Constitutional Law II Case Final Summary

REFERENCE MATERIAL………………………………………………….Dr.
Akash Anand
I. Jatya Pal Singh v.Union of India (2013) 6SCC 452.
46. In our opinion, the aforesaid condition would make no difference to the legal status of the
appellants within VSNL. It was only an assurance that the rights to pension which had already accrued
to them on the basis of their service in OCS shall be protected. Undoubtedly, this assurance was
accepted by VSNL on 1st May, 1992. It was, in fact, incorporated in the rules governing the service
conditions of these employees in VSNL. It is a matter of record that with effect from 13th February,
2002, the shareholding of Government of India is 26.97 %. Soon thereafter, the total shareholding of
TATA Group in VSNL increased to 44.99% of the paid up share capital in 2002. It is also an accepted
fact that shareholding of the TATA Group in VSNL is 15.11%. It is also noteworthy that since 2002,
VSNL was a TATA Group Company and accordingly on 28th January, 2008 its name was changed
to ‘TATA Communication Limited”. In our opinion, the aforesaid facts make it abundantly clear that
the Government of India did not have sufficient interest in the control of either management or policy
making functions of TATA Communication Limited.
47. Merely because TATA Communication Limited is performing the functions which were initially
performed by OCS would not be sufficieAnt to hold that it is performing a public function. It has
been categorically held in the case of Ramana Dayaram Shetty (supra) if only the functions of the
Corporation are of public importance and closely related to Government functions, it would be a
relevant factor in classifying the Corporation as an instrumentality or agency of the Government.
52. These observations make it abundantly clear that in order for it to be held that the body is
performing a public function, the appellant would have to prove that the body seeks to achieve some
collective benefit for the public or a section of public and accepted by the public as having authority
to do so. In the present case, as noticed earlier, all telecom operators are providing commercial service
for commercial considerations. Such an activity in substance is no different from the activities of a
bookshop selling books. It would be no different from any other amenity which facilitates the
dissemination of information or DATA through any medium. We are unable to appreciate the
submission of the learned counsel for the appellants that the activities of TCL are in aid of enforcing
the fundamental rights under Article 21(1)(a) of the Constitution. The recipients of the service of the
telecom service voluntarily enter into a commercial agreement for receipt and transmission of
information. The function performed by VSNL/TCL cannot be put on the same pedestal as the
function performed by private institution in imparting education to children. It has been repeatedly
held by this Court that private education service is in the nature of sovereign function which is
required to be performed by the Union of India. Right to education is a fundamental right for children
upto the age of 14 as provided in Article 21A. Therefore, reliance placed by the learned counsel for
the appellants on the judgment of this Court in Andi Mukta (supra) would be of no avail. In any event,
in the aforesaid case, this Court was concerned with the non-payment of salary to the teachers by the
Andi Mukta Trust. In those circumstances, it was held that the Trust is duty bound to make the
payment and, therefore, a writ in the nature of mandamus was issued. Mr. C.U.Singh, senior counsel
relied on Binny Ltd. (supra) in support of the submissions that VSNL/TCL is not performing a public
function. In our opinion, the observations made by this Court in the aforesaid judgment are fully
applicable in the facts and circumstances of this case.
II. BCCI v. Cricket Association of Bihar (2015)3 SCC 251.
9. We have given our anxious consideration to the submissions made at the Bar. We may, before
adverting to the rival submissions urged before us, point out two distinct aspects that need to be kept
in mind while addressing the issues raised before us. The first is that the proceedings that led to the
setting-up of the Committee arose out of a public interest petition. The directions issued by this Court
1
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REFERENCE MATERIAL………………………………………………….Dr. Akash Anand
proceeded on a clear finding recorded by this Court that even when BCCI is not a state within the
meaning of Article 12 of the Constitution of India, it is amenable to the jurisdiction of the High Court
since it discharges public functions. That part of the controversy stands concluded by judgment of
this Court in the earlier round and cannot be reopened no matter Mr. Venugopal made a feeble attempt
to do so by making a reference to the Constitution Bench judgment of this Court in Zee Telefilms
Ltd. v. Union of India (2005) 4 SCC 649. All that we need mention is that while holding BCCI to be
amenable to the writ jurisdiction of the Courts, we have taken note of the pronouncement of this Court
in Zee Telefilms case (supra).
III. Dr. Janet Jeyapaul v. SRM University (2015) 16 SCC530
21. Applying the aforesaid principle of law to the facts of the case in hand, we are of the considered
view that the Division Bench of the High Court erred in holding that respondent No. 1 is not subjected
to the writ jurisdiction of the High Court under Article 226 of the Constitution. In other words, it
should have been held that respondent No.1 is subjected to the writ jurisdiction of the High Court
under Article 226 of the Constitution.
22. This we say for the reasons that firstly, respondent No. 1 is engaged in imparting education in
higher studies to students at large. Secondly, it is discharging "public function" by way of imparting
education. Thirdly, it is notified as a "Deemed University" by the Central Government under Section
3 of the UGC Act. Fourthly, being a “Deemed University”, all the provisions of the UGC Act are
made applicable to respondent No. 1, which inter alia provides for effective discharge of the public
function - namely education for the benefit of public. Fifthly, once respondent No. 1 is declared as
“Deemed University" whose all functions and activities are governed by the UGC Act, alike other
universities then it is an "authority" within the meaning of Article 12 of the Constitution. Lastly, once
it is held to be an "authority" as provided in Article 12 then as a necessary consequence, it becomes
amenable to writ jurisdiction of High Court under Article 226 of the Constitution.
23. In the light of foregoing discussion, we cannot concur with the finding rendered by the Division
Bench and accordingly while reversing the finding we hold that the appellant's writ petition
under Article 226 of the Constitution against respondent No. 1 is maintainable.
IV. Bashesher Nath v. CIT AIR 1959 SC 149
The last argument advanced by the learned Attorney General is that if there had been a breach of the
assessee's fundamental right by subjecting him to a discriminatory procedure laid down in
the Investigation Act, the asessee, by voluntarily entering into a settlement, must be taken to have
waived such breach and cannot now be permitted to set up his fundamental right. Immediately two
questions arise for consideration, namely, (1) whether the assessee could waive the breach of the
fundamental right in question and (2) whether in the facts and circumstances of this case he had
actually done so.
Re. (1): In Behram Khurshed Pesikaka v. State of Bombay (2) there was a general discussion whether
a (1) [1953] S.C.R. 589. (2) [1955] 1 S.C.R. 613.right could be waived. At page 638 Venkatarama
Aiyar, J., observed:-
" The question is, what is the legal effect of a statute being declared unconstitutional. The answer to
it depends on two considerations firstly does the constitutional prohibition which has been infringed
affect the competence of the Legislature to enact the law or does it merely operate as a check on the
exercise of a power which is- within its competence; and secondly, if it is merely a check, whether it
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is enacted for the benefit of individuals or whether it is imposed for the benefit of the general public
on grounds of public policy. If the statute is beyond the competence of the Legislature, as for example,
when a State enacts a law which is within the exclusive competence of the Union, it would be a
nullity. That would also be the position when a limitation is imposed on the legislative power in the
interests of the public, as, for instance, the provisions in Chapter XIII of the Constitution relating to
inter-State trade and commerce. But when the law is within the competence of the Legislature and
the unconstitutionality arises by reason of its repugnancy to provisions enacted for the benefit of
individuals, it is not a nullity but is merely unenforceable. Such an unconstitutionality can be waived
and in that case the law becomes enforceable. In America this principle is well settled. (Vide Cooley
on Constitutional Limitations, Volume 1, pages 368 to 371 ; Willis on Constitutional Law at pages
524, 531, 542 and 558 ; Rottschaefer on Constitutional Law at pages 28 and 29-30)."
After referring to three decisions of the American Supreme Court which are also now relied on by
the learned Attorney General, the learned Judge concluded as follows:- " The position must be the
same under our Constitution when a law contravenes a prescription intended for the benefit of
individuals. The rights guaranteed under Art. 19 (1) (f) are enacted for the benefit of owners of
properties and when a law is found to infringe that provision, it is open to any person whose rights
have been infringed to waive it and when there is waiver there is no legal impediment to the
enforcement of the law. It would be otherwise if the statute was a nullity; in which case it can neither
be waived nor enforced. If then the law is merely unenforceable and can take effect when waived it
cannot be treated as non and as effaced out of the statute book. It is scarcely necessary to add that the
question of waiver is relevant to the present controversy not as bearing on any issue of fact arising
for determination in this case but as showing the nature of the right declared under Art. 19 (1) (f) and
the effect in law of a statute contravening it." When the case came up before the court on review
Mahajan, C. J., with the concurrence of Mukherjea, Vivian Bose, and Ghulam Hassan, JJ., said at
page 653:-
"In our opinion, the doctrine of waiver enunciated by some American Judges in construing the
American Constitution cannot be introduced in our Constitution without a fuller discussion of the
matter. No inference in deciding the case should have been raised on the basis of such a theory. The
learned Attorney General when questioned about the doctrine did not seem to be very enthusiastic
about it. Without finally expressing an opinion on this question we are not for the moment convinced
that this theory has any relevancy in construing the fundamental rights conferred by Part III of our
Constitution. We think that the rights described as fundamental rights are a necessary consequence
of the declaration in the preamble that the people of India have solemnly resolved to constitute India
into a sovereign democratic republic and to secure to all its citizens justice, social, economic and
political; liberty of thought, expression belief, faith and worship; equality of status and of opportunity.
These fundamental rights have not been put in the Constitution merely for individual benefit, though
ultimately they come into operation in considering individual rights. They have been put there as a
matter of public policy and the doctrine of waiver can have no application to provisions of law which
have been enacted as a matter of constitutional policy.
Reference to some of the Articles, inter alia, Arts. 15 (1), 20, 21, makes the proposition quite plain.
A citizen cannot get discrimination by telling the State " You can discriminate ", or get convicted by
waiving the protection given under Arts. 20 and 21."
V. State of Bombay v. F.N. Balsara AIR 1951 SC 318
The only other point which remains to be decided is whether as a result of some of the sections of the
Act having been declared to be invalid, what is left of the Act should survive or whether the whole
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Act should be declared to be invalid. This argument was raised before the High Court also, but it was
rejected and it was held that it was not possible on a fair review of the whole matter to assume that
the legislature would not have enacted the part which remained without enacting the part that was
held to be bad. It is to be noted that upon the findings of the High Court, the question should have
assumed a more serious aspect than it presents now, because the High Court has declared several
important sections of the Act including the definition of "liquor" to be ultra vires the legislature. I
have now examined those sections and have held many of them to be valid. The provisions which are
in my view invalid cannot affect the validity of the Act as a whole. The test to be applied when an
argument like the one addressed in this case is raised has been very correctly summed up by the Privy
Council in Attorney-General for Alberta v. Attorney- General for Canada(1) in these words:--
" The real question is whether what remains is so inextricably bound up with the part declared invalid
that what remains cannot independently survive or. as it has sometimes been put, whether on a fair
review of the whole matter it can be assumed that the legislature would have enacted what survives
without enacting the part that is ultra vires at all."
It is quite clear that the provisions held by me to be invalid are not inextricably bound up with the (1)
[1947] A.C. 505 at 518., remaining provisions of the Act, and it is difficult to hold that the legislature
would not have enacted the Act at all without including that part which is found to be ultra vires. The
Act still remains substantially the Act as it was passed, i.e., an Act amending and consolidating the
law relating to the promotion and enforcement of the policy of prohibition and also the Abkari law in
the Province of Bombay.
VI. RMDC v. Union of India AIR 1957 SC 628
That is true; but that the principle of severability had the approval of that Court clearly appears from
the following observations of Sir Maurice Gwyer C. J.: "It should not however be thought that the
Court has overlooked cases cited to it in which the same words have been applied in an Act to a
number of purposes, some within and some without the power of the Legislature, and the whole Act
had been held to be bad. If the restriction of the general words to purposes within the power of the
Legislature would be to leave an Act with nothing or next to nothing in it, or an Act different in kind,
and not merely in degree, from an Act in which the general words were given the wider meaning,
then it is plain that the Act as a whole must be ’held invalid, because in such circumstances it is
impossible to assert with any confidence that the Legislature intended the general words which it has
used to be construed only in the narrower sense. If the Act -is to be upheld, it’ must remain, even
when a narrower meaning is given to the general words, an Act which is complete, intelligible and
valid and which can be executed by itself;’ Wynes: Legislative and Executive Powers in, Australia,
p. 51, citing Presser v. Illinois (2). " There is nothing in these observations to. support the contention
of the petitioners that the doctrine of severability applies only when the legislation is in (1) [1891]
A.C. 455. (2) (1886) 116 U.S. 252. 943 excess of the competence of the legislature quoad its subject-
matter, and not when it infringes some constitutional prohibitions.
This decision is clear authority that the principle of severability is applicable even when the partial
(1) [1951] S.C.R. 682. 944 invalidity of the Act arises by reason of its contravention of constitutional
limitations. It is argued for the petitioners that in that case the legislature had through the rules framed
under the statute classified medicinal and toilet preparations as a separate category, and had thus
evinced an intention to treat them as severable, that no similar classification had been made in the
present Act, and that therefore the decision in question does not help the respondent. But this is to
take too narrow a view of the decision. The doctrine of severability rests, as will presently be shown,
on a presumed intention of the legislature that if a part of a statute turns out to be void, that should
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not affect the validity of the rest of it, and that that intention is to be ascertained from the terms of the
statute. It is the true nature of the subject-matter of the legislation that is the determining factor, and
while a classification made in the statute might go far to support a conclusion in favour of severability,
the absence of it does not necessarily preclude it. It is a feature usual in latterday legislation in
America to enact a clause that the invalidity of any part of the law shall -not render the rest of it void,
and it has been held that such a clause furnishes only prima facie evidence of severability, which must
in the last resort be decided on an examination of the provisions of the statute. In discussing the effect
of a severability clause, Brandies J. observed in Dorchy v. State of Kansas (1) that it "provides, a rule
of construction, which may sometimes aid in determining that intent. But it is an aid merely; not an
inexorable command". The weight to be attached to a classification of subjects made in the statute
itself cannot, in our opinion, be greater than that of a severability clause. If the decision in The State
of Bombay and another v. F. N. Balsara(2) is examined in the light of the above discussion, it will be
seen that while there is a reference in the judgment to the fact that Medicinal and toilet preparations
are treated separately by the legislature, that is followed by an independent finding that they are
severable. In other words, the decision as to severability was reached the separability in fact of the
subjects dealt with by the legislation and the classification made in the rule merely furnished support
to it. Then, there are the observations of Patanjali Sastri C.J. in The State of Bombay v. The United
Motors (India) Ltd.(1). Dealing with the contention that a law authorising the imposition of a tax on
sales must be declared to be wholly void because it was bad in part as transgressing constitutional
limits, the learned Chief Justice observed (at p. 1099): "It is a sound rule to extend severability to
include separability in enforcement in such cases, and we are of opinion that the principle should be
applied in dealing with taxing statutes in this country. "
VII. Shayara Bano v. Union of India (2017) 9 SCC 1
156….We are therefore constrained to accept the contention advanced by learned counsel for the
respondents, that the proposition canvassed on behalf of the petitioners, namely, that the Muslim
Personal Law (Shariat) Application Act, 1937 conferred statutory status, on the questions/subjects
governed by the Shariat Act, cannot be accepted. That being the position, Muslim ‘personal law’ –
‘Shariat’ cannot be considered as a State enactment.
157….Having concluded as above, we must also hold (-which we do), that the practices of Muslim
‘personal law’ – ‘Shariat’ cannot be required to satisfy the provisions contained in Part III –
Fundamental Rights, of the Constitution, applicable to State actions, in terms of Article 13 of the
Constitution.
158. Since ‘talaq-e-biddat’ remains a matter of ‘personal law’, applicable to a Sunni Muslim
belonging to the Hanafi school, can it be declared as not enforceable in law, as it violates the
parameters expressed in Article 25 (which is also one of the pointed contentions of those supporting
the petitioners case)?
163…It would be pertinent to mention, that the constitutional protection to tenets of ‘personal law’
cannot be interfered with, as long as the same do not infringe “public order, morality and health”,
and/or “the provisions of Part III of the Constitution”. This is the clear position expressed in Article
25(1).
164…It is not possible for us to accept, that the practice of ‘talaq-e-biddat’ can be set aside and held
as unsustainable in law for the three defined purposes expressed in Article 25(1), namely, for reasons
of it being contrary to public order, morality and health. Viewed from any angle, it is impossible to
conclude, that the practice impinges on ‘public order’, or for that matter on ‘health’. We are also
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satisfied, that it has no nexus to ‘morality’, as well. Therefore, in our considered view, the practice of
‘talaq-e-biddat’ cannot be struck down on the three non-permissible/prohibited areas which Article
25 forbids even in respect of ‘personal law’.
165. The only remaining ground on which the challenge to ‘talaq-e-biddat’ under Article 25 could be
sustainable is, if ‘talaq-e-biddat’ can be seen as violative of the provisions of Part III of the
Constitution…‘Personal law’, being a matter of religious faith, and not being State action, there is no
question of its being violative of the provisions of the Constitution of India, more particularly, the
provisions relied upon by the petitioners, to assail the practice of ‘talaq-e-biddat’, namely, Articles
14, 15 and 21 of the Constitution.
169…Constituent Assembly debates, with reference to Article 25 (-draft Article 19). The debates
reveal that the members of the Constituent Assembly understood a clear distinction between ‘personal
law’ and the ‘civil code’. ‘Personal law’ was understood as based on the practices of members of
communities. It was to be limited to the community itself, and would not affect members of other
communities. The ‘civil code’ on the other hand, had an unlimited reach. The ‘civil code’ was
understood to apply to every citizen of the land, to whatever community he may belong. So far as
‘personal law’ is concerned, it was recognized as arising out of, practices followed by members of
particular communities, over the ages.….Sarla Mugdal Case…. “It has been further argued that by
conferring the additional right to propagate a particular faith or religion the door is opened for all
manner of troubles and conflicts which would eventually paralyse the normal life of the State. We
would say at once that this conception of a secular State is wholly wrong. By secular State, as we
understand it, is meant that the State is not going to make any discrimination whatsoever on the
ground of religion or community against any person professing any particular form of religious faith.
This means in essence that no particular religion in the State will receive any State patronage
whatsoever. The State is not going to establish, patronise or endow any particular religion to the
exclusion of or in preference to others and that no citizen in the State will have any preferential
treatment or will be discriminated against simply on the ground that he professed a particular form of
religion. ….. At the same time we must be very careful to see that this land of ours we do not deny to
anybody the right not only to profess or practise but also to propagate any particular religion.
…..Therefore I feel that the Constitution has rightly provided for this not only as a right but also as a
fundamental right. In the exercise of this fundamental right every community inhabiting this State
professing any religion will have equal right and equal facilities to do whatever it likes in accordance
with its religion provided it does not clash with the conditions laid down here.”
170. The debates in the Constituent Assembly with reference to Article 25, leave no room for any
doubt, that the framers of the Constitution were firm in making ‘personal law’ a part of the
fundamental rights. With the liberty to the State to provide for social reform. It is also necessary to
notice at this stage, that the judgment in the Valsamma Paul case, cannot be the basis for consideration
in the present controversy, because it did not deal with issues arising out of ‘personal law’ which
enjoy a constitutional protection. What also needs to be recorded is, that the judgment in the John
Vallamattom case , expresses that the matters of the nature, need to be dealt with through legislation,
and as such, the view expressed in the above judgment cannot be of any assistance to further the
petitioners’ cause…..All this leads to the clear understanding, that the Constitution requires the State
to provide for a uniform civil code, to remedy and assuage, the maladies expressed in the submissions
advanced by the learned Attorney General.
172. There can be no doubt, that the ‘personal law’ has been elevated to the stature of a fundamental
right in the Constitution. And as such, ‘personal law’ is enforceable as it is. All constitutional Courts,
are the constitutional guardians of all the Fundamental Rights (– included in Part III of the
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Constitution). It is therefore the constitutional duty of all Courts to protect, preserve and enforce, all
fundamental rights, and not the other way around. It is judicially unthinkable for a Court, to accept
any prayer to declare as unconstitutional (-or unacceptable in law), for any reason or logic, what the
Constitution declares as a fundamental right. Because, in accepting the prayer(s), this Court would be
denying the rights expressly protected under Article 25.
182…A perusal of the details pertaining to legislation in India with regard to matters pertaining to
‘personal law’, and particularly to issues of marriage and divorce for different religious communities
reveals, that all issues governed by ‘personal law’, were only altered by way of legislation. There is
not a singular instance of judicial intervention, brought to our notice except a few judgments rendered
by High Courts (-for details, refer to Part-6 – Judicial pronouncements, on the subject of ‘talaq-e-
biddat’). These judgments, however, attempted the interpretative course, as against an invasive
one……Therefore in continuation of the conclusion already recorded, namely, that it is the
constitutional duty of all courts to preserve and protect ‘personal 262 law’ as a fundamental right, any
change thereof, has to be only by legislation under Articles 25(2) and 44, read with entry 5 of the
Concurrent List contained in the Seventh Schedule to the Constitution.
191. The whole nation seems to be up in arms. There is seemingly an overwhelming majority of
Muslim-women, demanding that the practice of ‘talaq-e-biddat’ which is sinful in theology, be
declared as impermissible in law.
193. Religion is a matter of faith, and not of logic. It is not open to a court to accept an egalitarian
approach, over a practice which constitutes an integral part of religion. The Constitution allows the
followers of every religion, to follow their beliefs and religious traditions. The Constitution assures
believers of all faiths, that their way of life, is guaranteed, and would not be subjected to any
challenge, even though they may seem to others (-and even rationalists, practicing the same faith)
unacceptable, in today’s world and age. The Constitution extends this guarantee, because faith
constitutes the religious consciousness, of the followers. It is this religious consciousness, which
binds believers into separate entities. The Constitution endeavours to protect and preserve, the beliefs
of each of the separate entities, under Article 25.
197…Be that as it may, the question still remains, whether this is a fit case for us to exercise our
jurisdiction under Article 142, “…for doing complete justice …”, in the matter. The reason for us to
probe the possibility of exercising our jurisdiction under Article 142, arises only for one simple
reason, that all concerned are unequivocal, that besides being arbitrary the practice of ‘talaq-e-biddat’
is gender discriminatory.
199. In view of the position expressed above, we are satisfied, that this is a case which presents a
situation where this Court should exercise its discretion to issue appropriate directions under Article
142 of the Constitution. We therefore hereby direct, the Union of India to consider appropriate
legislation, particularly with reference to ‘talaq-e-biddat’.
200. Till such time as legislation in the matter is considered, we are satisfied in injuncting Muslim
husbands, from pronouncing ‘talaq-e-biddat’ as a means for severing their matrimonial relationship.
The instant injunction, shall in the first instance, be operative for a period of six months. If the
legislative process commences before the expiry of the period of six months, and a positive decision
emerges towards redefining ‘talaq-e-biddat’ (three pronouncements of ‘talaq’, at one and the same
time) – as one, or alternatively, if it is decided that the practice of ‘talaq-e-biddat’ be done away with
altogether, the injunction would continue, till legislation is finally enacted.
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VIII. Lt. Col Nitisha v. Union of India 2021 SCC Online SC
F Systemic Discrimination
42 At its heart, this case presents this Court with the opportunity to choose one of two competing
visions of the antidiscrimination guarantee embodied in Article 14 and 15(1) of the Constitution:
formal versus substantive equality. The formal conception of antidiscrimination law is captured well
by Anatole France’s observation: “The law, in its majestic equality, prohibits the rich and the poor
alike from sleeping under bridges, begging in the streets and stealing bread.”26
43 Under the formal and symmetric conception of antidiscrimination law, all that the law requires is
that likes be treated alike. Equality, under this conception, has no substantive underpinnings. It is
premised on the notion that fairness demands consistency in treatment.27 Under this analysis, the fact
that some protected groups are disproportionately and adversely impacted by the operation of the
concerned law or its practice, makes no difference. An apt illustration of this phenomenon would be
the United States’ Supreme Court’s judgment in Washington v. Davis28, which held that a facially
neutral qualifying test was not violative of the equal protection guarantee contained in the 14th
Amendment of the American Constitution merely because African-Americans disproportionately
failed the test.
44 On the other hand, under a substantive approach, the antidiscrimination guarantee pursues more
ambitious objectives. The model of substantive equality developed by Professor Sandra Fredman
views the aim of antidiscrimination law as being to pursue 4 overlapping objectives. She states as
follows:
“First, it aims to break the cycle of disadvantage associated with status or out-groups. This
reflects the redistributive dimension of equality. Secondly, it aims to promote respect for
dignity and worth, thereby redressing stigma, stereotyping, humiliation, and violence because
of membership of an identity group. This reflects a recognition dimension. Thirdly, it should
not exact conformity as a price of equality. Instead, it should accommodate difference and
aim to achieve structural change. This captures the transformative dimension. Finally,
substantive equality should facilitate full participation in society, both socially and politically.
This is the participative dimension.”
45 Indirect discrimination is closely tied to the substantive conception of equality outlined above.
The doctrine of substantive equality and anti stereotyping has been a critical evolution of the Indian
constitutional jurisprudence on Article 14 and 15(1). The spirit of these tenets have been endorsed in
a consistent line of authority by this Court. To illustrate, in Anuj Garg v. Hotel Association of India30,
this Court held that laws premised on sex-based stereotypes are constitutionally impermissible, in that
they are outmoded in content and stifling in means. The Court further held that no law that ends up
perpetuating the oppression of women could pass scrutiny. Barriers that prevent women from
enjoying full and equal citizenship, it was held, must be dismantled, as opposed to being cited to
validate an unjust status quo. In National Legal Services Authority v. Union of India 31, this Court
recognized how the patterns of discrimination and disadvantage faced by the transgender community
and enumerated a series of remedial measures that can be taken for their empowerment. In Jeeja
Ghosh v. Union of India32 and Vikash Kumar v. Union Public Service Commission33 this Court
recognized reasonable accommodation as a substantive equality facilitator.
46 The jurisprudence relating to indirect discrimination in India is still at a nascent stage. Having said
that, indirect discrimination has found its place in the jurisprudence of this Court in Navtej Singh
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Johar v. Union of India34, where one of us (Chandrachud J), in holding Section 377 of the Indian
Penal Code as unconstitutional insofar as it decriminalizes homosexual intercourse amongst
consenting adults, drew on the doctrine of indirect discrimination. This was in arriving at the
conclusion that this facially neutral provision disproportionately affected members of the LGBT
community. This reliance was in affirmation of the decision of the Delhi High Court in Naz
Foundation v. Government of NCT of Delhi35 which had relied on the ‘Declaration of Principles of
Equality’ issued by the Equal Rights Trust Act in 2008 in recognizing that indirect discrimination
occurs “when a provision, criterion or practice would put persons having a status or a characteristic
associated with one or more prohibited grounds at a particular disadvantage compared with other
persons, unless that provision, criterion or practice is objectively justified by a legitimate aim, and
the means of achieving that aim are appropriate and necessary.”36 Similarly, this Court has
recognized the fashion in which discrimination operates by dint of “structures of oppression and
domination” which prevent certain groups from enjoying the full panoply of entitlements.37 The
focus in antidiscrimination enquiry, has switched from looking at the intentions or motive of the
discriminator to examining whether a rule, formally or substantively, “contributes to the
subordination of a disadvantaged group of individuals” 38.
47 Indirect discrimination has also been recognized by the High Courts in India39. For instance, in
the matters of public sector employment, the Delhi High Court in Inspector (Mahila) Ravina v. Union
of India40 and in Madhu v. Northern Railways41, has upheld challenges to conditions of
employment, which though appear to be neutral, have an adverse effect on one section of the society.
Bhat, J., while analyzing the principles of indirect discrimination in Madhu (supra), held: “20. This
Court itself has recognised that actions taken on a seemingly innocent ground can in fact have
discriminatory effects due to the structural inequalities that exist between classes. When the CRPF
denied promotion to an officer on the ground that she did not take the requisite course to secure
promotion, because she was pregnant, the Delhi High Court struck down the action as discriminatory.
Such actions would inherently affect women more than men. The Court in Inspector (Mahila) Ravina
v. Union of India W.P.(C) 4525/2014 stated, “A seemingly “neutral” reason such as inability of the
employee, or unwillingness, if not probed closely, would act in a discriminatory manner, directly
impacting her service rights. That is exactly what has happened here: though CRPF asserts that
seniority benefit at par with the petitioner's colleagues and batchmates (who were able to clear course
No. 85) cannot be given to her because she did not attend that course, in truth, her “unwillingness”
stemmed from her inability due to her pregnancy.”” (emphasis supplied)
48 We must clarify here that the use of the term ‘indirect discrimination’ is not to refer to
discrimination which is remote, but is, instead, as real as any other form of discrimination. Indirect
discrimination is caused by facially neutral criteria by not taking into consideration the underlying
effects of a provision, practice or a criterion.
52 Another excellent formulation of the doctrine can be found in the opinion of Advocate General
Maduro of the Court of Justice of the European Union (CJEU). He notes that the distinctive attribute
of direct discrimination is that the discriminator explicitly relies on a suspect classification (prohibited
ground of discrimination) to act in a certain way. Such classification serves as an essential premise
of the discriminator’s reasoning. On the other hand, in indirect discrimination, the intention of the
discriminator, and the reasons for his actions are irrelevant. He pertinently observes: “In fact, this is
the whole point of the prohibition of indirect discrimination: even neutral, innocent or good faith
measures and policies adopted with no discriminatory intent whatsoever will be caught if their impact
on persons who have a particular characteristic is greater than their impact on other persons.”
9
53 Thus, as long as a court’s focus is on the mental state underlying the impugned action that is
allegedly discriminatory, we are in the territory of direct discrimination. However, when the focus
switches to the effects of the concerned action, we enter the territory of indirect discrimination. An
enquiry as to indirect discrimination looks, not at the form of the impugned conduct, but at its
consequences. In a case of direct discrimination, the judicial enquiry is confined to the act or conduct
at issue, abstracted from the social setting or background fact-situation in which the act or conduct
takes place. In indirect discrimination, on the other hand, the subject matter of the enquiry is the
institutional or societal framework within which the impugned conduct occurs. The doctrine seeks to
broaden the scope of antidiscrimination law to equip the law to remedy patterns of discrimination that
are not as easily discernible.
F.6 Evolving an analytical framework for indirect discrimination in India:
66 A study of the above cases and scholarly works gives rise to the following key learnings. First, the
doctrine of indirect discrimination is founded on the compelling insight that discrimination can often
be a function, not of conscious design or malicious intent, but unconscious/implicit biases or an
inability to recognize how existing structures/institutions, and ways of doing things, have the
consequence of freezing an unjust status quo. In order to achieve substantive equality prescribed
under the Constitution, indirect discrimination, even sans discriminatory intent, must be prohibited.
67 Second, and as a related point, the distinction between direct and indirect discrimination can
broadly be drawn on the basis of the former being predicated on intent, while the latter is based on
effect (US, South Africa, Canada). Alternatively, it can be based on the fact that the former cannot be
justified, while the latter can (UK). We are of the considered view that the intention versus effects
distinction is a sound jurisprudential basis on which to distinguish direct from indirect discrimination.
This is for the reason that the most compelling feature of indirect discrimination, in our view, is the
fact that it prohibits conduct, which though not intended to be discriminatory, has that effect. As the
Canadian Supreme Court put it in Ontario HRC (supra), requiring proof of intention to establish
discrimination puts an “insuperable barrier in the way of a complainant seeking a remedy.”66 It is
this barrier that a robust conception of indirect discrimination can enable us to counteract.
68 Third, on the nature of evidence required to prove indirect discrimination, statistical evidence that
can establish how the impugned provision, criteria or practice is the cause for the disproportionately
disadvantageous outcome can be one of the ways to establish the play of indirect discrimination. As
Professor Sandra Fredman notes, “Aptitude tests, interview and selection processes, and other
apparently scientific and neutral measures might never invite scrutiny unless data is available to
dislodge these assumptions.”67 Consistent with the Canadian Supreme Court’s approach in Fraser
(supra), we do not think that it would be wise to lay down any quantitative thresholds for the nature
of statistical disparity that must be established for a claimant to succeed. Equally, we do not think
that an absolutist position can be adopted as to the nature of evidence that must be brought forth to
succeed in a case of indirect discrimination. The absence of any statistical evidence or inability to
statistically demonstrate exclusion cannot be the sole ground for debunking claims of indirect
discrimination. This was clarified by the European Court of Human Rights in a case concerning
fifteen Croatians of Roma origin claiming racial discrimination and segregation in schools with
Roma-only classes. In assessing the claims of the fifteen Croatians, the court observed that indirect
discrimination can be proved without statistical evidence68. Therefore, statistical evidence
demonstrating patterns of exclusion, can be one of the ways to prove indirect discrimination.
69 Fourth, insofar as the fashion in which the indirect discrimination enquiry must be conducted, we
think that the two-stage test laid down by the Canadian Supreme Court in Fraser (supra) offers a well-
10
structured framework of analysis as it accounts for both the disproportionate impact of the impugned
provision, criteria or practice on the relevant group, as well as the harm caused by such impact. It
foregrounds an examination of the ills that indirect discrimination seeks to remedy. 70 Fifth and
finally, while assessing the justifiability of measures that are alleged to have the effect of indirect
discrimination, the Court needs to return a finding on whether the narrow provision, criteria or
practice is necessary for successful job performance. In this regard, some amount of deference to the
employer/defendant’s view is warranted. Equally, the Court must resist the temptation to accept
generalizations by defendants under the garb of deference and must closely scrutinize the proffered
justification. Further, the Court must also examine if it is possible to substitute the measures with less
discriminatory alternatives. Only by exercising such close scrutiny and exhibiting attentiveness to the
possibility of alternatives can a Court ensure that the full potential of the doctrine of indirect
discrimination is realized and not lost in its application.
77. Therefore, an analysis of discrimination, with a view towards its systemic manifestations (direct
and indirect), would be best suited for achieving our constitutional vision of equality and
antidiscrimination. Systemic discrimination on account of gender at the workplace would then
encapsulate the patriarchal disadvantage that permeates all aspects of her being from the outset,
including reproduction, sexuality and private choices which operate within an unjust structure. In
propounding this analysis, this Court is conscious of the practical limitations of every framework to
understanding workforces, considering the bulk of litigation against systemic discrimination, would
be from members of an organized and formal workforce who would have the wherewithal and
evidence of patterns or practices to bolster their claims. For the laboring class in India, which is
predominantly constituted by members facing multiple axels of marginalization, litigating their right
to work with equality and dignity may be a distant dream. However, it is our earnest hope, that a
vision of systemic discrimination, would aid members of even informal workforces who, in addition
to battling precarity at their places of work, will be able to assert a right to equality and dignity. A
framework that would situate their discrimination, against systemic societal patterns of discrimination
that are constituted and compounded by social and economic structures, would help in addressing
several fractures that are contributing to inequality in our society.
IX. Rohtas Bhankar v. Union of India (2014) 8 SCC 872
It is important to note here that constitutional validity of Article 16(4A) came up for consideration
before the Constitution Bench in the case of M. Nagaraj4. In paras 97 to 99 (page 267) of the report,
the Constitution Bench observed:
97. As stated above, clause (4-A) of Article 16 is carved out of clause (4) of Article 16. Clause (4-A)
provides benefit of reservation in promotion only to SCs and STs. In S. Vinod Kumar v. Union of
India this Court held that relaxation of qualifying marks and standards of evaluation in matters of
reservation in promotion was not permissible under Article 16(4) in view of Article 335 of the
Constitution. This was also the view in Indra Sawhney.
98. By the Constitution (Eighty-second Amendment) Act, 2000 a proviso was inserted at the end of
Article 335 of the Constitution which reads as under :
“Provided that nothing in this article shall prevent in making of any provision in favour of the
members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any
examination or lowering the standards of evaluation, for reservation in matters of promotion to any
class or classes of services or posts in connection with the affairs of the Union or of a State.”
99. This proviso was added following the benefit of reservation in promotion conferred upon SCs and
STs alone. This proviso was inserted keeping in mind the judgment of this Court in Vinod Kumar
which took the view that relaxation in matters of reservation in promotion was not permissible under
Article 16(4) in view of the command contained in Article
11
335. Once a separate category is carved out of clause (4) of Article 16 then that category is being
given relaxation in matters of reservation in promotion. The proviso is confined to SCs and STs alone.
The said proviso is compatible with the scheme of Article 16(4-A).
8. The conclusions recorded by the Constitution Bench in M. Nagaraj4 are also relevant and they read
as under:
121. The impugned constitutional amendments by which Articles 16(4-A) and 16(4-B) have been
inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the
controlling factors or the compelling reasons, namely, backwardness and inadequacy of
representation which enables the States to provide for reservation keeping in mind the overall
efficiency of the State administration under Article 335. These impugned amendments are confined
only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling
limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-
classification between OBCs on one hand and SCs and STs on the other hand as held in Indra
Sawhney, the concept of post-based roster with inbuilt concept of replacement as held in R.K.
Sabharwal.
122. We reiterate that the ceiling limit of 50%, the concept of creamy layer and the compelling
reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency
are all constitutional requirements without which the structure of equality of opportunity in Article
16 would collapse.
123. However, in this case, as stated above, the main issue concerns the “extent of reservation”. In
this regard the State concerned will have to show in each case the existence of the compelling reasons,
namely, backwardness inadequacy of representation and overall administrative efficiency before
making provision for reservation. As stated above, the impugned provision is an enabling provision.
The State is not bound to make reservation for SCs/STs in matters of promotions. However, if they
wish to exercise their discretion and make such provision, the State has to collect quantifiable data
showing backwardness of the class and inadequacy of representation of that class in public
employment in addition to compliance with Article 335. It is made clear that even if the State has
compelling reasons, as stated above, the State will have to see that its reservation provision does not
lead to excursiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend
the reservation indefinitely.
124. Subject to the above, we uphold the constitutional validity of the Constitution (Seventy-Seventh
(Amendment) Act;1995: the Constitution (Eighty- first Amendment) Act, 2000; the Constitution
(Eighty-second Amendment) Act, 2000 and the Constitution (Eighty-fifth Amendment) Act, 2001.
9. We do not think, it is necessary for us to deal with the width and scope of Article 16(4A) any
further. Insofar as Kuldeep Singh2 is concerned, we find that the matter was decided by this Court
having regard to the constitutional provision contained in Article 16(4A). The view taken by this
Court in Kuldeep Singh3 is in accord with constitutional scheme articulated in Article 16(4A). On
the other hand, in S. Vinod Kumar1, the Court failed to consider Article 16(4A). As a matter of fact,
Article 16(4A) was inserted in the Constitution to undo the observations in Indra Sawhney2 that there
can not be dilution of standards in matters of promotion.
10. We are in respectful agreement with the decision in Kuldeep Singh3 and approve the same.
Ordinarily, we would have sent the matter to the Regular Bench for disposal of the matter but having
regard to the nature of controversy and the fact that the Central Administrative Tribunal, Delhi (for
short “the Tribunal”) has followed S. Vinod Kumar1 which is not a good law and resultantly 1997
O.M. is also illegal, in our view, the agony of the appellants need not be prolonged as they are entitled
to the reliefs.
11. Consequently, civil appeals are allowed. The impugned order is set-aside. 1997 O.M. is declared
illegal. The respondents are directed to modify the results in the Section Officers/Stenographers
(Grade B/Grade-I) Limited Departmental Competitive Examination, 1996 by providing for
reservation and extend all consequential reliefs to the appellants, if not granted so far. No costs.
12
X. Jarnail Singh II v. Lachmi Narain Gupta 2022 SCC Online SC 96.
47. The State should justify reservation in promotions with respect to the cadre to which promotion
is made. Taking into account the data pertaining to a 'group’, which would be an amalgamation of
certain cadres in a service, would not give the correct picture of the inadequacy of representation of
SCs and STs in the cadre in relation to which reservation in promotions is sought to be made. Rosters
are prepared cadre-wise and not group-wise. Sampling method which was adopted by the Ratna
Prabha Committee might be a statistical formula appropriate for collection of data. However, for the
purpose of collection of quantifiable data to assess representation of SCs and STs for the purpose of
providing reservation in promotions, cadre, which is a part of a 'group’, is the unit and the data has to
be collected with respect to each cadre. Therefore, we hold that the conclusion of this Court in B.K.
Pavitra II (supra) approving the collection of data on the basis of 'groups’ and not cadres is contrary
to the law laid down by this Court in M. Nagaraj (supra) and Jarnail Singh (supra).
XI. BK Pavitra v. Union of India 2017 4 SCC 620.
26. It is clear from the above discussion that exercise for determining ‘inadequacy of representation’,
‘backwardness’ and ‘overall efficiency’, is a must for exercise of power under Article 16(4A). Mere
fact that there is no proportionate representation in promotional posts for the population of SCs and
STs is not by itself enough to grant consequential seniority to promotees who are otherwise junior
and thereby denying seniority to those who are given promotion later on account of reservation policy.
It is for the State to place material on record that there was compelling necessity for exercise of such
power and decision of the State was based on material including the study that overall efficiency is
not compromised. In the present case, no such exercise has been undertaken. The High Court
erroneously observed that it was for the petitioners to plead and prove that the overall efficiency was
adversely affected by giving consequential seniority to junior persons who got promotion on account
of reservation. Plea that persons promoted at the same time were allowed to retain their seniority in
the lower cadre is untenable and ignores the fact that a senior person may be promoted later and not
at same time on account of roster point reservation. Depriving him of his seniority affects his further
chances of promotion. Further plea that seniority was not a fundamental right is equally without any
merit in the present context. In absence of exercise under Article 16(4A), it is the ‘catch up’ rule
which is fully applies. It is not necessary to go into the question whether the concerned Corporation
had adopted the rule of consequential seniority.
XII. BK Pavitra v. Union of India. 2017(2)
The principle postulated in Nagaraj is that consequential seniority is a concept purely based in service
jurisprudence. The incorporation of consequential seniority would hence not violate the constitutional
mandate of equality. This being the true constitutional position, the protection of consequential
seniority as an incident of promotion does not require the application of the creamy layer test. Articles
16 (4A) and 16 (4B) were held to not obliterate any of the constitutional limitations and to fulfil the
width test. In the above view of the matter, it is evident that the concept of creamy layer has no
application in assessing the validity of the Reservation Act 2018 which is designed to protect
consequential seniority upon promotion of persons belonging to the SCs and STs.
XIII. Mukesh Kumar v. State of Uttarakhand (2020) 3 SCC 1
13
In view of the law laid down by this Court, there is no doubt that the State Government is not bound
to make reservations. There is no fundamental right which inheres in an individual to claim
reservation in promotions. No mandamus can be issued by the Court directing the State Government
to provide reservations. It is abundantly clear from the judgments of this Court in Indra Sawhney,
Ajit Singh (II), M. Nagaraj and Jarnail Singh (supra) that Article 16 (4) and 16 (4-A) are enabling
provisions and the collection of quantifiable data showing inadequacy of representation of Scheduled
Castes and Scheduled Tribes in public service is a sine qua non for providing reservations in
promotions. The data to be collected by the State Government is only to justify reservation to be made
in the matter of appointment or promotion to public posts, according to Article 16 (4) and 16 (4-A)
of the Constitution. As such, collection of data regarding the inadequate representation of members
of the Scheduled Castes and Schedules Tribes, as noted above, is a pre requisite for 20 | P a g e
providing reservations, and is not required when the State Government decided not to provide
reservations. Not being bound to provide reservations in promotions, the State is not required to
justify its decision on the basis of quantifiable data, showing that there is adequate representation of
members of the Scheduled Castes and Schedules Tribes in State services. Even if the under-
representation of Scheduled Castes and Schedules Tribes in public services is brought to the notice
of this Court, no mandamus can be issued by this Court to the State Government to provide reservation
in light of the law laid down by this Court in C.A. Rajendran (supra) and Suresh Chand Gautam
(supra). Therefore, the direction given by the High Court that the State Government should first
collect data regarding the adequacy or inadequacy of representation of Scheduled Castes and
Scheduled Tribes in Government services on the basis of which the State Government should take a
decision whether or not to provide reservation in promotion is contrary to the law laid down by this
Court and is accordingly set aside.
XIV. Dr. Jaishri Laxmanrao Patil v.The Chief Minister, Maharashtra 2021 SCC Online SC 36
2.
50. Applying the law laid down by this Court in Indra Sawhney (supra), we are of the prima facie
opinion that the State of Maharashtra has not shown any extraordinary situation for providing
reservations to Marathas in excess of 50 per cent. Maratha community which comprises of 30 per
cent of the population in the State of Maharashtra cannot be compared to marginalized sections of the
society living in far flung and remote areas. The State has failed to make out a special case for
providing reservation in excess of 50 per cent. Neither has any caution been exercised by the State in
doing so.
51. The factors termed as extraordinary and exceptional, justifying reservations in excess of 50 per
cent are those required for the purpose of providing reservations. The social, educational and
economic backwardness of a community, existence of quantifiable data relating to inadequacy of
representation of the community in public services and deprivation of the benefits flowing from
reservations to the community are not exceptional circumstances for providing reservations in excess
of 50 per cent. We are of the prima facie opinion that the High Court committed an error in treating
the above factors as circumstances which are extraordinary, warranting relaxation of the strict rule of
50 per cent. Admittedly, reservations provided to the Maratha community were implemented in
educational institutions for one academic year only. Implementation of the Act for admissions in
educational institutions and appointments to public posts during the pendency of these Appeals will
cause irreparable loss to the candidates belonging to the open category. It will be difficult to cancel
the admissions made in the educational institutions and appointments made to the public posts by
implementing the reservations as per the Act.
14
XV. Pramati Educational & Cultural Trust v. Union of India (2014) 8 SCC 1
We may now consider whether clause (5) of Article 15 of the Constitution has destroyed the right
under Article 19(1)(g) of the Constitution to establish and administer private educational institutions.
It is for the first time that this Court held in T.M.A. Pai Foundation (supra) that the establishment
and running of an educational institution “is occupation” within the meaning of Article 19(1)(g) of
the Constitution. In paragraph 20 of the majority judgment, while dealing with the four components
of the rights under Articles 19 and 26(a) of the Constitution in respect of private unaided non-minority
educational institutions, Kirpal, CJ. has held that education is per se regarded as an activity that is
charitable in nature. Kirpal, CJ. has further held in paragraphs 53 and 68:
“53. With regard to the core components of the rights under Articles 19 and 26(a), it must be held
that while the State has the right to prescribe qualifications necessary for admission, private unaided
colleges have the right to admit students of their choice, subject to an objective and rational procedure
of selection and the compliance with conditions, if any, requiring admission of a small percentage of
students belonging to weaker sections of the society by granting them freeships or scholarships, if not
granted by the Government…………………..” “68. It would be unfair to apply the same rules and
regulations regulating admission to both aided and unaided professional institutions. It must be borne
in mind that unaided professional institutions are entitled to autonomy in their administration while,
at the same time, they do not forego or discard the principle of merit. It would, therefore, be
permissible for the university or the Government, at the time of granting recognition, to require a
private unaided institution to provide for merit- based selection while, at the same time, giving the
management sufficient discretion in admitting students. This can be done through various methods.
For instance, a certain percentage of the seats can be reserved for admission by the management out
of those students who have passed the common entrance test held by itself or by the State/university
and have applied to the college concerned for admission, while the rest of the seats may be filled up
on the basis of counselling by the State agency. This will incidentally take care of poorer and
backward sections of the society. The prescription of percentage for this purpose has to be done by
the Government according to the local needs and different percentages can be fixed for minority
unaided and non-minority unaided and professional colleges. The same principles may be applied to
other non-professional but unaided educational institutions viz. graduation and postgraduation non-
professional colleges or institutes.
9. Thus, the content of the right under Article 19(1)(g) of the Constitution to establish and administer
private educational institutions, as per the judgment of this Court in T.M.A. Pai Foundation (supra),
includes the right to admit students of their choice and autonomy of administration, but this Court has
made it clear in T.M.A. Pai Foundation (supra) that this right and autonomy will not be affected if a
small percentage of students belonging to weaker and backward sections of the society were granted
freeships or scholarships, if not granted by the Government. This was the charitable element of the
right to establish and administer private educational institutions under Article 19(1)(g) of the
Constitution. Hence, the identity of the right of private educational institutions under Article
19(1)(g) of the Constitution as interpreted by this Court, was not to be destroyed by admissions from
amongst educationally and socially backward classes of citizens as well as the Scheduled Castes and
the Scheduled Tribes.
20. In P.A. Inamdar (supra), this Court speaking through Lahoti, CJ., was, however, of the view that
the judgment in T.M.A. Pai Foundation (supra) held that there was no power vested on the State under
clause (6) of Article 19 to regulate or control admissions in the unaided educational institutions so as
to compel them to give up a share of the available seats to the State or to enforce reservation policy
15
of the State on available seats in unaided professional institutions. This will be clear from paragraph
125 of the judgment in P.A. Inamdar (supra), which is extracted hereinbelow:
“125. As per our understanding, neither in the judgment of Pai Foundation nor in the Constitution
Bench decision in Kerala Education Bill which was approved by Pai Foundation is there anything
which would allow the State to regulate or control admissions in the unaided professional educational
institutions so as to compel them to give up a share of the available seats to the candidates chosen by
the State, as if it was filling the seats available to be filled up at its discretion in such private
institutions. This would amount to nationalisation of seats which has been specifically disapproved
in Pai Foundation. Such imposition of quota of State seats or enforcing reservation policy of the State
on available seats in unaided professional institutions are acts constituting serious encroachment on
the right and autonomy of private professional educational institutions. Such appropriation of seats
can also not be held to be a regulatory measure in the interest of the minority within the meaning
of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution.
Merely because the resources of the State in providing professional education are limited, private
educational institutions, which intend to provide better professional education, cannot be forced by
the State to make admissions available on the basis of reservation policy to less meritorious
candidates. Unaided institutions, as they are not deriving any aid from State funds, can have their
own admissions if fair, transparent, non-exploitative and based on merit.
21. The reasoning adopted by this Court in P.A. Inamdar (supra), therefore, is that the appropriation
of seats by the State for enforcing a reservation policy was not a regulatory measure and not
reasonable restriction within the meaning of clause (6) of Article 19 of the Constitution. As there was
no provision other than clause (6) of Article 19 of the Constitution under which the State could in any
way restrict the fundamental right under Article 19(1)(g) of the Constitution, Parliament made the
Constitution (Ninety-third Amendment) Act, 2005 to insert clause (5) in Article 15 of the
Constitution to provide that nothing in Article 19(1)(g) of the Constitution shall prevent the State
from making any special provision, by law, for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such
special provisions relate to their admission to educational institutions including private educational
institutions, whether aided or unaided by the State. Clause (5) in Article 15 of the Constitution, thus,
vests a power on the State, independent of and different from, the regulatory power under clause (6)
of Article 19, and we have to examine whether this new power vested in the State which enables the
State to force the charitable element on a private educational institution destroys the right
under Article 19(1)(g) of the Constitution.
Parliament has stepped in and in exercise of its amending power under Article 368 of the Constitution
inserted clause (5) in Article 15 to enable the State to make a law making special provisions for
admission of socially and educationally backward classes of citizens or for the Scheduled Castes and
Scheduled Tribes for their advancement and to a very limited extent affected the voluntary element
of this right under Article 19(1)(g) of the Constituion. We, therefore, do not find any merit in the
submission of learned counsel for the petitioners that the identity of the right of unaided private
educational institutions under Article 19(1)(g) of the Constitution has been destroyed by clause (5)
of Article 15 of the Constitution.
Width Test
A plain reading of clause (5) of Article 15 of the Constitution will further show that such law has to
be limited to making a special provision relating to admission to private educational institutions,
whether aided or unaided, by the State. Hence, if the State makes a law which is not related to
16
admission in educational institutions and relates to some other aspects affecting the autonomy and
rights of private educational institutions as defined by this Court in T.M.A. Pai Foundation, such a
law would not be within the power of the State under clause (5) of Article 15 of the Constitution. In
other words, power in clause (5) of Article 15 of the Constitution is a guided power to be exercised
for the limited purposes stated in the clause and as and when a law is made by the State in purported
exercise of the power under clause (5) of Article 15 of the Constitution, the Court will have to examine
and find out whether it is for the purposes of advancement of any socially and educationally backward
classes of citizens or for the Scheduled Castes and the Scheduled Tribes and whether the law is
confined to admission of such socially and educationally backward classes of citizens or for the
Scheduled Castes and the Scheduled Tribes to private educational institutions, whether aided or
unaided, and if the Court finds that the power has not been exercised for the purposes mentioned in
clause (5) of Article 15 of the Constitution, the Court will have to declare the law as ultra vires Article
19(1)(g) of the Constitution. In our opinion, therefore, the width of the power vested on the State
under clause (5) of Article 15 of the Constitution by the constitutional amendment is not such as to
destroy the right under Article 19(1)(g) of the Constitution.
Aided and Unaided Educational Institution
As and when a law is made by the State under clause (5) of Article 15 of the Constitution, such a law
would have to be examined whether it has taken into account the fact that private unaided educational
institutions are not aided by the State and has made provisions in the law to ensure that private unaided
educational institutions are compensated for the admissions made in such private unaided educational
institutions from amongst socially and educationally backward classes of citizens or the Scheduled
Castes and the Scheduled Tribes. In our view, therefore, a law made under clause (5) of Article 15 of
the Constitution by the State on the ground that it treats private aided educational institutions and
private unaided educational institutions alike is not immune from a challenge under Article 14 of the
Constitution. Clause (5) of Article 15 of the Constitution only states that nothing in Article 15 or
Article 19(1)(g) will prevent the State to make a special provision, by law, for admission of socially
and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes
to educational institutions including private educational institutions, whether aided or unaided by the
State. Clause (5) of Article 15 of the Constitution does not say that such a law will not comply with
the other requirements of equality as provided in Article 14 of the Constitution.
Minority Institution
Thus, the law as laid down by this Court is that the minority character of an aided or unaided minority
institution cannot be annihilated by admission of students from communities other than the minority
community which has established the institution, and whether such admission to any particular
percentage of seats will destroy the minority character of the institution or not will depend on a large
number of factors including the type of institution.
We accordingly hold that none of the rights under Articles 14, 19(1)(g) and 21 of the Constitution
have been abrogated by clause (5) of Article 15 of the Constitution and the view taken by Bhandari,
J. in Ashoka Kumar Thakur v. Union of India (supra) that the imposition of reservation on unaided
institutions by the Ninety-third Amendment has abrogated Article 19(1)(g), a basic feature of the
Constitution is not correct. Instead, we hold that the (Ninety-third Amendment) Act, 2005 of the
Constitution inserting clause (5) of Article 15 of the Constitution is valid.
Article 21A
Article 21A of the Constitution, as we have noticed, states that the State shall provide free and
compulsory education to all children of the age of six to fourteen years in such manner as the State
17
may, by law, determine. The word ‘State ’in Article 21A can only mean the ‘State ’which can make
the law. Hence, Mr. Rohatgi and Mr. Nariman are right in their submission that the constitutional
obligation under Article 21A of the Constitution is on the State to provide free and compulsory
education to all children of the age of 6 to 14 years and not on private unaided educational institutions.
Article 21A, however, states that the State shall by law determine the “manner” in which it will
discharge its constitutional obligation under Article 21A. Thus, a new power was vested in the State
to enable the State to discharge this constitutional obligation by making a law. However, Article 21A
has to be harmoniously construed with Article 19(1)(g) and Article 30(1) of the Constitution.
41. While discussing the validity of clause (5) of Article 15 of the Constitution, we have already
noticed that in paragraphs 53 and 68 of the judgment in T.M.A. Pai Foundation (supra), this Court
has held that admission of a small percentage of students belonging to weaker sections of the society
by granting them freeships or scholarships, if not granted by the Government and the admission to
some of the seats to take care of poorer and backward sections of the society may be permissible and
would not be inconsistent with the rights under Articles 19(1)(g) of the Constitution. In P.A. Inamdar
(supra), however, this Court explained that there was nothing in this Court’s judgment in T.M.A. Pai
Foundation (supra) to say that such admission of students from amongst weaker, backward and poorer
sections of the society in private unaided institutions can be done by the State because the power
vested on the State in clause (6) of Article 19 of the Constitution is to make only regulatory provisions
and this power could not be used by the State to force admissions from amongst weaker, backward
and poorer sections of the society on private unaided educational institutions. While discussing the
validity of clause (5) of Article 15, we have also held that there is an element of voluntariness of all
the freedoms under Article 19(1) of the Constitution, but the voluntariness in these freedoms can be
subjected to law made under the powers available to the State under clause (2) to (6) of Article 19 of
the Constitution.
42. In our considered opinion, therefore, by the Constitution (Eighty- Sixth Amendment) Act, a new
power was made available to the State under Article 21A of the Constitution to make a law
determining the manner in which it will provide free and compulsory education to the children of the
age of six to fourteen years as this goal contemplated in the Directive Principles in Article 45 before
this constitutional amendment could not be achieved for fifty years. This additional power vested by
the Constitution (Eighty-Sixth Amendment) Act, 2002 in the State is independent and different from
the power of the State under clause (6) of Article 19 of the Constitution and has affected the
voluntariness of the right under Article 19(1)(g) of the Constitution. By exercising this additional
power, the State can by law impose admissions on private unaided schools and so long as the law
made by the State in exercise of this power under Article 21A of the Constitution is for the purpose
of providing free and compulsory education to the children of the age of 6 to 14 years and so long as
such law forces admission of children of poorer, weaker and backward sections of the society to a
small percentage of the seats in private educational institutions to achieve the constitutional goals of
equality of opportunity and social justice set out in the Preamble of the Constitution, such a law would
not be destructive of the right of the private unaided educational institutions under Article 19(1)(g)
of the Constitution.
45. Under Article 30(1) of the Constitution, all minorities, whether based on religion or language,
shall have the right to establish and administer educational institutions of their choice. Religious and
linguistic minorities, therefore, have a special constitutional right to establish and administer
educational schools of their choice and this Court has repeatedly held that the State has no power to
interfere with the administration of minority institutions and can make only regulatory measures and
has no power to force admission of students from amongst non- minority communities, particularly
in minority schools, so as to affect the minority character of the institutions.
47. In the result, we hold that the Constitution (Ninety-third Amendment) Act, 2005 inserting clause
(5) of Article 15 of the Constitution and the Constitution (Eighty-Sixth Amendment) Act, 2002
18
inserting Article 21A of the Constitution do not alter the basic structure or framework of the
Constitution and are constitutionally valid. We also hold that the 2009 Act is not ultra vires Article
19(1)(g) of the Constitution. We, however, hold that the 2009 Act insofar as it applies to minority
schools, aided or unaided, covered under clause (1) of Article 30 of the Constitution is ultra vires the
Constitution.
4. When we examine the 2009 Act, we find that under Section 12(1)(c) read with Section 2(n)(iv) of
the Act, an unaided school not receiving any kind of aid or grants to meet its expenses from the
appropriate Government or the local authority is required to admit in class I, to the extent of at least
twenty-five per cent of the strength of that class, children belonging to weaker section and
disadvantaged group in the neighbourhood and provide free and compulsory elementary education
till its completion. We further find that under Section 12(2) of the 2009 Act such a school shall be
reimbursed expenditure so incurred by it to the extent of per- child-expenditure incurred by the State,
or the actual amount charged from the child, whichever is less, in such manner as may be prescribed.
Thus, ultimately it is the State which is funding the expenses of free and compulsory education of the
children belonging to weaker sections and several groups in the neighbourhood, which are admitted
to a private unaided school. These provisions of the 2009 Act, in our view, are for the purpose of
providing free and compulsory education to children between the age group of 6 to 14 years and are
consistent with the right under Article 19(1)(g) of the Constitution, as interpreted by this Court in
T.M.A. Pai Foundation (supra) and are meant to achieve the constitutional goals of equality of
opportunity in elementary education to children of weaker sections and disadvantaged groups in our
society. We, therefore, do not find any merit in the submissions made on behalf of the non-minority
private schools that Article 21A of the Constitution and the 2009 Act violate their right under Article
19(1)(g) of the Constitution.
XVI. Modern Dental College & Research Centre v. State of Madhya Pradesh (2016) 7 SC 353
Doctrine Of Proportionality Explained & Applied:

Undoubtedly, the right to establish and manage the educational institutions is a fundamental right
recognised under Article 19(1)(g) of the Act. It also cannot be denied that this right is not 'absolute'
and is subject to limitations i.e. 'reasonable restrictions' that can be imposed by law on the exercise
of the rights that are conferred under clause (1) of Article
19. Those restrictions, however, have to be reasonable. Further, such restrictions should be 'in the
interest of general public', which conditions are stipulated in clause (6) of Article 19.
Undoubtedly, right to establish and administer educational institutions is treated as a fundamental
right as it is termed 'occupation', which is one of the freedoms guaranteed under Article 19(1)(g). It
was so recognised for the first time in T.M.A. Pai Foundation. Even while doing so, this right came
with certain clutches and shackles. The Court made it clear that it is a noble occupation which would
not permit commercialisation or profiteering and, therefore, such educational institutions are to be
run on 'no profit no loss basis'. While explaining the scope of this right, right to admit students and
right to fix fee was accepted as facets of this right, the Court again added caution thereto by mandating
that admissions to the educational institutions imparting higher education, and in particular
professional education, have to admit the students based on merit. For judging the merit, the Court
indicated that there can be a CET. While doing so, it also specifically stated that in case of admission
to professional courses such a CET can be conducted by the State. If such a power is exercised by the
State assuming the function of CET, this was so recognised in T.M.A. Pai Foundation itself, as a
measure of 'reasonable restriction on the said right'. Islamic Academy of Education further clarified
the contour of such function of the State while interpreting T.M.A. Pai Foundation itself wherein it
was held that there can be Committees constituted to supervise conducting of such CET. This process
of interpretative balancing and constitutional balancing was remarkably achieved in P.A. Inamdar by
not only giving its premature to deholding of CET but it went further to hold that agency conducted
19
the CET must be the one which enjoys the utmost credibility and expertise in the matter to achieve
fulfillment of twin objectives of transparency and merit and for that purpose it permitted the State to
provide a procedure of holding a CET in the interest of securing fair and merit based admissions and
preventing maladministration.
We are of the view that the larger public interest warrants such a measure. Having regard to the
malpractices which are noticed in the CET conducted by such private institutions themselves, for
which plethora of material is produced, it is, undoubtedly, in the larger interest and welfare of the
students community to promote merit, add excellence and curb malpractices. The extent of restriction
has to be viewed keeping in view all these factors and, therefore, we feel that the impugned provisions
which may amount to 'restrictions' on the right of the appellants to carry on their 'occupation', are
clearly 'reasonable' and satisfied the test of proportionality.
From the above discussion, it clearly emerges that in exercise of their “right to occupation”, private
institutions cannot transgress the rights of the students. Discernibly, the Act does not give unbridled
power to the authority to determine the fee. Determination of fee has to be based on the factors
stipulated in Section 9 of the Act. Further, an opportunity of appeal is also provided for in the Act
2007 to the aggrieved. Fundamental rights of colleges to run their administration, includes fixation
of fee. However, such right in turn has to be balanced with the rights of the students, so that they are
not subjected to exploitation in the form of profiteering.
70. For the foregoing discussion, I hold that the State has the legislative competence to enact the
impugned legislation-Act 2007 to hold common entrance test for admission to professional
educational institutions and to determine the fee and the High Court has rightly upheld the validity of
the impugned legislation. Regulations sought to be imposed by the impugned legislation on admission
by common entrance test conducted by the State and determination of fee are in compliance of the
directions and observations in T.M.A. Pai, Islamic Academy of Education and P.A. Inamdar.
Regulations on admission process are necessary in the larger public interest and welfare of the student
community to ensure fairness and transparency in the admission and to promote merit and excellence.
Regulation on fixation of fee is to protect the rights of the students in having access to higher
education without being subjected to exploitation in the form of profiteering. With the above
reasonings, I concur with the majority view in upholding the validity of the impugned legislation and
affirm the well merited decision of the High Court.
XVII. Joseph Shine v. Union of India (2019) 3 SCC 39.
As we notice, the provision treats a married woman as a property of the husband. It is interesting to
note that Section 497 IPC does not bring within its purview an extra marital relationship with an
unmarried woman or a widow. The dictionary meaning of ―adultery is that a married person commits
adultery if he has sex with a woman with whom he has not entered into wedlock. As per Black‘s Law
Dictionary, ‗adultery ‘is the voluntary sexual intercourse of a married person with a person other than
the offender‘s husband or wife. However, the provision has made it a restricted one as a consequence
of which a man, in certain situations, becomes criminally liable for having committed adultery while,
in other situations, he cannot be branded as a person who has committed adultery so as to invite the
culpability of Section 497 IPC. Section 198 CrPC deals with a ―person aggrieved‖. Sub-section (2)
of Section 198 treats the husband of the woman as deemed to be aggrieved by an offence committed
under Section 497 IPC and in the absence of husband, some person who had care of the woman on
his behalf at the time when such offence was committed with the leave of the court. It does not
consider the wife of the adulterer as an aggrieved person. The offence and the deeming definition of
an aggrieved person, as we find, is absolutely and manifestly arbitrary as it does not even appear to
be rational and it can be stated with emphasis that it confers a licence on the husband to deal with the
wife as he likes which is extremely excessive and disproportionate. We are constrained to think so,
20
as it does not treat a woman as an abettor but protects a woman and simultaneously, it does not enable
the wife to file any criminal prosecution against the husband. Indubitably, she can take civil action
but the husband is also entitled to take civil action. However, that does not save the provision as being
manifestly arbitrary. That is one aspect of the matter. If the entire provision is scanned being Argus-
eyed, we notice that on the one hand, it protects a woman and on the other, it does not protect the
other woman. The rationale of the provision suffers from the absence of logicality of approach and,
therefore, we have no hesitation in saying that it suffers from the vice of Article 14 of the Constitution
being manifestly arbitrary.
38. In this context, we may profitably refer to National Legal Services Authority v. Union of India
and others33 wherein A.K. Sikri, J., in his concurring opinion, emphasizing on the concept of dignity,
has opined:-
―The basic principle of the dignity and freedom of the individual is common to all nations,
particularly those having democratic set up. Democracy requires us to respect and develop the free
spirit of human being which is responsible for all progress in human history. Democracy is also a
method by which we attempt to raise the living standard of the people and to give opportunities to
every person to develop his/her personality. It is founded on peaceful co-existence and cooperative
living. If democracy is based on the recognition of the individuality and dignity of man, as a fortiori
we have to recognize the right of a human being to choose his sex/gender identity which is integral
his/her personality and is one of the most basic aspect of self-determination dignity and freedom. In
fact, there is a growing recognition that the true measure of development of a nation is not economic
growth; it is human dignity.‖ (2014) 5 SCC 438
39. Very recently, in Common Cause (A Registered Society) v. Union of India and another34, one of
us has stated:-
―... Human dignity is beyond definition. It may at times defy description. To some, it may seem to
be in the world of abstraction and some may even perversely treat it as an attribute of egotism or
accentuated eccentricity. This feeling may come from the roots of absolute cynicism. But what really
matters is that life without dignity is like a sound that is not heard. Dignity speaks, it has its sound, it
is natural and human. It is a combination of thought and feeling, and, as stated earlier, it deserves
respect even when the person is dead and described as a ―body‖.....‖ And again:-
―The concept and value of dignity requires further elaboration since we are treating it as an
inextricable facet of right to life that respects all human rights that a person enjoys. Life is basically
self-assertion. In the life of a person, conflict and dilemma are expected to be normal phenomena.
Oliver Wendell Holmes, in one of his addresses, quoted a line from a Latin poet who had uttered the
message, ―Death plucks my ear and says, Live- I am coming‖ . That is the significance of living. But
when a patient really does not know if he/she is living till death visits him/her and there is constant
suffering without any hope of living, should one be allowed to wait? Should she/he be cursed to die
as life gradually ebbs out from her/his being? Should she/he live because of innovative medical
technology or, for that matter, should he/she continue to live with the support system as people around
him/her think that science in its progressive invention may bring about an innovative method of cure?
To put it differently, (2018) 5 SCC 1 should he/she be ―guinea pig for some kind of experiment?
The answer has to be an emphatic ―Not because such futile waiting mars the pristine concept of life,
corrodes 139 the essence of dignity and erodes the fact of eventual choice which is pivotal to privacy.‖
In Mehmood Nayyar Azam v. State of Chhattisgarh and others, a two-Judge Bench held thus:-
―1...... Albert Schweitzer, highlighting on Glory of Life, pronounced with conviction and humility,
"the reverence of life offers me my fundamental principle on morality". The aforesaid expression may
appear to be an individualistic expression of a great personality, but, when it is understood in the
complete sense, it really denotes, in its conceptual essentiality, and connotes, in its macrocosm, the
fundamental perception of a thinker about the respect that life commands. The reverence of life is
insegragably associated with the dignity of a human being who is basically divine, not servile. A
human personality is endowed with potential infinity and it blossoms when dignity is sustained. The
21
sustenance of such dignity has to be the superlative concern of every sensitive soul. The essence of
dignity can never be treated as a momentary spark of light or, for that matter, 'a brief candle', or 'a
hollow bubble'. The spark of life gets more resplendent when man is treated with dignity sans
humiliation, for every man is expected to lead an honourable life which is a splendid gift of "creative
intelligence"
40. In the said judgment, A.K. Sikri, J. reproduced a passage from Professor Upendra Baxi‘s lecture
in First Justice H.R. Khanna Memorial Lecture which reads as follows:-
―I still need to say that the idea of dignity is a metaethical one, that is it marks and maps a difficult
terrain of what it may mean to say being 'human' and remaining 'human', or put another way the
relationship between 'self', 'others', and 'society'. In this formulation the word 'respect' is the keyword:
dignity is respect for an individual person based on the principle of freedom and capacity to make
choices and a good or just social order is one which respects dignity via assuring 'contexts' and
'conditions' as the 'source of free and informed choice'.
Respect for dignity thus conceived is empowering overall and not just because it, even if importantly,
sets constraints state, law, and regulations.
41. From the aforesaid analysis, it is discernible that the Court, with the passage of time, has
recognized the conceptual equality of woman and the essential dignity which a woman is entitled to
have. There can be no curtailment of the same. But, Section 497 IPC effectively does the same by
creating invidious distinctions based on gender stereotypes which creates a dent in the individual
dignity of women. Besides, the emphasis on the element of connivance or consent of the husband
tantamounts to subordination of women. Therefore, we have no hesitation in holding that the same
offends Article 21 of the Constitution.
53. In case of adultery, the law expects the parties to remain loyal and maintain fidelity throughout
and also makes the adulterer the culprit. This expectation by law is a command which gets into the
core of privacy. That apart, it is a discriminatory command and also a socio-moral one. Two
individuals may part on the said ground but to attach criminality to the same is inapposite.
XVIII. State of Karnataka v. Appa Balu Ingale AIR 1993 SCC1126
Background
“The charge against the respondents was that they restrained the complainant party by show of force
from taking water from a newly dug-up bore well on the ground that they were untouchables. The
prosecution produced four witnesses who were all Harijans. The trial court and the appellate court,
on appreciation of the evidence, reached the concurrent-finding that the charge against the
respondents-accused was proved beyond reasonable doubt. Ordinarily it is not open for the High
Court to interfere with the concurrent findings of the courts below specially by reappreciating the
evidence in its revisional jurisdiction. The High Court disbelieved evidence of all the four witnesses
who deposed to the actual incident as happened before their eyes. According to the High Court their
evidence was not uniform in regard to actual words uttered by the accused persons and the manner
they prevented the complainant party from taking water from the well. The High Court rejected the
testimony of the eye witnesses on the following reasoning:-
Thus, not only the evidence of these witnesses regarding the actual manner in which the accused
obstructed and what words they uttered, is discrepant and not consistent, but what is not certain from
the evidence is as to who among the accused persons obstructed and used those particular words
attributed to the accused. It cannot expect that all the accused would use the words simultaneously
in a chorus in the manner the witnesses stated before the court. Therefore, it cannot be said with any
amount of certainty which among the accused was guilty of the offence. The evidence adduced on
behalf of the prosecution was wholly insufficient to establish the charge of the offence under Section
4(iv) of the Act levelled against them.”
22
We have given our thoughtful consideration to the prosecution evidence as appreciated by the courts
below. We do not find any infirmity in the evidence of the prosecution witnesses. The High Court
lost sight of the fact that the social disability of the Harijan community was enforced on a threat of
using a gun. It is proved beyond doubt that the complainants were stopped from taking water from
the well on the ground that they were untouchables.
7. In 1852 Frederick Douglass, a leading Black abolitionist of slavery described his agony on the eve
of America's Independence Day thus:
This Fourth of July is yours, not mine. You may rejoice, I must mourn. To drag a man in fetters to
the grand illuminated temple of liberty, and call upon him to join you in joyous anthems, were
inhuman mockery and sacrilegious irony... I say it with a sad sense of the disparity between us. I am
not included within the pale of this glorious anniversary.... the blessings in which you, this day,
rejoice, are not enjoyed in common. The rich inheritance of justice, liberty, prosperity and
independence, bequeathed by your fathers, is shared by you, not by me. The sunlight that brought
light and healing to you, has brought stripes and death to me.
8. Same was the poignant agony of the Indian Scheduled Castes, Untouchables, for short 'Dalits' on
the eve of August 15, 1947, Indian Independence Day.
Abolition of untouchability in itself is complete and its effect is all pervading applicable to state
actions as well as acts of omission by individuals, institutions, juristic or body of persons. Despite its
abolition it is being practised with impunity more in breach. More than 75% of the cases under the
Act are ending in acquittal at all levels. Apathy and lack of proper perspectives even by the courts in
tackling the naughty problem is obvious. For the first time after 42 years of the Constitution came
into force this first case has come up to this Court to consider the problem. The Act is not a penal law
simpliciter but bears behind it monstrous untouchability relentlessly practised for centuries
dehumanising the Dalits, constitution's animation to have it eradicated and to assimilate 1/5th of
Nation's population in the main stream of national life. Therefore, I feel that it would be imperative
to broach the problem not merely from the perspectives of criminal jurisprudence, but more also from
sociological and constitutional angulations. While respectfully agreeing with my learned brother
Kuldip Singh, J. on his reasoning, conclusions and conviction, it is expedient, therefore, to have the
case considered from the above back drop and address ourselves to the questions that arose for
decision.
he problem of untouchability is a matter of class struggle. It is a struggle between caste Hindus and
the Untouchables. This is not a matter of doing injustice against one man. This is a matter of injustice
being done by one class against another. This struggle is related to social status. This struggle
indicates how one class should keep its relationship with another class of people. The struggle starts
as soon as you start claiming equal treatment with others. Had it not been so, there would have been
no struggle over simple reason like serving chapatis, wearing good quality clothes, putting on the
sacred thread, fetching water in a metal pot, sitting the bridegroom on the back of a horse, etc. In
these cases you spend your own money. Why then do the high-caste Hindus get irritated? The reason
for their anger is very simple. Your behaving on par with them insults them. Your status in their eyes
is low, you are impure, you must remain at the lowest rung. Then alone will they allow you to live
happily. The moment you cross your level the struggle starts.
The instances given above also prove one more fact. Untouchability is not a short or temporary
feature; it is a permanent one. To put it straight, it can be said that the struggle between the Hindus
and the Untouchables is a permanent phenomenon. It is eternal, because the high caste people believe
that the religion which has placed you at the lowest level of the society is itself eternal. No change
according to time and circumstances is possible. You are at the lowest rung of the ladder today. You
shall remain lowest forever.
13. According to him untouchability is an indirect form of slavery and only an extention of caste
system. Caste system and untouchability stand together and will fall together. The idea of hoping to
23
eradicate untouchability without destroying caste system is an utter futility. The problem to the Dalits
is discrimination of high order next to the problem of recovering their manhood. In every nook and
corner of the country, the Dalits face handicaps, suffer discrimination and are meted out injustice as
a daily routine.
14. Despite the missionary work of reformers like Mahatma Jyotiba Phule, Periar E.V. Ramaswami
Naiker, Swamy Dayanand Saraswathi and host of others to awaken social consciousness amongst
untouchables their efforts remained unsuccessful. Dr. Ambedkar having been the victim of this cruel
practice and suffered the agony of throwing files by peons at his face while he was Military Secretary
of Maharaja of Baroda, beaten up for staying in incognito as a paying guest in a Parse Inn etc. became
their crusader. He roused the Dalits' consciousness to fight for eradication of untouchability, to claim
equality of treatment, status and opportunity and of equal rights, civil, political, social and economic
and of dignity of person. Mahatma Gandhiji, the father of the Nation, too sincerely worked to abolish
untouchability and named them as Harijans (children of God). The rights secured by Ambedkar in
Poona Pact and 1934 Congress resolution formed foundation for Article 17. Though the tenets of
other religions do not preach, by imitation, they too practice untouchability, though not in strict rigour.
Empirical study conducted by Socialogists, like, in Social and Economic Development in India, a
Reassessment edited by Dilip K. Basu and Richard Sision, Sage Publication, New Delhi, 1986
Edition, in the Chapter "Consciousness of Freedom among India's Untouchables", by James M.
Freeman said that the Dalits are "world's most oppressed minorities". At p. 160 he stated that severe
economic domination usually has been sufficient to keep the untouchables in line, but evidence exists
that the ultimate sanction was the use and threat of physical force. The numerically larger and
wealthier dominant high castes are quite capable of and in fact did crush the slightest perceived
resistance to their will. At p. 161 it was further stated that since independence, and particularly since
1970's as Untouchables have more openly resisted discrimination, reports of terrorism against them
have increased both in number and in ferocity; gouging out the eyes of Untouchables in full view of
assembled villagers who are terrified into silence, burning groups of Untouchables to death, chopping
of their hands or feet, raping women, destroying whole villages are routine. At p. 169 in conclusion
he stated that "Indian independence is a watershed event precisely because it both embodied this ideal
of a new order and in fact has set in motion widespread and momentous changes that have affected
virtually every Indian citizen, including the 100,000,000 Untouchables of India.
Poverty and penury made the Dalits as dependants and became vulnerable to oppression. The slightest
attempt to assert equality or its perceived exercise receives the ire of the dominent sections of the
society and the Dalits would become the object of atrocities and oppression. The lack of resources
made the Dalits vulnerable to economic and social boycott. Their abject poverty and dependence on
the upper classes in Rural Indian for livelihood stands a constant constraint to exercise their rights -
social, legal or constitutional, though guaranteed. Thus they have neither money capacity, influence
nor means to vindicate their rights except occasional collective action which would be deceased or
flittered away by pressures through diverse forms. Consequently most of the Dalits are continuing to
languish under the yoke of the practice of untouchability. The State has the duty to protect them and
render social justice to them.
XIX. Safai Karmachari Andolan v. Union of India (2014) 11 SCC 224.
5) The practice of untouchability in general and of manual scavenging in particular was deprecated
in no uncertain terms by Dr. B.R. Ambedkar, Chairman of the Drafting Committee of the Constitution
of India. Accordingly, in Chapter III of the Constitution, Article 17 abolished untouchability which
states as follows:
24
"Abolition of Untouchability: "Untouchability" is abolished and its practice in any form is forbidden.
The enforcement of any disability arising out of "Untouchability" shall be an offence punishable in
accordance with law."
6) Article 17 of the Constitution was initially implemented through the enactment of the Protection
of Civil Rights Act, 1955 (formerly known as the Untouchability (Offences) Act, 1955). Section
7A of the said Act provides that whoever compels any person on the ground of untouchability to do
any scavenging shall be deemed to have enforced a disability arising out of untouchability which is
punishable with imprisonment. While these constitutional and statutory provisions were path
breaking in themselves, they were found to be inadequate in addressing the continuation of the
obnoxious practice of manual scavenging across the country, a practice squarely rooted in the concept
of the caste-system and untouchability.
7) Apart from the provisions of the Constitution, there are various international conventions and
covenants to which India is a party, which prescribe the inhuman practice of manual scavenging.
These are the Universal Declaration of Human Rights (UDHR), Convention on Elimination of Racial
Discrimination (CERD) and the Convention for Elimination of all Forms of Discrimination Against
Women (CEDAW).
11. Due to effective intervention and directions of this Court, the Government of India brought an
Act called “The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act,
2013” for abolition of this evil and for the welfare of manual scavengers. The Act got the assent of
the President on 18.09.2013. The enactment of the aforesaid Act, in no way, neither dilutes the
constitutional mandate of Article 17 nor does it condone the inaction on the part of Union and State
Governments under the 1993 Act. What the 2013 Act does in addition is to expressly acknowledge
Article 17 and Article 21 rights of the persons engaged in sewage cleaning and cleaning tanks as well
persons cleaning human excreta on railway tracks.
14) We have already noted various provisions of the 2013 Act and also in the light of various orders
of this Court, we issue the following directions:-
(i) The persons included in the final list of manual scavengers under Sections 11 and 12 of the 2013
Act, shall be rehabilitated as per the provisions of Part IV of the 2013 Act, in the following manner,
namely:-
(a) such initial, one time, cash assistance, as may be prescribed;
(b) their children shall be entitled to scholarship as per the relevant scheme of the Central Government
or the State Government or the local authorities, as the case may be;
(c) they shall be allotted a residential plot and financial assistance for house construction, or a ready-
built house with financial assistance, subject to eligibility and willingness of the manual scavenger as
per the provisions of the relevant scheme;
(d) at least one member of their family, shall be given, subject to eligibility and willingness, training
in livelihood skill and shall be paid a monthly stipend during such period;
(e) at least one adult member of their family, shall be given, subject to eligibility and willingness,
subsidy and concessional loan for taking up an alternative occupation on sustainable basis, as per the
provisions of the relevant scheme;
(f) shall be provided such other legal and programmatic assistance, as the Central Government or
State Government may notify in this behalf.
(ii) If the practice of manual scavenging has to be brought to a close and also to prevent future
generations from the inhuman practice of manual scavenging, rehabilitation of manual scavengers
will need to include:-
25
(a) Sewer deaths – entering sewer lines without safety gears should be made a crime even in
emergency situations. For each such death, compensation of Rs. 10 lakhs should be given to the
family of the deceased.
(b) Railways – should take time bound strategy to end manual scavenging on the tracks.
(c) Persons released from manual scavenging should not have to cross hurdles to receive what is their
legitimate due under the law.
(d) Provide support for dignified livelihood to safai karamchari women in accordance with their
choice of livelihood schemes.
(iii) Identify the families of all persons who have died in sewerage work (manholes, septic tanks)
since 1993 and award compensation of Rs.10 lakhs for each such death to the family members
depending on them.
(iv) Rehabilitation must be based on the principles of justice and transformation.
15) In the light of various provisions of the Act referred to above and the Rules in addition to various
directions issued by this Court, we hereby direct all the State Governments and the Union Territories
to fully implement the same and take appropriate action for non-implementation as well as violation
of the provisions contained in the 2013 Act. Inasmuch as the Act 2013 occupies the entire field, we
are of the view that no further monitoring is required by this Court. However, we once again reiterate
that the duty is cast on all the States and the Union Territories to fully implement and to take action
against the violators. Henceforth, persons aggrieved are permitted to approach the authorities
concerned at the first instance and thereafter the High Court having jurisdiction.
16) With the above direction, the writ petition is disposed of. No order is required in the contempt
petition.
XX. Prathvi Raj Chauhan v. Union of India (2020) 4 SCC 727.
It is submitted that section 18A has been enacted to nullify the judgment of this Court in Dr. Subhash
Kashinath Mahajan v. The State of Maharashtra & Anr., (2018) 6 SCC 454, in which following
directions were issued:
“83. Our conclusions are as follows:
(i) Proceedings in the present case are clear abuse of process of court and are quashed.
(ii) There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no
prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie
mala fide. We approve the view taken and approach of the Gujarat High Court in Pankaj D. Suthar
(supra) and Dr. N.T. Desai (supra) and clarify the judgments of this Court in Balothia (supra) and
Manju Devi (supra);
(iii) In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a
public servant can only be after approval of the appointing authority and of a non-public servant after
approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons
recorded. Such reasons must be scrutinised by the Magistrate for permitting further detention.
(iv) To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP
concerned to find out whether the allegations make out a case under the Atrocities Act and that the
allegations are not frivolous or motivated.
(v) Any violation of directions (iii) and (iv) will be actionable by way of disciplinary action as well
as contempt.
The above directions are prospective.”
It has been submitted that this Court has noted in Dr. Subhash Kashinath (supra) that the provisions
of the Act of 1989 are being misused as such the amendment is arbitrary, unjust, irrational and
violative of Article 21 of the Constitution of India. There could not have been any curtailment of the
right to obtain anticipatory bail under section 438 Cr.PC. Prior scrutiny and proper investigation are
26
necessary. Most of the safeguards have been provided under the Act of 1989 to prevent undue
harassment. This Court has struck down the provision of section 66A of the Information Technology
Act on the ground of violation of fundamental rights; on the same anvil, the provisions of section 18A
of the Act of 1989 deserve to be struck down.
4. It is not disputed at the Bar that the provisions in section 18A in the Act of 1989 had been enacted
because of the judgment passed by this Court in Dr. Subhash Kashinath's case (supra), mainly because
of direction Nos (iii) to (v) contained in para 83. The Union of India had filed review petitions, and
the same have been allowed, and direction Nos (iii) to (v) have been recalled. Thus, in view of the
judgment passed in the review petitions, the matter is rendered of academic importance as we had
restored the position as prevailed by various judgments that were in vogue before the matter of Dr.
Subhash Kashinath (supra) was decided. We are not burdening the decision as facts and reasons have
been assigned in detail while deciding review petitions on 1.10.2019 and only certain clarifications
are required in view of the provisions carved out in section 18A. There can be protective
discrimination, not reverse one.
9. There is no presumption that the members of the Scheduled Castes and Scheduled Tribes may
misuse the provisions of law as a class and it is not resorted to by the members of the upper Castes or
the members of the elite class. For lodging a false report, it cannot be said that the caste of a person
is the cause. It is due to the human failing and not due to the caste factor. Caste is not attributable to
such an act. On the other hand, members of the Scheduled Castes and Scheduled Tribes due to
backwardness hardly muster the courage to lodge even a first information report, much less, a false
one. In case it is found to be false/unsubstantiated, it may be due to the faulty investigation or for
other various reasons including human failings irrespective of caste factor. There may be certain cases
which may be false that can be a ground for interference by the Court, but the law cannot be changed
due to such misuse. In such a situation, it can be taken care in proceeding under section 482 of the
Cr.PC.
50. The data of National Crime Records Bureau, Ministry of Home Affairs, has been pointed out on
behalf of Union of India which indicates that more than 47,000 cases were registered in the year 2016
under the Act of 1989. The number is alarming, and it cannot be said that it is due to the outcome of
the misuse of the provisions of the Act.
51. As a matter of fact, members of the Scheduled Castes and Scheduled Tribes have suffered for
long, hence, if we cannot provide them protective discrimination beneficial to them, we cannot place
them at all at a disadvantageous position that may be causing injury to them by widening inequality
and against the very spirit of our Constitution. It would be against the basic human dignity to treat all
of them as a liar or as a crook person and cannot look at every complaint by such complainant with a
doubt. Eyewitnesses do not come up to speak in their favour. They hardly muster the courage to speak
against upper caste, that is why provisions have been made by way of amendment for the protection
of witnesses and rehabilitation of victims. All humans are equal including in their frailings. To treat
SCs. and STs. as persons who are prone to lodge false reports under the provisions of the Scheduled
Castes and Scheduled Tribes Act for taking revenge or otherwise as monetary benefits made available
to them in the case of their being subjected to such offence, would be against fundamental human
equality. It cannot be presumed that a person of such class would inflict injury upon himself and
would lodge a false report only to secure monetary benefits or to take revenge. If presumed so, it
would mean adding insult to injury, merely by the fact that person may misuse provisions cannot be
a ground to treat class with doubt. It is due to human failings, not due to the caste factor. The monetary
benefits are provided in the cases of an acid attack, sexual harassment of SC/ST women, rape, murder,
etc. In such cases, FIR is required to be registered promptly.
To treat such incumbents with a rider that a report lodged by an SCs/STs category, would be registered
only after a preliminary investigation by Dy. S.P., whereas under Cr.PC a complaint lodged relating
27
to cognizable offence has to be registered forthwith. It would mean a report by upper-caste has to be
registered immediately and arrest can be made forthwith, whereas, in case of an offence under the
Act of 1989, it would be conditioned one. It would be opposed to the protective discrimination meted
out to the members of the Scheduled Castes and Scheduled Tribes as envisaged under the Constitution
in Articles 15, 17 and 21 and would tantamount to treating them as unequal, somewhat supportive
action as per the mandate of Constitution is required to make them equals. It does not prima facie
appear permissible to look them down in any manner. It would also be contrary to the procedure
prescribed under the Cr.PC and contrary to the law laid down by this Court in Lalita Kumari (supra).
8. Concerning the provisions contained in section 18A, suffice it to observe that with respect to
preliminary inquiry for registration of FIR, we have already recalled the general directions (iii) and
(iv) issued in Dr. Subhash Kashinath’s case (supra). A preliminary inquiry is permissible only in the
circumstances as per the law laid down by a Constitution Bench of this Court in Lalita Kumari v.
Government of U.P., (2014) 2 SCC 1, shall hold good as explained in the order passed by this Court
in the review petitions on 1.10.2019 and the amended provisions of section 18A have to be interpreted
accordingly.
9. The section 18A(i) was inserted owing to the decision of this Court in Dr. Subhash Kashinath
(supra), which made it necessary to obtain the approval of the appointing authority concerning a
public servant and the SSP in the case of arrest of accused persons. This Court has also recalled that
direction on Review Petition (Crl.) No.228 of 2018 decided on 1.10.2019. Thus, the provisions which
have been made in section 18A are rendered of academic use as they were enacted to take care of
mandate issued in Dr. Subhash Kashinath (supra) which no more prevails. The provisions were
already in section 18 of the Act with respect to anticipatory bail.
10. Concerning the applicability of provisions of section 438 Cr.PC, it shall not apply to the cases
under Act of 1989. However, if the complaint does not make out a prima facie case for applicability
of the provisions of the Act of 1989, the bar created by section 18 and 18A (i) shall not apply. We
have clarified this aspect while deciding the review petitions.
11. The court can, in exceptional cases, exercise power under section 482 Cr.PC for quashing the
cases to prevent misuse of provisions on settled parameters, as already observed while deciding the
review petitions. The legal position is clear, and no argument to the contrary has been raised.
XXI. Balaji Raghavan v. Union of India (1996) 1 SC 361
30. The National Awards are not violative of the principles of equality as guaranteed by the provisions
of the Constitution. The theory of equality does not mandate that merit should not be recognized.
Article 51A of the Constitution speaks of the fundamental duties of every citizen of India. In this
context, we may refer to the various clauses of Article 51A and specifically clause (j) which exhorts
every citizen "to strive towards excellence in all spheres of individual and collective activity, so that
the nation constantly rises to higher levels of endeavour and achievement." It is, therefore, necessary
that there should be a system of awards and decorations to recognise excellence in the performance
of these duties.
31. Hereditary titles of nobility conflict with the principle of equality insofar as they create a separate,
identifiable class of people who are distinct from the rest of society and have access to special
privileges. Titles that are not hereditary but carry suffixes or prefixes have the same effect, though
the degree may be lesser. While other Constitutions also prohibit the conferment of titles of nobility,
ours may perhaps be unique in requiring that awards conferred by the State are not to be used as
suffixes or prefixes. This difference is borne out of the peculiar problems that these titles had created
in pre-independent India and the earnest desire of the framers to prevent the repetition of these
circumstances in Free, Independent India.
28
33. The guidelines contained in the communique from the Ministry of Home Affairs towards the
selection of probable recipients are extremely wide, imprecise, amenable to abuse and wholly
unsatisfactory for the important objective that they seek to achieve. There are no limitations
prescribed for the maximum number of awards that can be granted in a given year or the maximum
number that is permissible in each category. The Prime Minister's Committee on Awards & Honours,
1948 had recommended certain limitations in terms of numbers but these have not been incorporated
in the extant guidelines. As stated earlier, most countries have provided for such limitations in respect
of their civil awards. That is for the obvious reason that the importance of the awards is not diluted.
While in the grant of the Bharat Ratna award sufficient restraint has been shown, the same cannot be
said of all other awards. The exercise of such restraint is absolutely necessary to safeguard the
importance of the awards. That is why the need for necessarily granting awards every year also
requires reconsideration. These and the fixing of other criteria, which will ensure that the recipients
of these awards are subjected to feelings of respect rather than suspicion, need to be examined by a
high level Committee that may be appointed by the Prime Minister in consultation with the President
of India. Even otherwise it is time that such a committee looks into the working of the existing
guidelines in view of the experience gained. We say no more as we have entrusted the task of setting
up of the Committee to high level functionaries. We may only say that the Committee may keep in
view our anxiety that the number of Awards should not be so large as to dilute their value. We may
point out that in some countries, including U.S.A., the total number of Awards to be given is
restricted. With these observations we dispose of both the petitions - cases with no order as to costs.
The examination of initial deliberations regarding institution of these awards show that in the first
meeting of the committee held on February 27, 1948 under the Chairmanship of Mr. B.N. Rau, it was
recommended that an extremely high standard should be prescribed for these awards and total number
of award to be given in each category should be limited and fixed. It was recommended that awards
should be made very sparingly and only on grounds of outstanding merit. They should not be made
merely because there happen to be vacancies in a particular category. The Ministry of Home Affairs,
Government of India, prepared a note dated January 10, 1953 for the consideration of the Cabinet. It
was proposed to institute suitable awards for meritorious public services. The note clearly suggested
that the number of recipients in various awards must be restricted. The report was considered by the
Cabinet presided over by Shri Jawaharlal Nehru and was accepted with some minor modifications.
Therefore, to ensure that Padma awards are truly national in character and above party and political
considerations, I suggest that a committee at national level be constituted by the Prime Minister of
India in consultation with the President of India which may include, among others, the Speaker of
Lok Sabha, the Chief Justice of India or his nominee and the leader of Opposition in the Lok Sabha.
At the State level similar committees may be formed by the Chief Minister of the State in consultation
with the Governor. The committee may, among others, include Speaker of the Legislative Assembly,
Chief Justice of the State or his nominee and the leader of the Opposition.
The function of the State committees may only be to recommend the names of the persons, who in
their opinion are deserving of a particular award. The final decision shall have to be taken by the
National Committee on Awards. No award should be conferred except on the recommendation of the
National Committee. The recommendation must have the approval of the Prime Minister and the
President of India.
The number of awards under each category must be curtailed to preserve their prestige and dignity.
In any given year the awards, all put together, may not exceed fifty.
XXII. Shreya Singhal v. Union of India (2015) 5 SCC 1
35. This decision lays down the test that has to be formulated in all these cases. We have to ask
ourselves the question: does a particular act lead to disturbance of the current life of the community
or does it merely affect an individual leaving the tranquility of society undisturbed? Going by this
29
test, it is clear that Section 66A is intended to punish any person who uses the internet to disseminate
any information that falls within the sub-clauses of Section 66A. It will be immediately noticed that
the recipient of the written word that is sent by the person who is accused of the offence is not of any
importance so far as this Section is concerned. (Save and except where under sub-clause (c) the
addressee or recipient is deceived or misled about the origin of a particular message.) It is clear,
therefore, that the information that is disseminated may be to one individual or several individuals.
The Section makes no distinction between mass dissemination and dissemination to one person.
Further, the Section does not require that such message should have a clear tendency to disrupt public
order. Such message need not have any potential which could disturb the community at large. The
nexus between the message and action that may be taken based on the message is conspicuously
absent - there is no ingredient in this offence of inciting anybody to do anything which a reasonable
man would then say would have the tendency of being an immediate threat to public safety or
tranquility. On all these counts, it is clear that the Section has no proximate relationship to public
order whatsoever. The example of a guest at a hotel `annoying' girls is telling - this Court has held
that mere `annoyance' need not cause disturbance of public order. Under Section 66A, the offence is
complete by sending a message for the purpose of causing annoyance, either `persistently' or
otherwise without in any manner impacting public order.
Chilling Effect And Overbreadth
83. Information that may be grossly offensive or which causes annoyance or inconvenience are
undefined terms which take into the net a very large amount of protected and innocent speech. A
person may discuss or even advocate by means of writing disseminated over the internet information
that may be a view or point of view pertaining to governmental, literary, scientific or other matters
which may be unpalatable to certain sections of society. It is obvious that an expression of a view on
any matter may cause annoyance, inconvenience or may be grossly offensive to some. A few
examples will suffice. A certain section of a particular community may be grossly offended or
annoyed by communications over the internet by "liberal views" - such as the emancipation of women
or the abolition of the caste system or whether certain members of a non proselytizing religion should
be allowed to bring persons within their fold who are otherwise outside the fold. Each one of these
things may be grossly offensive, annoying, inconvenient, insulting or injurious to large sections of
particular communities and would fall within the net cast by Section 66A. In point of fact, Section
66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious
opinion dissenting with the mores of the day would be caught within its net. Such is the reach of the
Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would
be total.
86. That the content of the right under Article 19(1)(a) remains the same whatever the means of
communication including internet communication is clearly established by Reno's case (supra) and
by The Secretary, Ministry of Information & Broadcasting v. Cricket Association of Bengal & Anr.,
(1995) SCC 2 161 at Para 78 already referred to. It is thus clear that not only are the expressions used
in Section 66A expressions of in exactitude but they are also over broad and would fall foul of the
repeated injunctions of this Court that restrictions on the freedom of speech must be couched in the
narrowest possible terms.
90. These two Constitution Bench decisions bind us and would apply directly on Section 66A. We,
therefore, hold that the Section is unconstitutional also on the ground that it takes within its sweep
protected speech and speech that is innocent in nature and is liable therefore to be used in such a way
as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground
of overbreadth
30
XXIII. People’s Union for Civil Liberties (PUCL) v. Union of India (1997) 1 SCC 301
165. Tapping of telephones is a serious invasion of privacy. It is a variety of technological

eavesdropping. Conversations on the telephone are often of an intimate and confidential character.
The relevant statue, i.e., Indian Telegraph Act, 1885, a piece of ancient legislation, does not concern
itself with tapping. Tapping cannot be regarded as a tort because the law as it stands today does not
know of any general right to privacy.
166. This is a hardly satisfactory situation. There are instances where apprehensions of disclosure of
sources of information as well as the character of information may result in constraints on freedom
of information and consequential drying up of its source. We, therefore, recommend that telephones
may not be tapped except in the interest of national security, public order, investigation of crime and
similar objectives, under orders made in writing by the Minister concerned or an officer of rank to
whom the power in that behalf is delegated. The order should disclose reasons. An order for tapping
of telephones should expire after three months from the date of the order. Moreover, within a period
of six weeks the order should come up for review before a Board constituted on the lines prescribed
in statutes providing for preventive detention. It should be for the Board to decide whether tapping
should continue any longer. The decision of the Board should be binding on the Government. It may
be added that the Minister or his delegates will be competent to issue a fresh order for tapping of the
telephone if circumstances call for it. The Telegraph Act should contain a clause to give effect to this
recommendation.
XXIV. Anuradha Bhasin v. Union of India (2020) 3 SCC 637
26. The development of the jurisprudence in protecting the medium for expression can be traced to
the case of Indian Express v. Union of India, (1985) 1 SCC 641, wherein this Court had declared that
the freedom of print medium is covered under the freedom of speech and expression. In Odyssey
Communications Pvt. Ltd. v. Lokvidayan Sanghatana, (1988) 3 SCC 410, it was held that the right of
citizens to exhibit films on Doordarshan, subject to the terms and conditions to be imposed by the
Doordarshan, is a part of the fundamental right of freedom of expression guaranteed under Article
19(1)(a), which can be curtailed only under circumstances set out under Article 19(2). Further, this
Court expanded this protection to the use of airwaves in the case of Secretary, Ministry of Information
& Broadcasting, Government of India (supra). In this context, we may note that this Court, in a catena
of judgments, has recognized free speech as a fundamental right, and, as technology has evolved, has
recognized the freedom of speech and expression over different media of expression. Expression
through the internet has gained contemporary relevance and is one of the major means of information
diffusion. Therefore, the freedom of speech and expression through the medium of internet is an
integral part of Article 19(1)(a) and accordingly, any restriction on the same must be in accordance
with Article 19(2) of the Constitution.
27. In this context, we need to note that the internet is also a very important tool for trade and
commerce. The globalization of the Indian economy and the rapid advances in information and
technology have opened up vast business avenues and transformed India as a global IT hub. There is
no doubt that there are certain trades which are completely dependent on the internet. Such a right of
trade through internet also fosters consumerism and availability of choice. Therefore, the freedom of
trade and commerce through the medium of the internet is also constitutionally protected
under Article 19(1)(g), subject to the restrictions provided under Article 19(6).
31
28. None of the counsels have argued for declaring the right to access the internet as a fundamental
right and therefore we are not expressing any view on the same. We are confining ourselves to
declaring that the right to freedom of speech and expression under Article 19(1)(a), and the right to
carry on any trade or business under 19(1)(g), using the medium of internet is constitutionally
protected.
56. The next conundrum faced by the Court was in achieving the requisite balance, the solution for
which was derived from the principle of proportionality. The eminent constitutional jurist, Kai Möller
states that the proportionality principle is the doctrinal tool which guides Judges through the process
of resolving these conflicts.13 One of the theories of proportionality widely relied upon by most
theorists is the version developed by the German Federal Constitutional Court. The aforesaid doctrine
lays down a four pronged test wherein, first, it has to be analysed as to whether the measure restricting
the rights serves a legitimate goal (also called as legitimate goal test), then it has to be analysed
whether the measure is a suitable means of furthering this goal (the rational connection stage), next
it has to be assessed whether there existed an equally effective but lesser restrictive alternative remedy
(the necessity test) and at last, it should be analysed if such a measure had a disproportionate impact
on the rightholder (balancing stage). One important 13Kai Möller, The Global Model of
Constitutional Rights (Oxford, Oxford University Press, 2012).
feature of German test is the last stage of balancing, which determines the outcome as most of the
important issues are pushed to the balancing stage and the same thereby dominates the legal analysis.
Under this approach, any goal which is legitimate will be accepted; as usually a lesser restrictive
measure might have the disadvantage of being less effective and even marginal contribution to the
goal will suffice the rational connection test.14
57. The aforesaid test needs to be contrasted with its Canadian counterpart also known as the Oakes
test. According to the said doctrine, the object of the measure must be compelling enough to warrant
overriding of the constitutionally guaranteed freedom; a rational nexus must exist between such a
measure and the object sought to be achieved; the means must be least restrictive; and lastly, there
must be proportionality between the effects of such measure and the object sought to be achieved.
This doctrine of proportionality is elaborately propounded by Dickson, C.J., of the Supreme Court of
Canada in R. v. Oakes, (1986) 1 SCR 103 (Can) SC, in the following words (at p. 138): 14Kai Möller,
Constructing the Proportionality Test: An Emerging Global Conversation, Reasoning Rights
Comparative Judicial Engagement (Hart Publishing, 2014)
58. As can be seen, there exists substantial difference in both approaches, as the Oakes test, instead
of requiring “any” legitimate goal, demands the same to be compelling enough to warrant the
limitation of constitutional rights. Additionally, while the German necessity test calls for a lesser
restrictive measure which is equivalently effective, the need for effectiveness has been done away
with in the Oakes test wherein the requirement of least infringing measure has been stipulated.
62. While some scholars such as Robert Alexy 16 call for a strong interpretation of the necessity stage
as it has direct impact upon the realisation and optimisation of constitutional rights while others such
as David Bilchitz 17 found significant problems with this approach.
63. First, Bilchitz focuses on the issues arising out of both the German test and the Oakes test, wherein
the former treats all policies to be necessary by justifying that the available alternatives may not be
equally effective, while the latter applies the “minimal impairment test” narrowing the
constitutionally permissible policies and places a strong burden on the Government to justify its
policies. Therefore, Bilchitz argues that if the necessity stage is interpreted strictly, legislations and
32
policies no matter how well intended will fail to pass the proportionality inquiry if any other slightly
less drastic measure exists. Bilchitz, therefore, indicates that Alexy’s conclusion may be too quick.
16Robert Alexy, A Theory of Constitutional Rights (Oxford, Oxford University Press, 2002) 47.
17David Bilchitz, Necessity and Proportionality: Towards A Balanced Approach? in L. Lazarus, C.
McCrudden and N. Bowles (eds.), Reasoning Rights, 41 (2014).
70. In view of the aforesaid discussion, we may summarize the requirements of the doctrine of
proportionality which must be followed by the authorities before passing any order intending on
restricting fundamental rights of individuals. In the first stage itself, the possible goal of such a
measure intended at imposing restrictions must be determined. It ought to be noted that such goal
must be legitimate. However, before settling on the aforesaid measure, the authorities must assess the
existence of any alternative mechanism in furtherance of the aforesaid goal. The appropriateness of
such a measure depends on its implication upon the fundamental rights and the necessity of such
measure. It is undeniable from the aforesaid holding that only the least restrictive measure can be
resorted to by the State, taking into consideration the facts and circumstances. Lastly, since the order
has serious implications on the fundamental rights of the (21Julian Rivers, Proportionality and
Variable Intensity of Review, (2006) 65 C.L.J. 174 (hereinafter Rivers, “Proportionality”); Martin
Luteran, Towards Proportionality as a Proportion Between Means and Ends in Cian C. Murphy and
Penny Green (eds.), Law and Outsiders: Norms, Processes and “Othering” in the 21st Century (2011)
(hereinafter Luteran, “Towards Proportionality”); see also the contribution of Alison L. Young in
Chapter 3 of this volume. ) affected parties, the same should be supported by sufficient material and
should be amenable to judicial review.
71. The degree of restriction and the scope of the same, both territorially and temporally, must stand
in relation to what is actually necessary to combat an emergent situation.
72. To consider the immediate impact of restrictions upon the realization of the fundamental rights,
the decision maker must prioritize the various factors at stake. Such attribution of relative importance
is what constitutes proportionality. It ought to be noted that a decision which curtails fundamental
rights without appropriate justification will be classified as disproportionate. The concept of
proportionality requires a restriction to be tailored in accordance with the territorial extent of the
restriction, the stage of emergency, nature of urgency, duration of such restrictive measure and nature
of such restriction. The triangulation of a restriction requires the consideration of appropriateness,
necessity and the least restrictive measure before being imposed.
XXV. Foundation for Media Professionals v. Union Territory of Jammu and Kashmir & Another
(2020) 5 SCC 746
12. At the outset, we have already laid down that the fundamental rights of citizens need to be
balanced with national security concerns, when the situation so demands. This Court is cognizant of
the importance of these matters for the national security concerns, and takes the same with utmost
seriousness to ensure that citizens enjoy life and liberty to the greatest possible extent. National
security concerns and human rights must be reasonably and defensibly adjusted with one another, in
line with the constitutional principles. There is no doubt that the present situation calls for a delicate
balancing, looking to the peculiar circumstances prevailing in the Union Territory of Jammu and
Kashmir. Before considering the relief sought by the Petitioners, it is necessary to look at the steps
taken by Respondent No. 1 after the pronouncement of the earlier judgment of this Court in Anuradha
Bhasin (supra).
While it might be desirable and convenient to have better internet in the present circumstances,
wherein there is a worldwide pandemic and a national lockdown. However, the fact that outside forces
33
are trying to infiltrate the borders and destabilize the integrity of the nation, as well as cause incidents
resulting in the death of innocent citizens and security forces every day cannot be ignored.
15. However, the authorities in the Union Territories of Jammu and Kashmir have selected the 2G
speed to restrict the flow of information in order to prevent misuse of data by terrorists and their
supporters to disturb the peace and tranquility of the Union Territory of Jammu and Kashmir.
17. One of the criteria for testing the proportionality of the orders is the territorial extent of the
restrictions. In view of the observations made in Anuradha Bhasin (supra), for meaningful
enforcement of the spirit of the judgment, inter alia, the authorities are required to pass orders with
respect to only those areas, where there is absolute necessity of such restrictions to be imposed, after
satisfying the directions passed earlier.
18. In this regard, our attention is drawn to the fact that blanket orders have been passed for the entire
territory rather than for specific affected areas.
19. A perusal of the submissions made before us and the material placed on record indicate that the
submissions of the Petitioners, in normal circumstances, merit consideration. However, the
compelling circumstances of cross border terrorism in the Union Territory of Jammu and Kashmir,
at present, cannot be ignored.
24. The Special Committee is directed to examine the contentions of, and the material placed herein
by, the Petitioners as well as the Respondents. The aforesaid Committee must also examine the
appropriateness of the alternatives suggested by the Petitioners, regarding limiting the restrictions to
those areas where it is necessary and the allowing of faster internet (3G or 4G) on a trial basis over
certain geographical areas and advise the Respondent No. 1 regarding the same, in terms of our earlier
directions.
XXVI. Communist Party of India (M) v. Bharat Kumar (1998) 1 SCC201
On a perusal of the impugned judgment of the High Court, referring to which learned counsel for the
appellant pointed out certain portions, particularly in paras 13 and 18 including the operative part in
support of their submissions, we find that the judgment does not call for any interference. We are
satisfied that the distinction drawn by the High Court between a "Bandh" and a call for general strike
or "Hartal" is well made out with reference to the effect of a "Bandh" on the fundamental rights of
other citizens. There cannot be any doubt that the fundamental rights of the people as a whole cannot
be subservient to the claim of fundamental right of a n individual or only a section of the people. it is
on the basis of this distinction that the High Court has rightly concluded that there cannot be any right
to call or enforce a "Bandh" which interferes with the exercise of the fundamental freedoms of other
citizens, in addition to causing national loss in may ways. We may also add that the reasoning given
by the High Court, particularly those in paragraphs 12, 13 and 17 for the ultimate conclusion and
directions in paragraph 18 is correct with which we are in agreement. We may also observe that the
High Court has drawn a very appropriate distinction between a "Bandh" on the hand and a call for
general strike or "Hartal" on the other. We are in agreement with the view taken by the High Court.
XXVII. Chintaman Rao v. State of M.P. AIR 1951 SC 118
The question for decision is whether the statute under the guise of protecting public interests
arbitrarily interferes with private business and imposes unreasonable and unnecessarily restrictive
regulations upon lawful occupation; in other words, whether the total prohibition of carrying on the
business of manufacture of bidis within the agricultural season amounts to a reasonable restriction on
the fundamental rights mentioned in article 19 (1) (g) of the Constitution. Unless it is shown that there
is a reasonable relation of the provisions of the Act to the purpose in view, the right of freedom of
occupation and business cannot be curtailed by it.
34
The phrase "reasonable restriction" connotes that the limitation imposed on a person in enjoyment of
the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of
the public. The word "reasonable" implies intelligent care and deliberation, that is, the choice of a
course which reason dictates. Legisla- tion which arbitrarily or excessively invades the right cannot
be said to contain the quality of reasonableness and unless it strikes a proper balance between the
freedom guaranteed in article 19 (1) (g) and the social control permitted by clause (6) of article 19, it
must be held to be wanting in that quality.
XXVIII. Narendra Kumar v. Union of India AIR 1960 SC 430
It is clear that in these three cases, viz., Chintaman Rao's Case (1), Cooverjee's Case (2) and Madhya
Bharat Cotton Association Ltd. Case (3) the Court considered the real question to be whether the
interference with the fundamental right, was " reasonable " or not in the interests of the general public
and that if the answer to the question was in the affirmative, the law would be valid and it would be
invalid if the test of reasonableness was not passed. Prohibition was in all these cases treated as only
a kind of " restriction ". Any other view would, in our opinion, defeat the intention of the Constitution.
In applying the test of reasonableness, the Court has to consider the question in the background of the
facts and circumstances under which the order was made, taking into account the nature of the evil
that was sought to be remedied by such law, the ratio of the harm caused to individual citizens by the
proposed remedy, to the beneficial effect reasonably expected to result to the general public. It will
also be necessary to consider in that connection whether the restraint caused by the law is more than
was necessary in the interests of the general public.
XXIX. State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat (2005) 8 SCC 534
The whole controversy arose in the writ petition filed in the Gujarat High Court challenging the
validity of the Bombay Animal Preservation (Gujarat Amendment) Act, 1994 (hereinafter referred to
Gujarat Act No. 4 of 1994). By this amendment the age of bulls and bullocks which was existed at
that time that is bull below the age of 16 years and bullocks below the age of 16 years can not be
slaughtered was deleted. By this amendment the age restriction was totally taken away and that means
that no bull and bullock irrespective of age shall be slaughtered. This amendment was challenged
before the Gujarat High Court. The Gujarat High Court after dealing with all aspects in detail held
that amendment is ultra vires. Hence, the present petition alongwith the other petitions came up before
this Court by Special Leave Petition.
In Mohd. Hanif Qureshi's case this Court upheld a total prohibition of slaughter of the cows of all
ages and calf of buffalows (male and female) & she-buffaloes, breeding bulls and working bullocks,
without prescribing any test of requirement as to their age. But so far as bull & bullocks are concerned
when they ceased to have draughtability prohibition of their slaughter was not upheld in public
interest. Hon'ble S.R. Das, CJ speaking for the Court exhaustively dealt with all the aspects which
practically covers all the arguments which have been raised before us, especially, the utility of the
cow-dung for manure as well as the cow urine for its chemical qualities like Nitrogen Phosphates and
Potash. His Lordship recognized that this enactment was made in discharge of State's obligation
under Art. 48 of the Constitution to preserve our livestock.
Then again in the case of Mohd. Faruk vs. State of Madhya Pradesh and Ors. reported in 1969 (1)
SCC 853, Constitution Bench was called upon to decide the validity of the notification issued by the
Madhya Pradesh Government under Municipal Corporation Act. Earlier, a notification was issued by
the Jabalpur Municipality permitting the slaughter of bulls and bullocks alongwith the other animals.
35
Later on State Government issued notification cancelling the notification permitting the slaughter of
bulls and bullocks. This came up for a challenge directly under Art. 32 of the constitution before this
Court, that this restriction amounts to breach of Art. 19(1)(g) of the constitution. In that context, their
Lordship observed:
"That the sentiments of a section of the people may be hurt by permitting slaughter of bulls and
bullocks in premises maintained by a local authority. But a prohibition imposed on the exercise of a
fundamental right to carry on an occupation, trade or business will not be regarded as reasonable if it
is imposed not in the interest of the general public but merely to respect the susceptibilities and
sentiments of a section of the people whose way of life belief or thought is not the same as that of the
claimant. The notification issued must, therefore, be declared ultra virus as infringing Article
19(1)(g) of the Constitution.
Therefore one of the hallmarks of the law is certainty predictability and stability unless the ground
realty has completely changed. In the present case, as discussed above, in my opinion the ground
reality has not changed and the law laid down by this court holds good and relevant. Some
advancement in technology and more and more use of the cow dung and urine is not such a substantial
factor to change the ground realities so as to totally done away with the slaughtering of the aged bulls
and bullocks. It is true my Lord the Chief Justice has rightly observed that principle of stare decisis
is not a dogmatic rule allergic to logic and reason; it is a flexible principle of law operating in the
province of precedents providing room to collaborate with the demands of changing times dictated
by social needs, State policy and judicial conscience. There is no quarrel to this proposition, but the
only question is whether the earlier decisions are not logical or they have become unreasonable with
the passage of time. In my humble opinion, those decisions still hold good in the present context also.
Therefore, I do not think that there are compelling reasons for reversal of the earlier decisions either
on the basis of advancement of technology or reason, or logic, or economic consideration. Therefore,
in my humble opinion, there is no need to reverse the earlier decisions.
XXX. Tehseen S Poonawala v. Union of India (2018) 9 SCC 501
3. We shall state the facts in brief, for there are asseverations with regard to numerous incidents of
lynching and mob violence 4 which need not be specifically stated since we are going to issue certain
directions covering the arena of preventive, remedial and punitive measures.
19. Mob vigilantism and mob violence have to be prevented by the governments by taking strict
action and by the vigil society who ought to report such incidents to the state machinery and the police
instead of taking the law into their own hands. Rising intolerance and growing polarisation expressed
through spate of incidents of mob violence cannot be permitted to become the normal way of life or
the normal state of law and order in the country. Good governance and nation building require
sustenance of law and order which is intricately linked to the preservation of the marrows of our
social structure. In such a situation, the State has a sacrosanct duty to protect its citizens from unruly
elements and perpetrators of orchestrated lynching and vigilantism with utmost sincerity and true
commitment to address and curb such incidents which must reflect in its actions and schemes. 20.
Hate crimes as a product of intolerance, ideological dominance and prejudice ought not to be
tolerated; lest it results in a reign of terror. Extra judicial elements and non-State actors cannot be
allowed to take the place of law or the law enforcing agency. A fabricated identity with bigoted
approach sans acceptance of plurality and diversity results in provocative sentiments and display of
reactionary retributive attitude transforming itself into dehumanisation of human beings. Such an
atmosphere is one in which rational debate, logical discussion and sound administration of law eludes
thereby manifesting clear danger to various freedoms including freedom of speech and expression.
36
One man's freedom of thought, action, speech, expression, belief, conscience and personal choices is
not being tolerated by the other and this is due to lack of objective rationalisation of acts and
situations.
25. Lynching, at one point of time, was so rampant in the United States that Mark Twain had observed
in his inimitable 24 style that it had become "the United States of Lyncherdom". The sarcasm is
apparent.
34. The purpose of referring to the said authorities is that the law provides a procedure for arrest and
equally for investigation and the consequential trial. That is what has been interpreted by this Court
while dealing with Article 21 of the Constitution. Thus, the rights of the citizens cannot be destroyed
in an unlawful manner. As the investigating agency has to show fidelity to the statutory safeguards,
similarly, every citizen is required to express loyalty to law and the legal procedure. No one, and we
repeat no one, is entitled to take the law into his own hands and annihilate anything that the majesty
of law protects. When the vigilantes involve themselves in lynching or any kind of brutality, they, in
fact, put the requisite accountability of a citizen to law on the ventilator. That cannot be countenanced.
Such core groups cannot be allowed to act as they please. They cannot be permitted to indulge in
freezing the peace of life on the basis of their contrived notions. They are no one to punish a person
by ascribing any justification. The stand and stance put forth in the interlocutory applications filed by
the impleaded parties intend to convey certain contraventions of the provisions of statutory law but
the prescription of punishment does not empower any one to authorize himself to behave as the
protector of law and impose punishment as per his choice and fancy. That is the role and duty of the
law enforcing agencies known to law. No one else can be permitted to expropriate that role. It has to
be clearly understood that self-styled vigilantes have no role in that sphere. Their only right is to
inform the crime, if any, to the law enforcing agency. It is the duty of the law enforcement agencies
and the prosecutors to bring the accused persons before the law adjudicating authorities who, with
their innate training and sense of justice, peruse the materials brought on record, follow the provisions
of law and pass the judgment. In the scheme of things, the external forces cannot assume the role of
protectors and once they pave the said path, they associate themselves with criminality and bring
themselves in the category of criminals. It is imperative for them to remember that they are
subservient to the law and cannot be guided by notions or emotions or sentiments or, for that matter,
faith.
Preventive Measures
(x) It shall be the duty of the Central Government as well as the State Governments to take steps to
curb and stop dissemination of irresponsible and explosive messages, videos and other material on
various social media platforms which have a tendency to incite mob violence and lynching of any
kind.
(xi) The police shall cause to register FIR under Section 153A of IPC and/or other relevant provisions
of law against persons who disseminate irresponsible and explosive messages and videos having
content which is likely to incite mob violence and lynching of any kind.
C. Punitive Measures
(i) Wherever it is found that a police officer or an officer of the district administration has failed to
comply with the aforesaid directions in order to prevent and/or investigate and/or facilitate
expeditious trial of any crime of mob violence and lynching, the same shall be considered as an act
of deliberate negligence 43 and/or misconduct for which appropriate action must be taken against
37
him/her and not limited to departmental action under the service rules. The departmental action shall
be taken to its logical conclusion preferably within six months by the authority of the first instance.
XXXI. Animal Welfare Board v. A. Nagaraja (2014) 7 SCC 547
RIGHT TO LIFE:
62. Every species has a right to life and security, subject to the law of the land, which includes
depriving its life, out of human necessity. Article 21 of the Constitution, while safeguarding the rights
of humans, protects life and the word “life” has been given an expanded definition and any
disturbance from the basic environment which includes all forms of life, including animal life, which
are necessary for human life, fall within the meaning of Article 21 of the Constitution. So far as
animals are concerned, in our view, “life” means something more than mere survival or existence or
instrumental value for human-beings, but to lead a life with some intrinsic worth, honour and dignity.
Animals’ well-being and welfare have been statutorily recognised under Sections 3 and 11 of the Act
and the rights framed under the Act. Right to live in a healthy and clean atmosphere and right to get
protection from human beings against inflicting unnecessary pain or suffering is a right guaranteed
to the animals under Sections 3 and 11 of the PCA Act read with Article 51A(g) of the Constitution.
Right to get food, shelter is also a guaranteed right under Sections 3 and 11 of the PCA Act and the
Rules framed thereunder, especially when they are domesticated. Right to dignity and fair treatment
is, therefore, not confined to human beings alone, but to animals as well. Right, not to be beaten,
kicked, over-ridder, over-loading is also a right recognized by Section 11 read with Section 3 of the
PCA Act. Animals have also a right against the human beings not to be tortured and against infliction
of unnecessary pain or suffering. Penalty for violation of those rights are insignificant, since laws are
made by humans. Punishment prescribed in Section 11(1) is not commensurate with the gravity of
the offence, hence being violated with impunity defeating the very object and purpose of the Act,
hence the necessity of taking disciplinary action against those officers who fail to discharge their
duties to safeguard the statutory rights of animals under the PCA Act.
63. Jallikattu and other forms of Bulls race, as the various reports indicate, causes considerable pain,
stress and strain on the bulls. Bulls, in such events, not only do move their head showing that they do
not want to go to the arena but, as pain is being inflicted in the vadivasal is so much, they have no
other go but to flee to a situation which is adverse to them. Bulls, in that situation, are stressed,
exhausted, injured and humiliated. Frustration of the Bulls is noticeable in their vocalization and,
looking at the facial expression of the bulls, ethologist or an ordinary man can easily sense their
suffering. Bulls, otherwise are very peaceful animals dedicating their life for human use and
requirement, but are subjected to such an ordeal that not only inflicts serious suffering on them but
also forces them to behave in ways, namely, they do not behave, force them into the event which does
not like and, in that process, they are being tortured to the hilt. Bulls cannot carry the so-called
performance without being exhausted, injured, tortured or humiliated. Bulls are also intentionally
subjected to fear, injury – both mentally and physically – and put to unnecessary stress and strain for
human pleasure and enjoyment, that too, a species totally dedicated its life for human benefit, out of
necessity.
XXXII. National Legal Services Authority v. Union of India (2014) 5 SCC 438
Seldom, our society realizes or cares to realize the trauma, agony and pain which the members of
Transgender community undergo, nor appreciates the innate feelings of the members of the
Transgender community, especially of those whose mind and body disown their biological sex. Our
society often ridicules and abuses the Transgender community and in public places like railway
38
stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are sidelined and treated as
untouchables, forgetting the fact that the moral failure lies in the society’s unwillingness to contain
or embrace different gender identities and expressions, a mindset which we have to change.
11. Transgender is generally described as an umbrella term for persons whose gender identity, gender
expression or behavior does not conform to their biological sex. TG may also takes in persons who
do not identify with their sex assigned at birth, which include Hijras/Eunuchs who, in this writ
petition, describe themselves as “third gender” and they do not identify as either male or female.
Hijras are not men by virtue of anatomy appearance and psychologically, they are also not women,
though they are like women with no female reproduction organ and no menstruation. Since Hijras do
not have reproduction capacities as either men or women, they are neither men nor women and claim
to be an institutional “third gender”. Among Hijras, there are emasculated (castrated, nirvana) men,
non- emasculated men (not castrated/akva/akka) and inter-sexed persons (hermaphrodites). TG also
includes persons who intend to undergo Sex Re- Assignment Surgery (SRS) or have undergone SRS
to align their biological sex with their gender identity in order to become male or female. They are
generally called transsexual persons. Further, there are persons who like to cross-dress in clothing of
opposite gender, i.e transvestites. Resultantly, the term “transgender”, in contemporary usage, has
become an umbrella term that is used to describe a wide range of identities and experiences, including
but not limited to pre-operative, post-operative and non-operative transsexual people, who strongly
identify with the gender opposite to their biological sex; male and female.
19. Gender identity is one of the most-fundamental aspects of life which refers to a person’s intrinsic
sense of being male, female or transgender or transsexual person. A person’s sex is usually assigned
at birth, but a relatively small group of persons may born with bodies which incorporate both or
certain aspects of both male and female physiology. At times, genital anatomy problems may arise in
certain persons, their innate perception of themselves, is not in conformity with the sex assigned to
them at birth and may include pre and post-operative transsexual persons and also persons who do
not choose to undergo or do not have access to operation and also include persons who cannot undergo
successful operation. Countries, all over the world, including India, are grappled with the question of
attribution of gender to persons who believe that they belong to the opposite sex. Few persons
undertake surgical and other procedures to alter their bodies and physical appearance to acquire
gender characteristics of the sex which conform to their perception of gender, leading to legal and
social complications since official record of their gender at birth is found to be at variance with the
assumed gender identity. Gender identity refers to each person’s deeply felt internal and individual
experience of gender, which may or may not correspond with the sex assigned at birth, including the
personal sense of the body which may involve a freely chosen, modification of bodily appearance or
functions by medical, surgical or other means and other expressions of gender, including dress, speech
and mannerisms. Gender identity, therefore, refers to an individual’s self-identification as a man,
woman, transgender or other identified category.
20. Sexual orientation refers to an individual’s enduring physical, romantic and/or emotional
attraction to another person. Sexual orientation includes transgender and gender-variant people with
heavy sexual orientation and their sexual orientation may or may not change during or after gender
transmission, which also includes homo-sexuals, bysexuals, heterosexuals, asexual etc. Gender
identity and sexual orientation, as already indicated, are different concepts. Each person’s self-defined
sexual orientation and gender identity is integral to their personality and is one of the most basic
aspects of self-determination, dignity and freedom and no one shall be forced to undergo medical
procedures, including SRS, sterilization or hormonal therapy, as a requirement for legal recognition
of their gender identity.
39
ARTICLE 14 AND TRANSGENDERS
54. Article 14 of the Constitution of India states that the State shall not deny to “any person” equality
before the law or the equal protection of the laws within the territory of India. Equality includes the
full and equal enjoyment of all rights and freedom. Right to equality has been declared as the basic
feature of the Constitution and treatment of equals as unequals or unequals as equals will be violative
of the basic structure of the Constitution. Article 14 of the Constitution also ensures equal protection
and hence a positive obligation on the State to ensure equal protection of laws by bringing in
necessary social and economic changes, so that everyone including TGs may enjoy equal protection
of laws and nobody is denied such protection. Article 14 does not restrict the word ‘person’ and its
application only to male or female. Hijras/transgender persons who are neither male/female fall
within the expression ‘person’ and, hence, entitled to legal protection of laws in all spheres of State
activity, including employment, healthcare, education as well as equal civil and citizenship rights, as
enjoyed by any other citizen of this country.
ARTICLES 15 & 16 AND TRANSGENDERS
56. Articles 15 and 16 prohibit discrimination against any citizen on certain enumerated grounds,
including the ground of ‘sex’. In fact, both the Articles prohibit all forms of gender bias and gender
based discrimination
ARTICLE 19(1)(a) AND TRANSGENDERS
62. Article 19(1) of the Constitution guarantees certain fundamental rights, subject to the power of
the State to impose restrictions from exercise of those rights. The rights conferred by Article 19 are
not available to any person who is not a citizen of India. Article 19(1) guarantees those great basic
rights which are recognized and guaranteed as the natural rights inherent in the status of the citizen
of a free country. Article 19(1) (a) of the Constitution states that all citizens shall have the right to
freedom of speech and expression, which includes one’s right to expression of his self-identified
gender. Self-identified gender can be expressed through dress, words, action or behavior or any other
form. No restriction can be placed on one’s personal appearance or choice of dressing, subject to the
restrictions contained in Article 19(2) of the Constitution.
65. Principles referred to above clearly indicate that the freedom of expression guaranteed
under Article 19(1)(a) includes the freedom to express one’s chosen gender identity through varied
ways and means by way of expression, speech, mannerism, clothing etc.
66. Gender identity, therefore, lies at the core of one’s personal identity, gender expression and
presentation and, therefore, it will have to be protected under Article 19(1)(a) of the Constitution of
India. A transgender’s personality could be expressed by the transgender’s behavior and presentation.
State cannot prohibit, restrict or interfere with a transgender’s expression of such personality, which
reflects that inherent personality. Often the State and its authorities either due to ignorance or
otherwise fail to digest the innate character and identity of such persons. We, therefore, hold that
values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed
to members of the transgender community under Article 19(1)(a) of the Constitution of India and the
State is bound to protect and recognize those rights.
68. Recognition of one’s gender identity lies at the heart of the fundamental right to dignity. Gender,
as already indicated, constitutes the core of one’s sense of being as well as an integral part of a
40
person’s identity. Legal recognition of gender identity is, therefore, part of right to dignity and
freedom guaranteed under our Constitution.
69. Article 21, as already indicated, guarantees the protection of “personal autonomy” of an
individual. In Anuj Garg v. Hotel Association of India (2008) 3 SCC 1 (paragraphs 34-35), this Court
held that personal autonomy includes both the negative right of not to be subject to interference by
others and the positive right of individuals to make decisions about their life, to express themselves
and to choose which activities to take part in. Self-determination of gender is an integral part of
personal autonomy and self-expression and falls within the realm of personal liberty guaranteed
under Article 21 of the Constitution of India.
XXXIII. Navtej Singh Johar v. Union of India (2018) 1 SCC 791
10. Writ Petition (Criminal) No. 76 of 2016 was filed for declaring ―right to sexuality‖, ―right to
sexual autonomy‖ and ―right to choice of a sexual partner‖ to be part of the right to life guaranteed
under Article 21 of the Constitution of India and further to declare Section 377 of the Indian Penal
Code (for short, ―IPC‖) to be unconstitutional.
109. An argument is sometimes advanced that what is permissible between two adults engaged in
acceptable sexual activity is different in the case of two individuals of the same sex, be it homosexuals
or lesbians, and the ground of difference is supported by social standardization. Such an argument
ignores the individual orientation, which is naturally natural, and disrobes the individual of his/her
identity and the inherent dignity and choice attached to his/her being.
110. The principle of transformative constitutionalism also places upon the judicial arm of the State
a duty to ensure and uphold the supremacy of the Constitution, while at the same time ensuring that
a sense of transformation is ushered constantly and endlessly in the society by interpreting and
enforcing the Constitution as well as other provisions of law in consonance with the avowed object.
The idea is to steer the country and its institutions in a democratic egalitarian direction where there is
increased protection of fundamental rights and other freedoms. It is in this way that transformative
constitutionalism attains the status of an ideal model imbibing the philosophy and morals of
constitutionalism and fostering greater respect for human rights. It ought to be remembered that the
Constitution is not a mere parchment; it derives its strength from the ideals and values enshrined in
it. However, it is only when we adhere to constitutionalism as the supreme creed and faith and develop
a constitutional culture to protect the fundamental rights of an individual that we can preserve and
strengthen the values of our compassionate Constitution.
Constitutional morality and Section 377 IPC
111. The concept of constitutional morality is not limited to the mere observance of the core principles
of constitutionalism as the magnitude and sweep of constitutional morality is not confined to the
provisions and literal text which a Constitution contains, rather it embraces within itself virtues of a
wide magnitude such as that of ushering a pluralistic and inclusive society, while at the same time
adhering to the other principles of constitutionalism. It is further the result of embodying
constitutional morality that the values of constitutionalism trickle down and percolate through the
apparatus of the State for the betterment of each and every individual citizen of the State.
112. In one of the Constituent Assembly Debates, Dr. Ambedkar, explaining the concept of
constitutional morality by quoting the Greek historian, George Grote, said:-
41
"By constitutional morality, Grote meant... a paramount reverence for the forms of the constitution,
enforcing obedience to authority and acting under and within these forms, yet combined with the
habit of open speech, of action subject only to definite legal control, and unrestrained censure of those
very authorities as to all their public acts combined, too with a perfect confidence in the bosom of
every citizen amidst the bitterness of party contest that the forms of constitution wall not be less
sacred in the eyes of his opponents than his own."49
113. Our Constitution was visualized with the aim of securing to the citizens of our country
inalienable rights which were essential for fostering a spirit of growth and development and at the
same time ensuring that the three organs of the State working under the aegis of the Constitution and
deriving their authority from the supreme document, that is, the Constitution, practise constitutional
morality. The Executive, the Legislature and the Judiciary all have to stay alive to the concept of
constitutional morality.
49 Constituent Assembly Debates, Vol. 7 (4th November 1948)
114. In the same speech50, Dr. Ambedkar had quoted George Grote who had observed:-
"The diffusion of 'constitutional morality', not merely among the majority of any community, but
throughout the whole is the indispensable condition of a government at once free and peaceable; since
even any powerful and obstinate minority may render the working of a free institution impracticable,
without being strong enough to conquer ascendance for themselves."51 This statement of Dr.
Ambedkar underscores that constitutional morality is not a natural forte for our country for the simple
reason that our country had attained freedom after a long period of colonial rule and, therefore,
constitutional morality at the time when the Constituent Assembly was set up was an alien notion.
However, the strengthening of constitutional morality in contemporary India remains a duty of the
organs of the State including the Judiciary.
115. The society as a whole or even a minuscule part of the society may aspire and prefer different
things for themselves. They are perfectly competent to have such a freedom to be different, like
different things, so on and so forth, provided that their different tastes and liking remain within their
legal framework and neither violates any statute nor results in the abridgement of fundamental rights
of any other citizen. The Preambular goals of our Constitution which contain the noble objectives of
Justice, Liberty, Equality and Fraternity can only be achieved through the commitment and loyalty
of the organs of the State to the principle of constitutional morality.
116. It is the concept of constitutional morality which strives and urges the organs of the State to
maintain such a heterogeneous fibre in the society, not just in the limited sense, but also in
multifarious ways. It is the responsibility of all the three organs of the State to curb any propensity or
proclivity of popular sentiment or majoritarianism. Any attempt to push and shove a homogeneous,
uniform, consistent and a standardised philosophy throughout the society would violate the principle
of constitutional morality. Devotion and fidelity to constitutional morality must not be equated with
the popular sentiment prevalent at a particular point of time.
117. Any asymmetrical attitude in the society, so long as it is within the legal and constitutional
framework, must at least be provided an environment in which it could be sustained, if not fostered.
It is only when such an approach is adopted that the freedom of expression including that of choice
would be allowed to prosper and flourish and if that is achieved, freedom and liberty, which is the
quintessence of constitutional morality, will be allowed to survive.
42
120. We may hasten to add here that in the context of the issue at hand, when a penal provision is
challenged as being violative of the fundamental rights of a section of the society, notwithstanding
the fact whether the said section of the society is a minority or a majority, the magna cum laude and
creditable principle of constitutional morality, in a constitutional democracy like ours where the rule
of law prevails, must not be allowed to be trampled by obscure notions of social morality which have
no legal tenability. The concept of constitutional morality would serve as an aid for the Court to arrive
at a just decision which would be in consonance with the constitutional rights of the citizens,
howsoever small that fragment of the populace may be. The idea of number, in this context, is
meaningless; like zero on the left side of any number.
121. In this regard, we have to telescopically analyse social morality vis-à-vis constitutional morality.
It needs no special emphasis to state that whenever the constitutional courts come across a situation
of transgression or dereliction in the sphere of fundamental rights, which are also the basic human
rights of a section, howsoever small part of the society, then it is for the constitutional courts to ensure,
with the aid of judicial engagement and creativity, that constitutional morality prevails over social
morality.
122. In the garb of social morality, the members of the LGBT community must not be outlawed or
given a step-motherly treatment of malefactor by the society. If this happens or if such a treatment to
the LGBT community is allowed to persist, then the constitutional courts, which are under the
obligation to protect the fundamental rights, would be failing in the discharge of their duty. A failure
to do so would reduce the citizenry rights to a cipher.
123. We must not forget that the founding fathers adopted an inclusive Constitution with provisions
that not only allowed the State, but also, at times, directed the State, to undertake affirmative action
to eradicate the systematic discrimination against the backward sections of the society and the
expulsion and censure of the vulnerable communities by the so-called upper caste/sections of the
society that existed on a massive scale prior to coming into existence of the Constituent Assembly.
These were nothing but facets of the majoritarian social morality which were sought to be rectified
by bringing into force the Constitution of India. Thus, the adoption of the Constitution, was, in a way,
an instrument or agency for achieving constitutional morality and means to discourage the prevalent
social morality at that time. A country or a society which embraces constitutional morality has at its
core the well-founded idea of inclusiveness.
124. While testing the constitutional validity of impugned provision of law, if a constitutional court
is of the view that the impugned provision falls foul to the precept of constitutional morality, then the
said provision has to be declared as unconstitutional for the pure and simple reason that the
constitutional courts exist to uphold the Constitution.
Sexual orientation
139. After stating about the value of dignity, we would have proceeded to deal with the cherished
idea of privacy which has recently received concrete clarity in Puttaswamy‘s case. Prior to that, we
are advised to devote some space to sexual orientation and the instructive definition of LGBT by
Michael Kirby, former Judge of the High Court of Australia:-
―Homosexual: People of either gender who are attracted, sexually, emotionally and in relationships,
to persons of the same sex. Bisexual: Women who are attracted to both sexes; men who are attracted
to both sexes.
43
Lesbian: Women who are attracted to women.
Gay: Men who are attracted to men, although this term is sometimes also used generically for all
same-sex attracted persons. Gender identity: A phenomenon distinct from sexual orientation which
refers to whether a person identifies as male or female. This identity' may exist whether there is
"conformity or non-conformity" between their physical or biological or birth sex and their
psychological sex and the way they express it through physical characteristics, appearance and
conduct. It applies whether, in the Indian sub-continent, they identify as hijra or kothi or by another
name.
Intersex: Persons who are born with a chromosomal pattern or physical characteristics that do not
clearly fall on one side or the other of a binary malefemale line.
LGBT or LGBTIQ: Lesbian, Gay, Bisexual, Transsexual, Intersex and Queer minorities. The word
'Queer' is sometimes used generically, usually by younger people, to include the members of all of
the sexual minorities. I usually avoid this expression because of its pejorative overtones within an
audience unfamiliar with the expression. However, it is spreading and, amongst the young, is often
seen as an instance of taking possession of a pejorative word in order to remove its sting.
MSM: Men who have sex with men. This expression is common in United Nations circles. It refers
solely to physical, sexual activity by men with men. The expression is used on the basis that in some
countries - including India - some men may engage in sexual acts with their own sex although not
identifying as homosexual or even accepting a romantic or relationship emotion
144. The society cannot remain unmindful to the theory which several researches, conducted both in
the field of biological and psychological science, have proven and reaffirmed time and again. To
compel a person having a certain sexual orientation to proselytize to another is like asking a body
part to perform a function it was never designed to perform in the first place. It is pure science, a
certain manner in which the brain and genitals of an individual function and react. Whether one's
sexual orientation is determined by genetic, hormonal, developmental, social and/or cultural
influences (or a combination thereof), most people experience little or no sense of choice about their
sexual orientation.
232. In Sunil Batra v. Delhi Administration and others85, Krishna Iyer, J. opined that what is
punitively outrageous, scandalizingly unusual or cruel and rehabilitatively counterproductive, is
unarguably unreasonable and arbitrary and is shot down by Article 14 and 19 and if inflicted with
procedural unfairness, falls foul of Article 21.
238. In Shayara Bano (supra), the Court observed that manifest arbitrariness of a provision of law can
also be a ground for declaring a law as unconstitutional. Opining so, the Court observed thus:-
―The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply
to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness,
therefore, must be something done by the legislature capriciously, irrationally and/or without
adequate determining principle. Also, when something is done which is excessive and
disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that
arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate
legislation as well under Article 14.
44
XXXIV. People’s Union for Democratic Rights v. Union of India, (1982) 3 SCC 235
Before leaving this subject, we may point out with all the emphasis at our command that whenever
any fundamental right, which is enforceable against private individuals such as, for example a
fundamental right enacted in Article 17 or 23 or 24 is being violated, it is the constitutional obligation
of the State to take the necessary steps for the purpose of interdicting such violation and ensuring
observance of the fundamental right by the private individual who is transgressing the same. Of
course, the person whose fundamental right is violated can always approach the court for the purpose
of enforcement of his fundamental right, but that cannot absolve the State from its constitutional
obligation to see that there is no violation of the fundamental right of such person, particularly. when
he belongs to the weaker section humanity and is unable to wage a legal battle against a strong and
powerful opponent who is exploiting him.
XXXV. Adi Saiva Sivachariyargal Nala Sangam v. The Government of Tamil Nadu (2016) 2 SCC
725
RANJAN GOGOI, J.
1. Religion incorporates the particular belief(s) that a group of people subscribe to. Hinduism, as a
religion, incorporates all forms of belief without mandating the selection or elimination of any one
single belief. It is a religion that has no 1 Page 2 single founder; no single scripture and no single set
of teachings. It has been described as Sanatan Dharma, namely, eternal faith, as it is the collective
wisdom and inspiration of the centuries that Hinduism seeks to preach and propagate. It is keeping in
mind the above precepts that we will proceed further.
3. The provisions of Part III, as noted above, therefore makes it amply clear that while the right to
freedom of religion and to manage the religious affairs of any denomination is undoubtedly a
fundamental right, the same is subject to public order, morality and health and further that the
inclusion of such rights in Part III of the Constitution will not 3 Page 4 prevent the State from acting
in an appropriate manner, in the larger public interest, as mandated by the main part of both Articles
25 and 26. Besides, the freedom of religion being subject to the other provisions of Part III,
undoubtedly, Articles 25 and 26 of the Constitution has to be harmoniously construed with the other
provisions contained in Part III.
5. No controversy surfaced after the Constitution Bench judgment in Seshammal (supra) until a G.O.
No. 118 dated 23.05.2006 was issued by the Government of Tamil Nadu, Department of Tamil
Development, Cultural and Endowments to the effect that, “Any person who is a Hindu and
possessing the requisite qualification and training can be appointed as a Archaka in Hindu
temples”. An Ordinance (No. 5 /2006) dated 14.07.2006 followed the aforesaid G.O. seeking to
further amend sub-section (2) of Section 55 of the Tamil Nadu Act. The said provision of the Act i.e.
Section 55(2), by virtue of the 1971 amendment referred to above and the 2006 Ordinance, read as
follows. “(2) No person shall be entitled to appointment to any vacancy referred to in sub-section (1)
merely on the ground that he is next in the line of succession to the last holder of office.” [Change
brought about by amendment of S.55(2)] “or on the ground of any custom or usage”. [Change brought
about by Ordinance 5/2006].
6. The Explanatory statement to the Ordinance in para 4 indicated the purpose behind further
amendment of Section 55(2) in the following terms. “Archakas of the Temples are to be appointed
without any discrimination of caste and creed. Custom or usage cannot be a hindrance to this. It is
considered that the position is clarified in the Act itself and accordingly, it has been decided to amend
Section 55 of the said Act suitably”.
45
7. The Ordinance was replaced by The Tamil Nadu Act No. 15 of 2006 which received the assent of
the Governor on 29.08.2006. The Act, however, did not contain the amendment to Section 55 as was
made by the Ordinance. In other words, the said amendment brought by the Ordinance was dropped
from the Amending Act 15 of 2006.
26…We do not see how the above view of this Court in any way strikes a discordant note with the
views expressed in any earlier decision including Seshammal(supra). The issues in Seshammal(supra)
were entirely different and the discussions therein (para 12) proceeds on the basis that entry to the
sanctum sanctorum for a particular denomination is without any reference to caste or social status.
The reference to the opinion of Sri R. Parthasarathy Bhattacharya who has been referred to in the
above para 12 of the report as an undisputed scholar on the subject was cited to show that apart from
the followers of the 4 (four) traditions, so far as Vaishnava temples are concerned “…..none others,
however high placed in society as Pontiffs or Acharyas, or even other Brahmins could touch the idols,
do Pooja or enter the Garba Girha……..” Exclusion solely on the basis of caste was not an issue in
Seshammal(supra) so as to understand the decision in Adithayan (supra) to be, in any way, a departure
from what has been held in Seshammal (supra).
28. it will be useful to try to understand what is Hinduism? A broad answer is to be found in the
preface to this report but, perhaps, we should delve a little deeper into the issue. The subject has
received an indepth consideration of the Country’s philosopher President Dr. S. Radhakrishnan in the
celebrated work “ The Hindu way of Life”. The said work has been exhaustively considered in Sastri
Yagnapurushadji and Others Vs. Muldas Bhudradas Vaishya and Another4 in the context of the
question as to whether Swaminarayan sect is a religion distinguishable and separate from the Hindu
religion and consequently the temples belonging to the said sect fell outside the scope of Section 3 of
the Bombay Hindu Places of Public Worship (Entry Authorisation) Act, 1956. The aforesaid Section
3 of the Act inter alia provided that every temple to which the Act applied shall be open to the
excluded classes for worship in the same manner and to the same extent as other Hindus in general.
While the eventual decision of the Court which answered the question raised is in the negative,
namely, that the sect in question was not a distinguishable and different religion, it is the very learned
discourse that is to be found in the report with regard to the true tenets of Hinduism that would be of
interest so far the present case is concerned. The following passages from the report are truly worthy
of reproduction both for the purpose of recapitulation and illumination. “When we think of the Hindu
religion, we find it difficult, if not impossible, to define Hindu religion or even adequately describe
it. Unlike other religions in the world, the Hindu religion does not claim any one prophet; it does not
worship any one God; it does not subscribe to any one dogma; it does not believe in any one
philosophic concept; it does not follow any one set of religious rites or performances; in fact, it does
not appear to satisfy the narrow traditional features of any religion or creed. It may broadly be
described as a way of life and nothing more.”
28. The fact that reference to Hindus in the Constitution includes persons professing the Sikh, Jain
and Buddhist religions and the statutory enactments like Hindu Marriage Act, Hindu Succession Act
etc. also embraces Sikhs, Jains and Buddhists within the ambit of the said enactments is another
significant fact that was highlighted and needs to be specially taken note of.
38. A plain reading of the aforesaid provision i.e. Article 16(5), fortified by the debates that had taken
place in the Constituent Assembly, according to us, protects the appointment of Archakas from a
particular denomination, if so required to be made, by the Agamas holding the field. The debates in
the Constituent Assembly referred to discloses that the suggestion that the operation of Article 16(5)
should be restricted to appointment in offices connected with 4 Page 47 administration of a religious
institution was negatived. The exception in Article 16(5), therefore, would cover an office in a temple
which also requires performance of religious functions. In fact, the above though not expressly stated
could be one of the basis for the views expressed by the Constitution Bench in Sheshammal (supra)
40. The issue of untouchability raised on the anvil of Article 17 of the Constitution stands at the
extreme opposite end of the pendulum. Article 17 of the Constitution strikes at caste based practices
46
built on superstitions and beliefs that have no rationale or logic. The exposition of the Agamas made
a Century back by the Madras High Court in Gopala Moopnar (supra) that exclusion from the sanctum
sanctorum and duties of performance of poojas extends even to Brahmins is significant. The
prescription with regard to the exclusion of even Brahmins in Gopala Moopnar (supra) has been
echoed in the opinion of Sri Parthasarthy Bhattacharya as noted by the Constitution Bench in
Seshammal (supra). Such exclusion is not on the basis of caste, birth or pedigree. The provisions of
Article 17 and the Protection of Civil Rights Act, 4 Page 49 1955, therefore, would not be of much
significance for the present case. Similarly, the ‘offer’ of the state in its affidavit to appoint Shaivite
as Archakas in Shiva temples and Vaishnavas in Vaishanvite Temples is too naïve an understanding
of a denomination which is, to say the least, a far more sharply indentified subgroup both in case of
shaivite and vaishanvite followers. However, what cannot be ignored is the ‘admission’ inbuilt in the
said offer resulting in some flexibility in the impugned G.O. that the state itself has acknowledged.
43. In this regard it will be necessary to re-emphasise what has been already stated with regard to the
purport and effect of Article 16(5) of the Constitution, namely, that the exclusion of some and
inclusion of a particular segment or denomination for appointment as Archakas would not violate
Article 14 so long such inclusion/exclusion is not based on the criteria of caste, birth or any other
constitutionally unacceptable parameter. So long as the prescription(s) under a particular Agama or
Agamas is not contrary to any constitutional mandate as discussed above, the impugned G.O. dated
23.05.2006 by its blanket fiat to the effect that, “Any person who is a Hindu and possessing the
requisite qualification and training can be appointed as a Archaka in Hindu temples” has the potential
of falling foul of the dictum laid down in Seshammal (supra).
44. Consequently and in the light of the aforesaid discussion, we dispose of all the writ petitions in
terms of our findings, observations and directions above reiterating that as held in Seshammal (supra)
appointments of Archakas will have to be made in accordance with the Agamas, subject to their due
identification as well as their conformity with the Constitutional mandates and principles as discussed
above.
XXXVI. Indian Young Lawyers Association v. State of Kerala (2019) 11 SCC 1
3. Any relationship with the Creator is a transcendental one crossing all socially created artificial
barriers and not a negotiated relationship bound by terms and conditions. Such a relationship and
expression of devotion cannot be circumscribed by dogmatic notions of biological or physiological
factors arising out of rigid socio-cultural attitudes which do not meet the constitutionally prescribed
tests. Patriarchy in religion cannot be permitted to trump over the element of pure devotion borne out
of faith and the freedom to practise and profess one‟s religion. The subversion and repression of
women under the garb of biological or physiological factors cannot be given the seal of legitimacy.
Any rule based on discrimination or segregation of women pertaining to biological characteristics is
not only unfounded, indefensible and implausible but can also never pass the muster of
constitutionality.
4. (contention) “23. Further, mere sight of women cannot affect one‟s celibacy if one has taken oath
of it, otherwise such oath has no meaning and moreover, the devotees do not go to the Sabarimala
temple for taking the oath of celibacy but for seeking the blessings of Lord Ayyappa. Maintaining
celibacy is only a ritual for some who want to practise it and for which even the temple administration
has not given any justification. On the contrary, according to the temple administration, since women
during menstrual period cannot trek very difficult mountainous terrain in the dense forest and that
too for several weeks, this practice of not permitting them has started.”
5. (contention)“41. The respondent no. 2 has submitted that Sabarimala is a temple of great antiquity
dedicated to Lord Ayyappa who the petitioner avers to be a deity depicting “a hyper masculine God
born out of the union of two male Gods Shiva and Mohini, where Mohini is Vishnu in a female form.”
47
6.(contention) “The respondent no. 4 has also averred that the said condition of observance of 41days
Vruthum is not applicable to women alone and even men who cannot observe the 41 days Vruthum
due to births and deaths in the family, which results in breaking of Vruthum, are also not allowed to
take the pilgrimage that year. The respondent no. 4 has also drawn the attention of the Court to the
fact that religious customs as well as the traditional science of Ayurveda consider menstrual period
as an occasion for rest for women and a period of uncleanliness of the body and during this period,
women are affected by several discomforts and, hence, observance of intense spiritual discipline for
41 days is not possible. The respondent no. 4 has also contented that it is for the sake of pilgrims who
practise celibacy that young women are not allowed in the Sabarimala pilgrimage.”
89. The important question that emerges is as to what constitutes a religious denomination. The said
question has been the subject matter of several decisions of this Court beginning from Shirur Mutt
(supra) wherein the Court observed thus:
“As regards Article 26, the first question is, what is the precise meaning or connotation of the
expression "religious denomination" and whether a Math could come within this expression. The
word "denomination" has been defined in the Oxford Dictionary to mean 'a collection of individuals
classed together under the same name: a religious sect or body having a common faith and
Organisation and designated by a distinctive name. It is well known that the practice of setting up
Maths as centres of the logical teaching was started by Shri Sankaracharya and was followed by
various teachers since then. After Sankara, came a galaxy of religious teachers and philosophers who
founded the different sects and sub-sects of the Hindu religion that we find in India at the present
day. Each one of such 57 sects or sub-sects can certainly be balled a religious denomination, as it is
designated by a distinctive name, -in many cases it is the name of the founder, - and has a common
faith and common spiritual organization. The followers of Ramanuja, who are known by the name of
Shri Vaishnabas, undoubtedly constitute a religious denomination; and so do the followers of
Madhwacharya and other religious teachers. It is a fact well established by tradition that the eight
UdipiMaths were founded by Madhwacharya himself and the trustees and the beneficiaries of these
Maths profess to be followers of that teacher. The High Court has found that the Math in question is
in charge of the Sivalli Brahmins who constitute a section of the followers of Madhwacharya. As
article 26 contemplates not merely a religious denomination but also a section thereof, the Math or
the spiritual fraternity represented by it can legitimately come within the purview of this article.”
90…SP Mittal (Aurovile) Case:The Supreme Court, by a majority of 4:1, ruled that neither the
society nor the township of Auroville constituted a religious denomination, for the teachings and
utterances of Sri Aurobindo did not constitute a religion and, therefore, taking over of the Auroville
by the Government did not infringe the society‟s right under Articles 25 and 26 of the Constitution.
“In order to constitute a separate denomination, there must be something distinct from
another. A denomination, argues the counsel, is one which is different from the other and if the Society
was a religious denomination, then the person seeking admission to the institution would lose his
previous religion. He cannot be a member of two religions at one and the same time. But this is not
the position in becoming a member of the Society and Auroville. A religious denomination must
necessarily be a new one and new methodology must be provided for a religion. Substantially, the
view taken by Sri Aurobindo remains a part of the Hindu philosophy. There may be certain
innovations in his philosophy but that would not make it a religion on that account.”
“"The words 'religious denomination' in Article 26 of the Constitution must take their colour
from the word 'religion' and if this be so, the expression 'religious denomination' must also satisfy
three conditions: (1) It must be a collection of individuals who have a system of beliefs or doctrines
which they regard as conducive to their spiritual well-being, that is, a common faith; (2) common
organisation, and (3) designation by a distinctive name. It necessarily follows that the common faith
of the community should be based on religion and in that they should have common religious tenets
48
and the basic cord which connects them, should be religion and not merely considerations of caste or
community or societal status".
94. As is decipherable form the above decisions of this Court, for any religious mutt, sect, body, sub-
sect or any section thereof to be designated as a religious denomination, it must be a collection of
individuals having a collective common faith, a common organization which adheres to the said
common faith, and last but not the least, the said collection of individuals must be labeled, branded
and identified by a distinct name.
95. There is no identified group called Ayyappans. Every Hindu devotee can go to the temple. We
have also been apprised that there are other temples for Lord Ayyappa and there 62 is no such
prohibition. Therefore, there is no identified sect. Accordingly, we hold, without any hesitation, that
Sabarimala temple is a public religious endowment and there are no exclusive identified followers of
the cult.
96. Coming to the first and the most important condition for a religious denomination, i.e., the
collection of individuals ought to have a system of beliefs or doctrines which they regard as conducive
to their spiritual well-being, there is nothing on record to show that the devotees of Lord Ayyappa
have any common religious tenets peculiar to themselves, which they regard as conducive to their
spiritual well-being, other than those which are common to the Hindu religion. Therefore, the
devotees of Lord Ayyappa are just Hindus and do not constitute a separate religious denomination.
For a religious denomination, there must be new methodology provided for a religion. Mere
observance of certain practices, even though from a long time, does not make it a distinct religion on
that account.
100. The right guaranteed under Article 25(1) has nothing to do with gender or, for that matter, certain
physiological factors, specifically attributable to women. Women of any age group have as much a
right as men to visit and enter a temple in order to freely practise a religion as guaranteed under
Article 25(1). When we say so, we are absolutely alive to the fact that whether any such proposed
exclusion of women from entry into religious places forms an essential part of a religion would be
examined at a subsequent stage.
106. The term „morality‟ occurring in Article 25(1) of the Constitution cannot be viewed with a
narrow lens so as to confine the sphere of definition of morality to what an individual, a section or
religious sect may perceive the term to mean. We must remember that when there is a violation of
the fundamental rights, the term „morality‟ naturally implies constitutional morality and any view
that is ultimately taken by the Constitutional Courts must be in conformity with the principles and
basic tenets of the concept of this constitutional morality that gets support from the Constitution.
110…As regards public morality, we must make it absolutely clear that since the Constitution was
not shoved, by any external force, upon the people of this country but was rather adopted and given
by the people of this country to themselves, the term public morality has to be appositely understood
as being synonymous with constitutional morality.
122...In no scenario, it can be said that exclusion of women of any age group could be regarded as an
essential practice of Hindu religion and on the contrary, it is an essential part of the Hindu religion to
allow Hindu women to enter into a temple as devotees and followers of Hindu religion and offer their
prayers to the deity. In the absence of any scriptural or textual evidence, we cannot accord to the
exclusionary practice followed at the Sabarimala temple the status of an essential practice of Hindu
religion.
Chandrachud.J
4. The Constitution as a fundamental document of governance has sought to achieve a transformation
of society. In giving meaning to its provisions and in finding solutions to the intractable problems of
the present, it is well to remind ourselves on each occasion that the purpose of this basic document
which governs our society is to bring about a constitutional transformation. In a constitutional
49
transformation, the means are as significant as are our ends. The means ensure that the process is
guided by values. The ends, or the transformation, underlie the vision of the Constitution. It is by
being rooted in the Constitution’s quest for transforming Indian society that we can search for answers
to the binaries which have polarised our society. The conflict in this case between religious practices
and the claim of dignity for women in matters of faith and worship, is essentially about resolving
those polarities.
11. Popular notions about what is moral and what is not are transient and fleeting. Popular notions
about what is or is not moral may in fact be deeply offensive to individual dignity and human rights.
Individual dignity cannot be allowed to be subordinate to the morality of the mob. Nor can the
intolerance of society operate as a marauding morality to control individual self-expression in its
manifest form. The Constitution would not render the existence of rights so precarious by subjecting
them to passing fancies or to the aberrations of a morality of popular opinion. The draftspersons of
the Constitution would not have meant that the content of morality should vary in accordance with
the popular fashions of the day. The expression has been adopted in a constitutional text and it would
be inappropriate to give it a content which is momentary or impermanent. Then again, the expression
‘morality’ cannot be equated with prevailing social conceptions or those which may be subsumed
within mainstream thinking in society at a given time. The Constitution has been adopted for a society
of plural cultures and if its provisions are any indication, it is evident that the text does not pursue
either a religious theocracy or a dominant ideology. In adopting a democratic Constitution, the
framers would have been conscious of the fact that governance by a majority is all about the
accumulation of political power. Constitutional democracies do not necessarily result in constitutional
liberalism. While our Constitution has adopted a democratic form of governance it has at the same
time adopted values based on constitutional liberalism. Central to those values is the position of the
individual. The fundamental freedoms which Part III confers are central to the constitutional purpose
of overseeing a transformation of a society based on dignity, liberty and equality. Hence, morality for
the purposes of Articles 25 and 26 must mean that which is governed by fundamental constitutional
principles.
12. The content of morality is founded on the four precepts which emerge from the Preamble. The
first among them is the need to ensure justice in its social, economic and political dimensions. The
second is the postulate of individual liberty in matters of thought, expression, belief, faith and
worship. The third is equality of status and opportunity amongst all citizens. The fourth is the sense
of fraternity amongst all citizens which assures the dignity of human life. Added to these four precepts
is the fundamental postulate of secularism which treats all religions on an even platform and allows
to each individual the fullest liberty to believe or not to believe. Conscience, it must be remembered,
is emphasised by the same provision. The Constitution is meant as much for the agnostic as it is for
the worshipper. It values and protects the conscience of the atheist. The founding faith upon which
the Constitution is based is the belief that it is in the dignity of each individual that the pursuit of
happiness is founded.
13…To say as a matter of interpretation that a provision in law is not subordinate to another is one
thing. But the absence of words of subjection does not necessarily attribute to the provision a status
independent of a cluster of other entitlements, particularly those based on individual freedoms. Even
where one provision is not subject to another there would still be a ground to read both together so
that they exist in harmony. Constitutional interpretation is all about bringing a sense of equilibrium,
a balance, so that read individually and together the provisions of the Constitution exist in
contemporaneous accord. Unless such an effort were to be made, the synchrony between different
parts of the Constitution would not be preserved. In interpreting a segment of the Constitution devoted
exclusively to fundamental rights one must eschew an approach which would result in asynchrony.
50
47. Going further, the Court has enquired into whether a practice is essential to religion. Essentiality
of the practice would, as the Court as held depend on whether the fundamental character of a religion
would be altered. if it were not observed. Above all, there is an emphasis on constitutional legitimacy,
which underscores need to preserve the basic constitutional values associated with the dignity of the
individual. The ephemeral distinction between religion and superstition becomes more coherent in
terms of the need to preserve fundamental constitutional values associated with human liberty.
48 In determining the essentiality of a practice, it is crucial to consider whether the practice is

prescribed to be of an obligatory nature within that religion. If a practice is optional, it has been held
that it cannot be said to be ‘essential’ to a religion. A practice claimed to be essential must be such
that the nature of the religion would be altered in the absence of that practice. If there is a fundamental
change in the character of the religion, only then can such a practice be claimed to be an ‘essential’
part of that religion.
50 Is the practice of excluding women between the ages of ten and fifty from undertaking the
pilgrimage and praying at the Sabarimala temple an essential part of religion? The texts and tenets on
which the Respondents placed reliance do not indicate that the practice of excluding women is an
essential part of religion required or sanctioned by these religious documents. At best, these
documents indicate the celibate nature of Lord Ayyappa at the Sabarimala temple. The connection
between this and the exclusion of women is not established on the material itself.
55. Of importance are some of the observations of the Kerala High Court in Mahendran The High
Court noted that even when old customs prevailed, women were allowed to visit the Temple.48 It
noted an incident where the Maharaja of Travancore, accompanied by the Maharani and the Divan,
had visited the Temple in 1115 M.E. The High Court noted that the Temple has seen the presence of
women worshippers between the ages of ten and fifty for the first rice-feeding ceremony of their
children.49 The Secretary of the Ayyappa Seva Sangham had deposed that young women were seen
in Sabarimala during the previous ten to fifteen years.50 A former Devaswom Commissioner
admitted that the first rice-feeding ceremony of her grandchild was conducted at the Sabarimala
Temple. The High Court found that during the twenty years preceding the decision, women
irrespective of age were allowed to visit the temple when it opened for monthly poojas,51 but were
prohibited from entering the temple only during Mandalam, Makaravilakku and Vishu seasons.
…..The approach of the High Court is incorrect. The High Court relied completely on the testimonies
of the Thanthris without an enquiry into its basis in religious text or whether the practice claiming
constitutional protection fulfilled the other guidelines laid down by this Court. Such an approach
militates against the fundamental role of the constitutional Court as a guardian of fundamental rights.
Merely establishing a usage54 will not afford it constitutional protection as an essential religious
practice. It must be proved that the practice is ‘essential’ to religion and inextricably connected with
its fundamental character. This has not been proved.
The assumption in such a claim is that a deviation from the celibacy and austerity observed by the
followers would be caused by the presence of women. Such a claim cannot be sustained as a
constitutionally sustainable argument. Its effect is to impose the burden of a man’s celibacy on a
woman and construct her as a cause for deviation from celibacy. This is then employed to deny access
to spaces to which women are equally entitled. To suggest that women cannot keep the Vratham is to
stigmatize them and stereotype them as being weak and lesser human beings. A constitutional court
such as this one, must refuse to recognize such claims.
75…Article 17 must be construed from the perspective of its position as a powerful guarantee to
preserve human dignity and against the stigmatization and exclusion of individuals and groups on the
basis of social hierarchism. Article 17 and Articles 15(2) and 23, provide the supporting foundation
51
for the arc of social justice. Locating the basis of Article 17 in the protection of dignity and preventing
stigmatization and social exclusion, would perhaps be the apt answer to Professor KT Shah’s
unanswered queries. The Constitution has designedly left untouchability undefined. Any form of
stigmatization which leads to social exclusion is violative of human dignity and would constitute a
form of “untouchability”. The Drafting Committee did not restrict the scope of Article 17. The
prohibition of “untouchability”, as part of the process of protecting dignity and preventing
stigmatization and exclusion, is the broader notion, which this Court seeks to adopt, as underlying the
framework of these articles.
99. Custom, usages and personal law have a significant impact on the civil status of individuals. Those
activities that are inherently connected with the civil status of individuals cannot be granted
constitutional immunity merely because they may have some associational features which have a
religious nature. To immunize them from constitutional scrutiny, is to deny the primacy of the
Constitution.
101..The decision in Narasu, in restricting the definition of the term ‘laws in force’ detracts from the
transformative vision of the Constitution. Carving out ‘custom or usage’ from constitutional scrutiny,
denies the constitutional vision of ensuring the primacy of individual dignity. The decision in Narasu,
is based on flawed premises. Custom or usage cannot be excluded from ‘laws in force’. The decision
in Narasu also opined that personal law is immune from constitutional scrutiny. This detracts from
the notion that no body of practices can claim supremacy over the Constitution and its vision of
ensuring the sanctity of dignity, liberty and equality.
105 The word ‘persons’ in certain statutes have been interpreted to include idols. However, to claim
that a deity is the bearer of constitutional rights is a distinct issue, and does not flow as a necessary
consequence from the position of the deity as a juristic person for certain purposes. Merely because
a deity has been granted limited rights as juristic persons under statutory law does not mean that the
deity necessarily has constitutional rights.
109109 The assumption by the court of the authority to determine whether a practice is or is not
essential to religion has led to our jurisprudence bypassing what should in fact be the central issue
for debate. That issue is whether the Constitution ascribes to religion and to religious
denominations the authority to PART M 153 enforce practices which exclude a group of citizens.
The exclusion may relate to prayer and worship, but may extend to matters which bear upon the
liberty and dignity of the individual. The Constitution does recognise group rights when it
confers rights on religious denominations in Article 26. Yet the basic question which needs to be
answered is whether the recognition of rights inhering in religious denominations can impact
upon the fundamental values of dignity, liberty and equality which animate the soul of the
Constitution. In analysing this issue, it is well to remind ourselves that the right to freedom of religion
which is comprehended in Articles 25, 26, 27 and 28 is not a stand alone right. These Articles of the
Constitution are an integral element of the entire chapter on fundamental rights. Constitutional articles
which recognise fundamental rights have to be understood as a seamless web. Together, they build
the edifice of constitutional liberty. Fundamental human freedoms in Part III are not disjunctive or
isolated. They exist together. It is only in cohesion that they bring a realistic sense to the life of the
individual as the focus of human freedoms. The right of a denomination must then be balanced with
the individual rights to which each of its members has a protected entitlement in Part III.
112 The anti-exclusion principle allows for due-deference to the ability of a religion to determine
its own religious tenets and doctrines. At the same time, the anti-exclusion principle postulates
that where a religious practice causes the exclusion of individuals in a manner which impairs
their dignity or hampers their access to basic goods, the freedom of religion must give way to the
over-arching values of a liberal constitution. The essential religious practices test should merit a
52
close look, again for the above reasons, in an appropriate case in the future. For the present, this
judgment has decided the issues raised on the law as it stands.
Indu Malhotra. J
7.2. The right to move the Supreme Court under Article 32 for violation of Fundamental Rights,
must be based on a pleading that the Petitioners’ personal rights to worship in this Temple have
been violated. The Petitioners do not claim to be devotees of the Sabarimala Temple where Lord
Ayyappa is believed to have manifested himself as a ‘Naishtik Brahmachari’.
7.5. Article 25(1) confers on every individual the right to freely profess, practise and propagate
his or her religion.19 The right of an individual to worship a specific manifestation of the deity,
in accordance with the tenets of that faith or shrine, is protected by Article 25(1) of the
Constitution. If a person claims to have faith in a certain deity, the same has to be articulated in
accordance with the tenets of that faith.
8.2…It is not for the courts to determine which of these practises of a faith are to be struck down,
except if they are pernicious, oppressive, or a social evil, like Sati.
9.1. Article 15 of the Constitution prohibits differential treatment of persons on the ground of
‘sex’ alone. The limited restriction on the entry of women during the notified age-group but in
the deep-rooted belief of the worshippers that the deity in the Sabarimala Temple has manifested
in the form of a ‘Naishtik Brahmachari’.
All these proposals were voted upon, and rejected by the Constituent Assembly. 27 The Assembly
considered it fit not to include ‘places of worship’ or ‘temples’ within the ambit of Draft Article
9 of the Constitution. The conscious deletion of “temples” and “places of worship” from the Draft
Article 9(1) has to be given due consideration. The contention of the learned Amicus Curiae that
the Sabarimala Temple would be included within the ambit of ‘places of public resort’ under
Article 15(2) cannot be accepted.
11.2. India is a country comprising of diverse religions, creeds, sects each of which have their
faiths, beliefs, and distinctive practises. Constitutional Morality in a secular polity would
comprehend the freedom of every individual, group, sect, or denomination to practise their
religion in accordance with their beliefs, and practises.
11.6. Constitutional Morality in a pluralistic society and secular polity would reflect that the
followers of various sects have the freedom to practise their faith in accordance with the tenets
of their religion. It is irrelevant whether the practise is rational or logical. Notions of rationality
cannot be invoked in matters of religion by courts.
The Travancore Devaswom Board, and the other Respondents have asserted that the followers of
the Sabarimala Temple constitute a religious denomination having a distinct faith, well-
identified practises, being followed since time immemorial. The worshippers of this shrine
observe the tenets of this faith, and are addressed as “Ayyappans.” The Notifications issued by the
Travancore Devaswom Board in 1955 and 1956 refer to the devotees of the Sabarimala Temple as
“Ayyappans”….“These beliefs and practises are based on the belief that Lord Ayyappa has
manifested himself in the form of a ‘Naishtik Brahmachari’. The practises include the observance
by the Ayyappans of the 41-day ‘Vratham’, which includes observing abstinence and seclusion
from the women-folk, including one’s spouse, daughter, or other relatives. This pilgrimage
includes bathing in the holy River Pampa, and ascending the 18 sacred steps leading to the
sanctum sanctorum.” 12.8. If there are clear attributes that there exists a sect, which is identifiable
53
as being distinct by its beliefs and practises, and having a collection of followers who follow the
same faith, it would be identified as a ‘religious denomination’.
13.6 The ‘essential practises test’ in its application would have to be determined by the tenets of
the religion itself. The practises and beliefs which are considered to be integral by the religious
community are to be regarded as “essential”, and afforded protection under Article 25. The only
way to determine the essential practises test would be with reference to the practises followed
since time immemorial, which may have been scripted in the religious texts of this temple. If any
practise in a particular temple can be traced to antiquity, and is integral to the temple, it must be
taken to be an essential religious practise of that temple.
14.2. All forms of exclusion would not tantamount to untouchability. Article 17 pertains to
untouchability based on caste prejudice. Literally or historically, untouchability was never
understood to apply to women as a class. The right asserted by the Petitioners is different from
the right asserted by Dalits in the temple entry movement. The restriction on women within a
certain age-band, is based upon the historical origin and the beliefs and practises of the Sabarimala
Temple.
XXXVII. Madras Bar Association v. Union of India (2014) 10 SCC 1
1. All the above cases are being disposed of by this common judgment. The issue which arises for
consideration before us, in the present bunch of cases, 1 Page 2 pertains to the constitutional validity
of the National Tax Tribunal Act, 2005 (hereinafter referred to as, the NTT Act). Simultaneously, the
constitutional validity of the Constitution (Forty-second Amendment) Act, 1976 has been assailed,
by asserting, that the same violates the basic structure of the Constitution of India (hereinafter referred
to as, the Constitution), by impinging on the power of “judicial review” vested in the High Court
64. The position of law summarized in the foregoing paragraph constitutes a declaration on the
concept of the “basic structure”, with reference to the concepts of “separation of powers”, the “rule
of law”, and “judicial review”. Based on the conclusions summarized above, it will be possible for
us to answer the first issue projected before us, namely, whether “judicial review” is a part of the
“basic structure” of the Constitution. The answer has inevitably to be in the affirmative. From the
above determination, the petitioners would like us to further conclude that the power of “judicial
review” stands breached with the promulgation of the NTT Act. This Court in Minerva Mills Ltd.
case (supra) held, that it should not be taken, that an effective alternative institutional mechanism or
arrangement for “judicial review” could not be made by Parliament. The same position was reiterated
in S.P. Sampath Kumar case (supra), namely, that “judicial review” was an integral part of the “basic
structure” of the Constitution. All the same it was held, that Parliament was competent to amend the
Constitution, and substitute in place of the High Court, another alternative institutional mechanism
(court or tribunal). It would be pertinent to mention, that in so concluding, this Court added a
forewarning, that the alternative institutional mechanism set up by Parliament through an amendment,
had to be no less effective than the High Court itself. In L. Chandra Kumar case (supra), even though
this Court held that the power of “judicial review” over legislative action vested in High Courts, was
a part of the “basic structure”, it went on to conclude that “ordinarily” the power of High Courts to
test the constitutional validity of legislations could never be ousted. All the same it was held, that the
powers vested in High Courts to exercise judicial superintendence over decisions of all courts and
tribunals within their respective jurisdictions, was also a part of the “basic structure” of the
Constitution. The position that Parliament had the power to amend the Constitution, and to create a
court/tribunal to discharge functions which the High Court was discharging, was reiterated, in Union
of India v. Madras Bar Association case (supra). It was concluded, that the Parliament was competent
54
to enact a law, transferring the jurisdiction exercised by High Courts, in regard to any specified
subject, to any court/tribunal. But it was clarified, that Parliament could not transfer power vested in
the High Courts, by the Constitution itself. We therefore have no hesitation in concluding, that
appellate powers vested in the High Court under different statutory provisions, can definitely be
transferred from the High Court to other courts/tribunals, subject to the satisfaction of norms declared
by this Court. Herein the jurisdiction transferred by the NTT Act was with regard to specified subjects
under tax related statutes. That, in our opinion, would be permissible in terms of the position
expressed above. Has the NTT Act transferred any power vested in courts by the Constitution? The
answer is in the negative. The power of “judicial review” vested in the High Court under Articles 226
and 227 of the Constitution, has remained intact.
XXXVIII. Madras Bar Association v. Union of India (2021)
2. A brief reference to the historical background of tribunalisation in this country is necessary for a
better appreciation of the dispute that falls for adjudication in this Writ Petition. The Statement of
objects and reasons for insertion of Articles 323-A and 323-B in the Constitution of India by the
Forty-Second Amendment is as follows:
“To reduce the mounting arrears in High Courts and to secure the speedy disposal of
service matters, revenue matters and certain matters of special importance in the context of
the socio-economic development and progress, it is considered expedient to provide for
administrative and other tribunals for dealing with such matters while preserving the
jurisdiction of the Supreme Court in regard to such matters under Articles 136 of the
Constitution. It is also necessary to make certain modifications in the Writ Jurisdiction of the
High Courts under Article 226.”
3. 3. The vires of the Administrative Tribunals Act, 1985, enacted under Article 323-A (1), was
challenged in S.P. Sampath Kumar v. Union of India & Ors. 5 before this Court. The main ground
taken in the writ petition was that the jurisdiction of the High Court under Article 226 and Article
227 cannot be barred. It was held by this Court in S.P. Sampath Kumar (supra) that in place of a High
Court, the Parliament can set up an effective alternative institutional mechanism with the power of
judicial review vested in it, by placing reliance on the observation made in Minerva Mills Ltd. & Ors.
v. Union of India & Ors. 6 . However, this Court was of the firm opinion that the tribunals should be
a real substitute to High Courts. While scrutinizing Chapter II of the Act which dealt with the
establishment of tribunals, this Court expressed its view that a short tenure of Members of tribunals
would be a deterrent for competent persons to seek appointment as Members.
4. The correctness of the judgment of this Court in S.P. Sampath Kumar (supra) was considered by a
larger bench of this Court in L. Chandra Kumar v. Union of India & Ors. 7 which found the exclusion
of the jurisdiction of the High Courts and the Supreme Court in Articles 323-A and 323-B to be
unconstitutional. This Court declared that tribunals shall continue to act like courts of first instance
in respect of areas of law for which they have been constituted. 5. A High-Level Committee on law
relating to insolvency of companies was constituted by the Union of India under the Chairmanship of
Justice V. Balakrishna Eradi, retired Judge of this Court who made certain recommendations for
setting up the National Company Law Tribunal (hereinafter referred to as NCLT) combining the
powers of the Company Law Board under the Companies Act, 1956 (hereinafter referred to as the
1956 Act), BIFR and AAIFR under the Sick Industrial Companies (Special Provisions) Act, 1985
and the jurisdiction and powers relating to winding up vested in the High Courts. The Government
accepted the recommendations and passed the Companies (Second Amendment) Act, 2002. The
reason for the said amendment was to avoid multiplicity of litigation before various fora and to reduce
pendency of cases. The Madras Bar Association filed a writ petition in the Madras High Court
challenging the constitutional validity of the said amendment to the 1956 Act on the ground of
legislative incompetence and violation of the doctrines of separation of powers and independence of
55
the judiciary. The High Court upheld the validity of the Amendment Act of 2002 but pointed out
certain defects in the provisions of the Act. The High Court declared that the NCLT and the National
Company Law Appellate Tribunal (hereinafter referred to as NCLAT) cannot be constituted without
removing the defects pointed out in the judgment. The judgment of the High Court was upheld by
this Court in Union of India v. R. Gandhi, President, Madras Bar Association (hereinafter referred to
as MBA-I). Parts I-B and I-C of the 1956 Act were directed to be modified in accordance with the
observations made in the judgment.
6. The Companies Act, 2013 (hereinafter referred to as the 2013 Act), which replaced the 1956 Act,
contained provisions for establishment of the NCLT and the NCLAT. Madras Bar Association filed
a writ petition under Article 32 of the Constitution challenging the formation of NCLT under Section
408 of the 2013 Act. Several other provisions pertaining to constitution of the NCLT and the NCLAT,
qualifications for appointment of Members and Chairperson / President and constitution of the
Selection Committee were also assailed in the said writ petition. This Court in MadraS Bar
Association v. Union of India & Anr. 9 (hereinafter referred to as MBA-II) upheld the validity of
Section 408 by which the NCLT was constituted. However, clauses (a) and (e) of Section 409(3)
relating to the appointment of Technical Members were held to be invalid. Section 411(3), which
provided qualifications of Technical Members, and Section 412(2), which dealt with the constitution
of the Selection Committee, were also held to be invalid. A direction was given to the Union of India
to scrupulously follow the judgment in MBA-I and set right the defects that were pointed out therein
by bringing the provisions in accord with the MBA-I judgment.
8. A Notification was issued by the Central Government on 01.06.2017 by which the Tribunal,
Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service
of Members) Rules, 2017 (hereinafter referred to as the 2017 Rules) were made. The validity of Part
XIV of the Finance Act, 2017 and the 2017 Rules framed thereunder was questioned in Rojer Mathew
(supra). The petitioners contended that para XIV of the Finance Act, 2017 cannot be classified as a
money bill. The question of money bill was referred to a larger bench. The validity of Section 184 of
the Finance Act, 2017 was upheld. The 2017 Rules were held to be contrary to the parent amendment
and therefore, struck down. The Central Government was directed to reformulate the rules strictly in
accordance with the principles delineated by this Court in R.K. Jain v. Union of India 10 , L. Chandra
Kumar (supra), Madras Bar Association v. Union of India & Anr. 11 and Gujarat Urja Vikas Nigam
Ltd. v. Essar Power Ltd. 12 The Central Government was directed to formulate a new set of rules
which would ensure non-discriminatory and uniform conditions of service, including assured tenure.
As an interim order, this Court in Rojer Mathew (supra) directed that the appointments to the
Tribunals/ Appellate Tribunals and the service conditions shall be in terms of the respective statutes
before the enactment of the Finance Bill, 2017. Union of India was given liberty to seek modification
of the orders after framing fresh rules. On 12.02.2020, a notification was issued by the Central
Government by which the Tribunal, Appellate Tribunal and other Authorities (Qualifications,
Experience and other Conditions of Service of Members) Rules, 2020 (hereinafter referred to as the
2020 Rules) were framed. The validity of the 2020 Rules was challenged by Madras Bar Association.
After detailed deliberations on the issues involved, this Court by its judgment in Madras Bar
Association v. Union of India & Anr. 13 (hereinafter referred to as MBA-III) disposed of the writ
petition GIVNG CERTAIN DIRECTIONS.
“The Union of India shall constitute a National Tribunals Commission which shall act as an
independent body to supervise the appointments and functioning of Tribunal and other such directions
about the composition of the selection body”.
Thereafter, the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021
(hereinafter referred to as the Ordinance) was promulgated on 04.04.2021. Chapter II thereof makes
amendments to the Finance Act, 2017.
18. De l’esprit des lois was published in 1748 by Charles de Secondat, Baron de Montesquieu.
According to Montesquieu, there can be no liberty where the legislative and executive powers are
56
united in the same person or body of Magistrates. He argued that there is no liberty, if the judicial
power is not separated from the legislative and executive. He further noted that there would be an end
of everything, were the same man or same body, whether of the nobles or of the people, to exercise
those three powers, that of enacting laws, that of executing the public resolutions, and of trying the
causes of individuals.
ADMINISTRAIVE LAW
I. CENTRAL PUBLIC INFORMATION OFFICER, SUPREME COURT OF INDIA VERSUS

SUBHASH CHANDRA AGARWAL (2019)
8. This order while referring the matter to a larger bench had framed the following substantial
questions of law as to the interpretation of the Constitution, which read as under:
“1. Whether the concept of independence of judiciary requires and demands the
prohibition of furnishing of the information sought? Whether the information sought for
amounts to interference in the functioning of the Judiciary?
2. Whether the information sought for cannot be furnished to avoid any erosion in the
credibility of the decisions and to ensure a free and frank expression of honest opinion by all the
constitutional functionaries, which is essential for effective consultation and for taking the right
decision?
3. Whether the information sought for is exempt under Section 8(1)(j) of the Right to
Information Act?”
11. Terms ‘competent authority’ and ‘public authority’ have been specifically defined in clauses
(e) and (h) to Section 2 of the RTI Act, which read: “
(e) "competent authority" means— (i) the Speaker in the case of the House of the People
or the Legislative Assembly of a State or a Union territory having such Assembly and the
Chairman in the case of the Council of States or Legislative Council of a State; (ii) the Chief Justice
of India in the case of the Supreme Court; (iii) the Chief Justice of the High Court in the case of
a High Court; (iv) the President or the Governor, as the case may be, in the case of other
authorities established or constituted by or under the Constitution; (v) the administrator
appointed under article 239 of the Constitution;
(h) "public authority" means any authority or body or institution of self-government
established or constituted— (a) by or under the Constitution; (b) by any other law made by
Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order
made by the appropriate Government, and includes any— (i) body owned, controlled or
substantially financed; (ii) non-Government organisation substantially financed, directly or
indirectly by funds provided by the appropriate Government;”
13. Article 124 of the Constitution, which relates to the establishment and constitution of the
Supreme Court of India, states that there shall be a Supreme Court of India consisting of a Chief
Justice and other judges. It is undebatable that the Supreme Court of India is a ‘public authority’,
as defined vide clause (h) to Section 2 of the RTI Act as it has been established and constituted by
or under the Constitution of India. The Chief Justice of India as per sub-clause (ii) in clause (e) to
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Section 2 is the competent authority in the case of the Supreme Court. Consequently, in terms of
Section 28 of the RTI Act, the Chief Justice of India is empowered to frame rules, which have to
be notified in the Official Gazette, to carry out the provisions of the RTI Act
14. The Supreme Court of India, which is a ‘public authority’, would necessarily include the office
of the Chief Justice of India and the judges in view of Article 124 of the Constitution. The office
of the Chief Justice or for that matter the judges is not separate from the Supreme Court, and is
part and parcel of the Supreme Court as a body, authority and institution. The Chief Justice and
the Supreme Court are not two distinct and separate ‘public authorities’, albeit the latter is a
‘public authority’ and the Chief Justice and the judges together form and constitute the ‘public
authority’, that is, the Supreme Court of India. The interpretation to Section 2(h) cannot be made
in derogation of the Constitution. To hold to the contrary would imply that the Chief Justice of
India and the Supreme Court of India are two distinct and separate public authorities, and each
would have their CPIOs and in terms of subsection (3) to Section 6 of the RTI Act an application
made to the CPIO of the Supreme Court or the Chief Justice would have to be transferred to the
other when ‘information’ is held or the subject matter is more closely connected with the
‘functions’ of the other. This would lead to anomalies and difficulties as the institution, authority
or body is one. The Chief Justice of India is the head ofthe institution and neither he nor his office
is a separate public authority.
15. This is equally true and would apply to the High Courts in the country as Article 214 states
that there shall be a High Court for each State and Article 216 states that every High Court shall
consist of a Chief Justice and such other judges as the President of India may from time to time
deem it appropriate to appoint.
19. When information is accessible by a public authority, that is, held or under its control, then
the information must be furnished to the information seeker under the RTI Act even if there are
conditions or prohibitions under another statute already in force or under the Official Secrets
Act, 1923, that restricts or prohibits access to information by the public. In view of the non-
obstante clause in Section 2211 of the RTI Act, any prohibition or condition which prevents a
citizen from having access to information would not apply. Restriction on the right of citizens is
erased. However, when access to information by a public authority itself is prohibited or is
accessible subject to conditions, then the prohibition is not obliterated and the pre-conditions are
not erased.
At the outset, we would reproduce Section 8 of the RTI Act, which reads as under:
“8. (1) Notwithstanding anything contained in this Act, there shall be no obligation to
give any citizen,— (a) information, disclosure of which would prejudicially affect the sovereignty
and integrity of India, the security, strategic, scientific or economic interests of the State, relation
with foreign State or lead to incitement of an offence; (b) information which has been expressly
forbidden to be published by any court of law or tribunal or the disclosure of which may
constitute contempt of court; (c) information, the disclosure of which would cause a breach of
privilege of Parliament or the State Legislature; (d) information including commercial
confidence, trade secrets or intellectual property, the disclosure of which would harm the
competitive position of a third party, unless the competent authority is satisfied that larger public
interest warrants the disclosure of such information; (e) information available to a person in his
fiduciary relationship, unless the competent authority is satisfied that the larger public interest
warrants the disclosure of such information; (f) information received in confidence from foreign
58
Government; (g) information, the disclosure of which would endanger the life or physical safety
of any person or identify the source of information or assistance given in confidence for law
enforcement or security purposes; (h) information which would impede the process of
investigation or apprehension or prosecution of offenders; (i) cabinet papers including records of
deliberations of the Council of Ministers, Secretaries and other officers: Provided that the
decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the
decisions were taken shall be made public after the decision has been taken, and the matter is
complete, or over: Provided further that those matters which come under the exemptions
specified in this section shall not be disclosed; (j) information which relates to personal
information the disclosure of which has no relationship to any public activity or interest, or
which would cause unwarranted invasion of the privacy of the individual unless the Central
Public Information Officer or the State Public Information Officer or the appellate authority, as
the case may be, is satisfied that the larger public interest justifies the disclosure of such
information: Provided that the information which cannot be denied to the Parliament or a State
Legislature shall not be denied to any person. (2) Notwithstanding anything in the Official Secrets
Act, 1923 nor any of the exemptions permissible in accordance with sub-section (1), a public
authority may allow access to information, if public interest in disclosure outweighs the harm to
the protected interests. (3) Subject to the provisions of clauses (a), (c) and (i) of sub-section (1),
any information relating to any occurrence, event or matter which has taken place, occurred or
happened twenty years before the date on which any request is made under section 6 shall be
provided to any person making a request under that section: Provided that where any question
arises as to the date from which the said period of twenty years has to be computed, the decision
of the Central Government shall be final, subject to the usual appeals provided for in this Act.”
Sub-section (1) of Section 8 begins with a non-obstante clause giving primacy and overriding
legal effect to different clauses under the sub-section in case of any conflict with other provisions
of the RTI Act. Section 8(1) without modifying or amending the term ‘information’, carves out
exceptions when access to ‘information’, as defined in Section 2(f) of the RTI Act would be
denied. Consequently, the right to information is available when information is accessible under
the RTI Act, that is, when the exceptions listed in Section 8(1) of the RTI Act are not attracted.
In terms of Section 3 of the RTI Act, all citizens have right to information, subject to the
provisions of the RTI Act, that is, information ‘held by or under the control of any public
authority’, except when such information is exempt or excluded.
27…Section 8(2) acknowledges and empowers the public authority to lawfully disclose
information held by them despite the exemptions under sub-section (1) to Section 8 if the public
authority is of the opinion that the larger public interest warrants disclosure. Such disclosure can
be made notwithstanding the provisions of the Official Secrets Act. Section 8(2) does not create
a vested or justiciable right that the citizens can enforce by an application before the PIO seeking
information under the RTI Act. PIO is under no duty to disclose information covered by
exemptions under Section 8(1) of the RTI Act. Once the PIO comes to the conclusion that any of
the exemption clauses is applicable, the PIO cannot pass an order directing disclosure under
Section 8(2) of the RTI Act as this discretionary power is exclusively vested with the public
authority.
59
59. Reading of the aforesaid judicial precedents, in our opinion, would indicate that personal
records, including name, address, physical, mental and psychological status, marks obtained,
grades and answer sheets, are all treated as personal information. Similarly, professional records,
including qualification, performance, evaluation reports, ACRs, disciplinary proceedings, etc. are
all personal information. Medical records, treatment, choice of medicine, list of hospitals and
doctors visited, findings recorded, including that of the family members, information relating to
assets, liabilities, income tax returns, details of investments, lending and borrowing, etc. are
personal information. Such personal information is entitled to protection from unwarranted
invasion of privacy and conditional access is available when stipulation of larger public interest
is satisfied. This list is indicative and not exhaustive.
(N.V. RAMANNA.J)
40. That the right to information and right to privacy are at an equal footing. There is no
requirement to take an a priori view that one right trumps other. Although there are American
cases, which have taken the view that the freedom of speech and expression trumps all other
rights in every case. However, in India we cannot accord any such priority to the rights.
(D.Y. CHANDRACHUD J.)
56. Judicial independence does not mean the insulation of judges from the rule of law. In a
constitutional democracy committed to the rule of law and to the equality of its citizens, it cannot
be countenanced that judges are above the law. The notion of a responsible judiciary furthers the
ideal for which an independent judiciary was envisaged. It is the exercise of the decision making
authority guaranteed by judicial independence in a just and responsible manner, true to the ethos
of judicial office that sub-serves the founding vision of the judiciary. Professor Stephen Burbank
has characterized judicial independence and accountability as "different sides of the same coin”.
69. The Chief Justice of India in exercising his official functions in accordance with the 1997
resolution while holding asset information of other judges does not act for and on behalf of other
judges of the Supreme Court. There exists no fiduciary relationship between them.
97…Thus, it emerges from the discussion that certain category of information such as medical
information, details of personal relations, employee records and professional income can be
classified as personal information. The question of whether such information must be disclosed
has to be determined by the CPIO on a case to case basis, depending on the public interest
demonstrated in favour of disclosure.
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REFERENCE MATERIAL………………………………………………….Dr.

II. BCCI v. Cricket Association of Bihar (2015)3 SCC 251.

III. Dr. Janet Jeyapaul v. SRM University (2015) 16 SCC530

IV. Bashesher Nath v. CIT AIR 1959 SC 149

V. State of Bombay v. F.N. Balsara AIR 1951 SC 318

VI. RMDC v. Union of India AIR 1957 SC 628

VII. Shayara Bano v. Union of India (2017) 9 SCC 1

F.6 Evolving an analytical framework for indirect discrimination in India:

IX. Rohtas Bhankar v. Union of India (2014) 8 SCC 872

X. Jarnail Singh II v. Lachmi Narain Gupta 2022 SCC Online SC 96.

XI. BK Pavitra v. Union of India 2017 4 SCC 620.

XII. BK Pavitra v. Union of India. 2017(2)

XIII. Mukesh Kumar v. State of Uttarakhand (2020) 3 SCC 1

Aided and Unaided Educational Institution

Doctrine Of Proportionality Explained & Applied:

XVII. Joseph Shine v. Union of India (2019) 3 SCC 39.

XVIII. State of Karnataka v. Appa Balu Ingale AIR 1993 SCC1126

XIX. Safai Karmachari Andolan v. Union of India (2014) 11 SCC 224.

XX. Prathvi Raj Chauhan v. Union of India (2020) 4 SCC 727.

XXI. Balaji Raghavan v. Union of India (1996) 1 SC 361

XXII. Shreya Singhal v. Union of India (2015) 5 SCC 1

Chilling Effect And Overbreadth

165. Tapping of telephones is a serious invasion of privacy. It is a variety of technological

XXIV. Anuradha Bhasin v. Union of India (2020) 3 SCC 637

XXVI. Communist Party of India (M) v. Bharat Kumar (1998) 1 SCC201

XXVII. Chintaman Rao v. State of M.P. AIR 1951 SC 118

XXVIII. Narendra Kumar v. Union of India AIR 1960 SC 430

XXX. Tehseen S Poonawala v. Union of India (2018) 9 SCC 501

XXXI. Animal Welfare Board v. A. Nagaraja (2014) 7 SCC 547

ARTICLES 15 & 16 AND TRANSGENDERS

ARTICLE 19(1)(a) AND TRANSGENDERS

XXXIII. Navtej Singh Johar v. Union of India (2018) 1 SCC 791

Constitutional morality and Section 377 IPC

49 Constituent Assembly Debates, Vol. 7 (4th November 1948)

XXXVI. Indian Young Lawyers Association v. State of Kerala (2019) 11 SCC 1

48 In determining the essentiality of a practice, it is crucial to consider whether the practice is

XXXVII. Madras Bar Association v. Union of India (2014) 10 SCC 1

XXXVIII. Madras Bar Association v. Union of India (2021)

I. CENTRAL PUBLIC INFORMATION OFFICER, SUPREME COURT OF INDIA VERSUS

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