the said judgement, the Court recognized the wide ambit of the term, and emphasised that the scope of reasonable causes will depend on the particular facts of the case. Furthermore, the Court cited that where termination takes place on the basis of factors beyond the control of the employer, as on account of closure of the business, reduction in the extent of the business for bona fide reasons, lockout in the factory, reduction of work, loss in business, financial constraints, in the interest of efficiency and economy, winding up of the company can be considered as reasonable causes.

This case states, that in the interest of economy and efficiency, a termination of an employee due to the business not performing well would be considered a valid reason for termination. This judicial pronouncement clarifies that economic difficulty is a valid reason for termination. This can enable employers to terminate contract of employment owing to increasing hardships in their businesses in the Covid-19 lockdown.

Insufficiency of work and termination on account of downturn in business has also been held to be a reasonable cause in the case of N.M. Mehta vs. Coromandal Fertilizers Ltd. and Ors. [1976(2) APLJ (HC) 279]. In this case the statement of business of the establishment portrayed that there had been a steep fall in the turnover of the business which was considered to be a reasonable cause for termination of employment.

However, an employer cannot dispense with the services of an employee by merely stating that their services are no longer required. The management or the employer will have to demonstrate the reasons why those services are no longer needed. This has been held by the Madras High Court in the case of The Management of Air France v. The Deputy Commissioner of Labour and others [(1996) IILLJ 210 Mad].

Furthermore, it is observed that non-compliance or failure on part of the employer to give reasonable cause for the termination can lead to reinstatement of services of the employees with payment of other consequential benefits. As to the payment of back wages, it depends upon the timeline and facts of the particular case.

Concluding Remarks

Employers should be mindful of the fact that these provisions are applicable to non-managerial employees as most State enactments under Shops and Commercial Establishment Acts, in most States exempt managerial employees from its purview. As was observed in the case Tata Engineering and Locomotive Company Limited vs. The Presiding Officer and Ors. [2013 (3) LLN 653 (Jha)], that when an employee in a managerial post is dismissed, the employer is not required to comply with the provisions set out in the Shops and Commercial Establishment Act of the State in question.

By way of these cases, the Courts have demonstrated what can be construed as reasonable cause and how an employer needs to comply with the statutory requirement of providing a reasonable cause. Business not performing well, economic constraints, closure of establishment, unsatisfactory performance of the employees, non-fulfilment of contractual conditions, can all be construed to be reasonable causes for termination of employment.  In light of these cases, it can be inferred that the employer should be mindful of the statutory provisions applicable upon its establishment. As a good governance measure, employers should ensure that they specify sufficient reasons and have requisite proof before they terminate the employment of their employees.

Author: Sana Sarosh from National law Institute University, Bhopal. 

Editor: Astha Garg, Junior Editor, Lexlife India.

Analysis: Plea for ‘One Nation, One Education Board’

Reading time: 8-10 minutes.

India has a rich history concerning the education system. It is the birthplace to one of the oldest universities in the world, for instance, the Nalanda University was built in 5^th Century BC. Since then, India has come a long way by introducing new pedagogy, syllabus, and education boards to streamline the administration and education provided. Various education boards and statutory bodies are established by the Government of India, to facilitate the working of the education system and provide quality education to every student. There are two major national education boards, the CBSE (Central Board of Secondary Education) & the CISCE (Council for the Indian School Certificate Examination) under which the Indian Certificate of Secondary Education (ICSE) and the Indian School Certificate (ISC) boards come. Apart from this, most states also have independent State Education Boards. Most boards are under the Government’s control, but some are controlled by private and international entities.

Petition, Provisions, & Facts of the Issue

India hasn’t followed a ‘one nation one education board’ formula. States are given liberty to establish education boards by passing Acts in their State Assemblies. Under point 25 of the Concurrent list given in the Seventh Schedule of the Indian Constitution, education comes under the ambit of the State as well as the Union. A number of boards in India have led to non-uniform and varied standards and systems of education, in every part of this country. State Education Boards tend to give education at less cost, though the quality of education compared to that of a national board or international board is often questioned and criticised. The Public Interest Litigation (hereinafter referred to as “PIL”) filed by Ashwini Kumar Upadhyay, a BJP leader and advocate, in the Supreme Court of India, challenged this concept of multiple boards across India.

His Petition has looked into the feasibility of establishing of ‘One Nation, One Education Board.’ The plea sought to merge the two of many existing boards into one, i.e. CBSE & CISCE into one official national board of education. The plea further sought to achieve socio-economic equality and justice. For this objective to mbe met, it is necessary for every school to adopt a similar syllabus and curriculum.It was also stated that entrance exams conducted by the Central Government are based on the syllabus and curriculum of the CBSE board. According to the PIL, a student studying in a State Board school has to face more hardship than the student studying in the CBSE board, because of the education and teaching standards while appearing for entrance exams.

This promotes inequality between standards of education provided to the youth of India. The plea suggested that the official language of teaching may change according to the preference of the States. The main contention of the plea was that the prevailing education system does not provide equal opportunity to students between ages 6 to 14. Even though Article 21A (Right to Education) guarantees education to all children, the standard of education provided by some boards is well below standards of CBSE. The PIL further suggested to the Supreme Court of India, the establishment of a national education council or commission, that can implement the proposed system.

Similar Petitions & Verdicts

This is not the first time a PIL has been filed regarding this issue. In 2017, Neeta Upadhyay, a teacher in primary school and wife of BJP leader Ashwini Kumar Upadhyay, filed a PIL pertaining to this issue. The plea was however, dismissed by the Court by saying merging of education boards is not the court’s job and students will be burdened by addition of more books. This dismissal of the PIL was in stark contrast to another judgement passed by this very court in year 2011. In the judgement of 2011, State of Tamil Nadu and Ors. v. K. Shyam Sunder and Ors., the Supreme Court averred that separate education boards are unequal and violate the doctrine of equality. Coming back to the year 2020, the Apex Court seemed to follow the 2017 verdict, by yet again dismissing the plea and stating that the petition lays no foundation for the Court to issue directions in the favour of the plea.  The Court asked the petitioner to approach appropriate authorities i.e. Government, with this prayer.

Critical Analysis of the Issue.

Positives:

1. The idea of “One Nation, One Education Board,” strives for making the idea of a Uniform Civil Code come closer to reality. Article 44 (Fundamental Duties) of the Indian Constitution provides that the State should endeavour to establish a Uniform Civil Code which will apply to everyone in India.
2. A national education board could have made the education system uniform and bearing a standard quality throughout the country.
3. If this system was implemented, changing schools would not have been a problem, as every school would have followed the same system.
4. Despite the socio-economic inequalities in the country, everyone would have an equal level of education.  

Negatives:

1. Education is mentioned in the Concurrent list, which means that both Union and States can establish education institutes and boards. Implementing one national board will mean that the right of State Governments to establish education boards is taken away by the Central Government.
2. A decent CBSE board affiliated school charges more money than the State board schools. If every school starts following the national board’s syllabus and curriculum then the fees of schools will likely increase. This will lead to students dropping out of schools earlier because of the unavailability of funds.
3. Taking an example of the Maharashtra State, most of the reputed and established schools and junior colleges follow the SSC and HSC board. The fees are low and faculties are well experienced. Introducing a change in this system will lead to such reputed schools to collapse.
4. Teaching faculties, writers, and administrators might even have to lose their job or have to adapt to a different system, making their years of experience in the subject and administration worthless.
5. Currently, parents and students get to choose the education board by enrolling in preferred schools. If the current system is replaced then students cannot choose as per their convenience and abilities, the education board that they can best flourish in.
6. This might put pressure on students and parents not coming from well off families who cannot afford extra tuition and study materials.     

Conclusion:

The idea of ‘One Nation, One Education board’ seems exciting but it has some drawbacks. The Supreme Court has rejected to entertain the PIL, but the Government may take it into consideration. The current Government has a Uniform Civil Code as one of their agendas might go ahead with the idea. But doing so will cause some real problems for the employed teachers, staff, and students studying in schools. If the government could come up with a concrete plan, then this suggested system of one official national education board can become a success. To achieve that, the Government has to provide subsidiaries, scholarships, and financial aids to students and schools. This will ensure that every child gets access to quality education. across India and no one to be left uneducated or illiterate.

Author: Tejas Kandalgaonkar from MNLU, Mumbai.

Editor: Astha Garg, Junior Editor, Lexlife India

Jawahar Bag Massacre: Legal Angle

Reading time: 8-10 minutes.

A petition has been filed in the Hon’ble Supreme Court regarding the 2016 Jawahar Bagh Massacre, by the wife of the Late Sh. Mukul Dwivedi (the then Superintendent of Police, Mathura) in which he and twenty-nine others were killed. The Petitioner has demanded an expeditious investigation by the Central Bureau of Investigation (hereinafter referred to as “CBI”) in the present case, which has not made much progress since it was transferred to it, due to the political strings involved in the case. The incident sheds light on the nexus between politicians and gangsters, raising issues of criminal conspiracy while showcasing the apathy of the authorities towards their profession. The author will also discuss the scope of right to speedy justice enshrined under Article 21, on which the case is based.

Facts of the Issue

The facts relate to the Jawahar Bagh Massacre of 2016, in which 30 persons had died and several others injured. The Petitioner’s husband and other police officers were instructed to break the boundary wall surrounding the Bagh, one day before the eviction of Ram Briksh Yadav and his associates. The confederate was occupying the Bagh for over two years and the authorities were compelled to evict them after the High Court at Allahabad issued a contempt Notice. This resulted in the authorities making plans to evict Ram Briksh Yadav and his men, however, their strong political ties with the ruling political party resulted in the plans being stifled. The politicians exercised their influence over the District Magistrate and Senior Superintendent of Police, Mathura, who ordered the Petitioner’s husband and other police officers to visit the site and gauge the implication of breaking the boundary walls. In the ensuing clash, the Petitioner’s husband and twenty-nine others lost their lives.

The Petitioner contends that the political ties of the accused men have hampered the investigation. She claims that even after the order of the High Court at Allahabad, to complete the investigation within two months in 2017 was made, the investigation has not been completed even after the expiry of forty months. She further alleges that the CBI has not even interrogated the politicians connected with the matter, nor has any punitive action been taken against the then District Magistrate and Senior Superintendent of Police of Mathura. Also, she states that her husband’s killing is part of a larger criminal conspiracy. Among other allegations of foul play, the Petitioner stated that her husband had not been eating properly and was stressed as he was not allowed to take any strict action against the miscreants. On the eventful day, her husband and other police officers were not allowed to carry any arms on the pretext that some of the policemen were new recruits. 

Hence, she moved the Hon’ble Supreme Court under Article 32, demanding the completion of the investigation within two months, stating that her right to speedy justice, guaranteed by Article 21 was being violated due to the non-completion of the investigation by CBI. She has prayed that two investigative teams of CBI be formed so as to look into the incident at Jawahar Bagh and to investigate the State Government for its inaction in the said matter. 

Legal Provisions Involved

Article 21 casts a negative obligation on the State to not deprive any person of his life or personal liberty, except according to the procedure established by law. The import of Article 21 has been expanded by judicial review, to encompass the right to speedy justice. In the present case, undue delay in the investigation of the case has resulted in the violation of the said fundamental right. It is a settled principle of law that speedy trial and time bound disposal of criminal cases is not only the right of the accused, but also the right of the victim under Article 21 of the Constitution of India, as recognised by the Hon’ble Supreme Court in Mangal Singh v. Kishan Singhand continuously reiterated in other cases.

Another vital aspect of Article 21 highlighted in the present case is the demand for a proper investigation by the CBI. It is trite law that no one can claim investigation by an investigative agency of one’s choice instead for proper investigation as decided by the Hon’ble Supreme Court [Sakiri Vasu v. State of UP: (2008) 2 SCC 409]. In the present case, the Petitioner has invoked the jurisdiction of the Hon’ble Apex Court, to get an impartial and proper investigation into the Jawahar Bagh Massacre, in which her husband and twenty-nine others were killed.

Critical Analysis

The case brings back the focus on the issue of delay in justice delivery in the country. A thorough and proper investigation must be carried out in the said matter so that the Petitioner can feel a sense of justice. Only when justice prevails in the true sense, can one claim that the rights conferred under Article 21 are being upheld. In the author’s opinion, a Court monitored investigation must be undertaken as grave issues of corruption, violence and support of political parties to the gangsters seem to be at play in the facts of the present case. In such a scenario, the investigation team must conduct a thorough and fair investigation.

In case, the CBI is not able to complete the investigation in two months, then the Court could grant some amount of extension. If not, the Court can initiate contempt proceedings against the Investigating Officer. This will act as a deterrent if the CBI decides to slack off during the investigation. Thus, these two measures could go a long way in ensuring a proper investigation in the Jawahar Bagh Massacre.

Conclusion

It is quite appalling to see that public authorities entrusted with the task of keeping the public safe, buckle under political influence. If not for such inaction, such an incident would have been avoided and one less petition would have been filed in the Hon’ble Supreme Court. Similar has been the case with the State police which also failed to conduct a proper investigation. Thus, the onus is now on the CBI to conduct a fair investigation and bring the accused persons to light. It is imperative that the people’s representatives must not use their influence to help their allies gain undue benefits. 

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

Editor: Astha Garg, Junior Editor, Lexlife India

Padmanabha Swamy Temple Issue: Legal Angle

Reading time: 8-10 minutes.

The Supreme Court bench comprising of Justice UU Lalit and Justice Indu Malhotra, delivered the final judgement in the case concerning the management of Sree Padmanabhaswamy Temple on July 13, 2020. The judgement is being hailed as a victory for the Travancore Royal Family which was involved in a long-drawn legal battle with the state of Kerala. The present case arose from an appeal preferred by the Royal family and its members, from the judgement of the Kerala High Court on January 31, 2011. In the following paragraphs we will discuss the various issues which were dealt with by the Supreme Court.

Facts of the Issue

Sree Padmanabhaswamy Temple is located in the modern-day city of Thiruvananthapuram and finds mention in many historical texts, but its exact origin is lost in antiquity. In the 18^th Century, Marthanda Varma became the king of Travancore and carried renovations to the temple and declared himself as the vice regent of the Deity. After India gained independence, the Travancore and Cochin princely states signed the Instrument of Accession and also entered into a covenant with the Indian Union which laid down various terms of agreement in exchange of relinquishment of its sovereign status. Article VIII of the said covenant granted the management rights over the Padmanabhaswamy Temple to the ‘Ruler’ of the Travancore State, which got reproduced in a separate Chapter III of the Travancore Cochin Hindu Religious Institutions Act, 1950 (hereinafter referred to as “TCHRI Act”). Under the Act, the ‘Ruler’ has been given the authority to administer the Temple with the aid of an Executive Officer and advice of a three-member Advisory Committee, both nominated by the Ruler.

The signatory to the original covenant passed away in 1991, after which the rights were inherited by his brother, who has died during the pendency of the proceedings before the Supreme Court. The genesis of the present legal dispute goes back to 2009, when the ouster of a tenant led to a suit challenging the executive authority, which was appointed by the Royal Family.

The tenant, a practicing advocate, questioned the legitimacy of the royal family as administrators of the temple post the death of the original ‘Ruler’ in 1991. This suit was followed by multiple civil suits in various Districts Courts of Kerala, following which the Royal Family moved to the Kerala High Court to get a decision on the common question of whether the successors of the original signatory king claim the rights bestowed on the ‘Ruler’ under the TCHRI Act, 1950. The High Court answered the question in the negative, and granted the State Government complete rights over the temple’s management and ordered for opening of the sacred treasure vaults within the temple’s structure. Aggrieved by the decision, the ‘Ruler’ and the Temple Trust preferred appeals against the High Court’s decision, and later the Chief Thantri of the Temple and some other organisations joined as Intervenors to present their grievances.

 Critical analysis of legal provisions involved

The critical question for consideration was whether the successors of the original signatory can avail the rights bestowed upon the ‘Ruler’ rooted in the 26^th Constitutional Amendment of 1971. The 1971 Amendment put an end to the Privy Purses and further inserted Article 366(22) which confined the definition the term ‘Ruler’ to only the person recognised prior to the Amendment. The State argued that owing to the Constitutional Amendment, the title of ‘Ruler’ under the TCHRI Act ceases to hold relevance and any successor of the original signatory is not empowered by law to claim the title.

The Supreme Court, in its wisdom, has sided with the Royal Family and has opined that the Kerala High Court’s judgement was erroneous, incorrect and violative of the historical spirit of the original covenant (signed in 1949). The Supreme Court held that Article VIII of the covenant establishes the special connection of the royal family with the temple which has further been given statutory backing by the TCHRI Act. The ‘special relation’ of the royal family with the temple is explained by the Supreme Court to be in the nature of “Shebait”- which effectively places the royal family as the earthly custodian of the deity and gives them financial and administrative rights in connection to the deity. The Apex Court further remarked that the Shebait rights exists in a historical context and are rooted in the Hindu tradition and customary law of the region and as such, cannot be abridged by an act of the Parliament. Holding this reasoning, the Court ordered that the rights of the royal family remain unaffected by the Constitutional Amendment and extends to all the successors of the original signatory, in perpetuity, and will be passed on and devolved only as per established customs. The Court also decided that the association of the royal family with the temple is independent of the title of being the ruler of the State and it purely exists in Shebaitship. Unless the Shebaitship ceases to be operative in consonance with established customs, no escheat will lie in favour of the State Government.

The Supreme Court, realising the public nature of the temple and the large amounts of wealth it holds, ordered the constitution of two committees- an Advisory Committee and an Administrative Committee. These committees will have members nominated by both the Union and the State Governments, in addition to the members appointed by the royal family. The major responsibilities of the committees will be to aid and advise the day-to-day functioning of the temple. The committees were finalised by the Supreme Court by making minute alterations to the structure proposed by the royal family. The Court has further recognised the rights of the Chief Thantri of the temple and has directed that all rituals and religious practices should be performed in accordance with his instructions and guidance. The Court has further granted Chief Thantri rights over the temporal matters concerning the temple.

Conclusion

The Supreme Court’s verdict in the Temple case reverses the perceived injustices on the Royal Family and devotees of the Temple, following the Kerala High Court’s decision in 2011. By restoring the age-old tradition, the Supreme Court has upheld the religious rights of a community of people who wish to be governed by their traditions without interference from the State Governments. The Kerala High Court, in its decision, ordered for the opening of vaults of the temples which are said to house innumerable treasures. Opening of one such vaults was strongly protested against by the Royal Family and the local population, as it is believed to house an ancient curse which would invite divine calamity on Earth. With the restoration of rights to the Royal Family and the setting up of the two committees, all decisions with regards to the treasures of the vault also rest with them. The decision, apart from holding historical relevance for the Royal Family, is also being touted as a positive step in the direction of freeing Hindu temples and institutions from excessive State control.

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

Editor: Astha Garg, Junior Editor, Lexlife India