Latest blog entries - Legally India Sun, 04 Oct 2015 10:20:31 +0530 Joomla! - Open Source Content Management en-gb Read Supreme Court’s order imposing cost of ₹ 5 lakh for withdrawing Appeals
Justice Ranjan Gogoi

Justice Ranjan Gogoi

The Supreme Court of India has imposed a cost of Rs. 5 lakh on two public sector corporations for withdrawing appeals without circulating a letter before the Bench intimating it of the withdrawal.

The bench of Justices Ranjan Gogoi and NV Ramana has imposed this cost on Kerala State Electricity Board Ltd and NTPC Vidyut Vyapar Nigam Ltd for a leave to withdraw their appeals filed against Essar Poswer MP Ltd.

Listed as item 12 before the bench on October 1, 2012, when the matter was called for hearing, appellants’ counsel sought permission to withdraw the case. However, as reported by Bar and Bench, presiding judge, Justice Gogoi was irked by the fact that no letter was circulated to intimate the bench of the withdrawal. Justice Gogoi said:

You cannot come and go like this as per your wishes. I had read 800 pages and now you want to withdraw the petition. [via BnB]

Court then ordered that if the case is to be withdrawn, it shall be at a condition of payment of a cost of Rs. 5 lakh. It ordered:

1. Learned counsel appearing for the appellants submits that he may be allowed to withdraw the present appeals. We are reluctant. In any case leave to withdraw the appeals cannot be unconditional in view of the judicial time expended. Consequently, leave is granted subject to payment of costs of Rs.5,00,000/- (Rupees Five lakh) to the Supreme Court Legal Services Committee within four weeks from today.

2. Appeals are ordered as above.

The Appeals

Case 1Civil Appeal No. 4038 of 2015
Kerala State Electricity Board Ltd v. Essar Poswer MP Ltd. & Ors
Case 2Civil Appeal No. 4210 of 2015
NTPC Vidyut Vyapar Nigam Ltd v. Essar Poswer MP Ltd. & Ors

The two appeals were filed under Section 125 of the Electricity Act, 2003 against the judgment dated April 16, 2015 of the Appellate Tribunal for Electricity, New Delhi in Appeal No. 51 of 2015.

On May 11, 2015, the same bench had issued notice in the matter without granting a stay at that time. When the matter was sought to be withdrawn on October 1, matter was listed before the Court in the category of ‘Incomplete After Notice/Adjourned Matters’.

Read complete order:

Mohit Singh

Mohit Singh

Mohit Singh is an advocate at the Supreme Court of India.

Mohit Singh

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Original author: Mohit Singh

Read More]]> (OneLawStreet) Litigation, arbitration & dispute resolution Sat, 03 Oct 2015 19:06:38 +0530
Election Disqualifications and the Constituent Assembly Debates

On this blog, I – as well as guest essayists – have written extensively about Rajasthan and Haryana’s moves to impose educational and other restrictions upon the right to contest Panchayati Raj elections. One way or another, this issue will be resolved next week, when a two-judge bench of the Supreme Court decides the constitutional validity of Haryana’s Panchayati Raj Act (the operation of the Act has been stayed in the meantime). Recall that the Haryana Act (as amended) disqualifies people from contesting Panchayat elections if they haven’t been educated beyond Class VIII (the bar is lower for certain constituencies), if they do not have a functional toilet in their house, and if they owe arrears of electricity bills, agricultural cooperative loans, etc. Previously on this blog, we have argued that such provisions are unconstitutional on the grounds of Article 14 (equal protection of laws), 15(1) (documented disparate impact upon women), and 19(1)(a) (the freedom to vote being part of the freedom of expression). In this essay, I want to explore the framers’ ideas about suffrage, and how educational and property-based disabilities are inconsistent with those ideas.

Relying upon the Constituent Assembly Debates to advance an argument against electoral disabilities is a perilous enterprise. This is for two reasons. First, the Constitution itself seems to leave the matter of electoral qualifications to the statute. Article 84, which deals with eligibility for membership of Parliament, requires a candidate to be a citizen of India, at least 25 or 30 years 0f age (depending upon the House), and possessing “such other qualifications as may be prescribed in that behalf by or under any law made by Parliament.” Article 102 disqualifies an individual from membership of either House if he holds a governmental office of profit, is of unsound mind, is an undischarged solvent, is a foreign citizen, or “if he is so disqualified by or under any law made by Parliament.” Part IX of the Constitution, which contains the provisions for Panchayati Raj, makes no substantial departure from this position. Article 243F states that a person may be disqualified from being chosen as a member of the Panchayat if “he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned… [or] if he is so disqualified by or under any law made by the Legislature of the State.” A combined reading of all these provisions suggests that it is open to the legislature to introduce disqualifications through legislation (such as the Representation of the People Act).

Secondly, there is a remark made by Ambedkar on the 2nd of June, 1949. Responding to an amendment made by K.T. Shah, that literacy requirements be incorporated into the Constitution, Ambedkar replied that “I think that is a matter which might as well be left to the Legislatures. If the Legislatures at the time of prescribing qualifications feel that literacy qualification is a necessary one, I no doubt think that they will do it.” This seems to suggest that the framers (or at least, Ambedkar) believed that the powers given to Parliament under the omnibus clauses of (what became) Articles 84 and 102, included the power to prescribe literacy qualifications.

I will argue, however, that the overall tenor of the Constituent Assembly Debates makes it clear that educational requirements go against the concept of suffrage and democracy that the framers meant to write into the Constitution. As Dworkin has correctly pointed out, there might often be a clash between the framers’ intentions about the words they were using, and what they intended the words would do – in other words, between the concepts that they laid down in the Constitution, and the concrete conceptions that they thought were the correct interpretation of those concepts. I will attempt to show that Ambedkar’s conception of suffrage and political candidature that is reflected in his comment of 2nd June 1949, is at odds with what comes out of the rest of the Debates.

Let me foreground this discussion by drawing two important distinctions about the electoral process. First: historically, voting (and concomitantly, standing for elected office) has been considered to be either a privilege (i.e., a benefit extended to you by the State in return for some service, such as fighting in the army, paying tax etc.), or a right. Secondly: the purpose of an election can either be that it is expected to return the best (or most competent) candidate to power, or it can be that the person chosen by the electors is returned to power.

These distinction are important because of the following reasons. If voting/standing for office is a mere privilege, then obviously there cannot be any antecedent claim if the legislature decided to take it away by passing a law to that effect. On this interpretation, the omnibus clauses in Articles 84 and 102 provide a carte blanche to the legislature to impose whatever disqualifications it chooses to. If, on the other hand, voting is a right, then the discretion of the lawmaker to take it away must accordingly be curbed: a law taking away a right has to pass a higher threshold of justification. Secondly, if the purpose of the election is to select the most competent candidate, then conceivably, the legislature may impose a priori disqualifications on the basis that these qualifications create a preliminary threshold of competence, ensuring that people who fall below this threshold aren’t even eligible to participate in the process (whether as electors, or as candidates). In fact, this is precisely the justification that Rajasthan and Haryana have used in defence of their laws: Rajasthan drew a link between education and accountability, for instance. On the other hand, if the purpose of suffrage is to give effect to the choice of the people, then there is no justification for limiting that choice on the assumption that by allowing everyone to contest, there is a possibility of the wrong, or less qualified candidates, being chosen.

With this in mind, let us return to the Constituent Assembly Debates. The first important thing to note is that there was a significant dispute in the Assembly over whether or not to enshrine the principle of universal suffrage into the Constitution. In his proposed amendment, H.V. Kamath noted the extent of illiteracy in the country and the dangers it presented, and expressed regret that the franchise itself had not been restricted on grounds of literacy. His amendment – which Ambedkar rejected in the quotation abstracted above – was a second-best option aimed at limiting the damage wrought by universal suffrage. For Alladi Krishnaswamy Ayyar, on the other hand, this was one of the crowning achievements of the Constitution. He noted:

“More than any other provision in the Constitution. I should think the boldest step taken by this Assembly is in the matter of universal adult suffrage with a belief in the common man and in his power to shape the future of the country.”

Subsequently, during the final debates on 23rd November 1949, he observed that “in spite of the ignorance and illiteracy of the large mass of the Indian people, the Assembly has adopted the principle of adult franchise with an abundant faith in the common man and the ultimate success of democratic rule and in the full belief that the introduction of democratic government on the basis of adult suffrage will bring enlightenment and promote the well-being, the standard of life, the comfort and the decent living of the common man. The principle of adult suffrage was adopted in no lighthearted mood but with the full realisation of its implications. If democracy is to be broad based and the system of governments that is to function is to have the ultimate sanction of the people as a whole, in a country where the large mass of the people are illiterate and the people owning property are so few, the introduction of any property or educational qualifications for the exercise of the franchise would be a negation of the principles of democracy… This Assembly deserves to be congratulated on adopting the principle of adult suffrage and it may be stated that never before in the history of the world has such an experiment been so boldly undertaken.”

That same day, R.V. Dhulekar also stated that “a very great achievement is adult suffrage. Every person who is twenty-one years of age, who does not possess any of the disqualifications enumerated in the Constitution, has an opportunity of rising to the Presidentship, the highest honour that this country can give. And that is a great thing.” Soon after, Frank Anthony decried what the Assembly had done, observing that “I am one of those who can only express the very sincere hope that when the next elections are fought or the elections after that and with an electorate which will be predominantly illiterate, with an electorate which will be predominantly unaware of exercising the franchise on a basis of being able to analyse political issues in a rational way, that this electorate will not be stampeded by empty slogans by meretricious shibboleths into chasing political chimeras which will not only lead to chaos but to the very destruction of the democracy which we have chosen to give them.”

What these exchanges reveals is that there was a common understanding that the Constitution had conferred universal suffrage (and, at least for Dhulekar, by extension, the right to stand for elections), both among its supporters and its opponents. As the excerpts show, opponents feared that an illiterate populace would fail to exercise its choice in the “correct” way; supporters relied upon the basic idea that democratic legitimacy is founded upon popular sanction. But whether supporter or opponent, there was consensus over what the Constitution actually said. This was reflected finally in what are now Articles 325 and 326 of the Constitution. Article 326 states that “The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than twenty one years of age on such date as may be fixed in that behalf by or under any law made by the appropriate legislature and is not otherwise disqualified under this constitution or any law made by the appropriate Legislature on the ground of non residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election…” Article 325, by way of abundant caution, states that “no person shall be ineligible for inclusion in any such [electoral] roll or claim to be included in any special electoral roll for any such constituency on grounds only of religion, race, caste, sex or any of them.”

The phrase “shall be entitled” in Article 326 answers our first question: suffrage, under the Constitution, is a question of right, not of privilege. And the rejection of the arguments for literacy requirements along with their underlying bases as potential disqualifications (the language of Article 326 is exhaustive) answers the second question: the vision of democracy is one based not on ensuring the most “competent” candidate wins (by whatever a priori definition of “competence”), but on giving effect to the people’s choice. Obviously, prior screening out of candidates violates that principle.

But what of Articles 84 and 102, it may be asked. Does not the Constitution itself stipulate the principles of disqualification? Let us read the disqualifications of 102 more closely: holding an office of profit, unsoundness of mind, being an undischarged insolvent, and not being a citizen of India. What is common to these is that they relate not to the quality of the individual candidate, but to maintaining the integrity of the electoral process. Holding an office of profit, citizenship, unsoundness of mind and insolvency are not related to how well a candidate might perform while in elected office, but are aimed at tackling possible conflicts of interest and propensity to corruption (admittedly, unsoundness of mind is uneasily close to a candidate-based disqualification, although it can certainly be argued that there is a qualitative difference between illiteracy and unsoundness of mind). This also helps us in interpreting the omnibus clause: “if he is so disqualified by or under any law made by Parliament.” Disqualifications enacted in law must also cleave to the principle of maintaining the integrity of the electoral process (e.g., disqualification of all persons convicted of cognisable offences), but cannot be imposed simply on the basis of some a priori ideas about what makes a good or effective candidate. As Ambedkar himself noted during the debate, the purpose of putting in a few of the disqualifications into the Constitution was to provide for some “basic” principles. What I have tried to argue is that the disqualifications that the Assembly did finally put in are to be understood in the context of the two key questions I asked earlier: the nature of suffrage, and the purpose of elections. The answers that come out of a study of the Debates make the case that any further disqualifications imposed by Parliament must also be faithful to them. The restrictions under the Rajasthan and Haryana Acts manifestly fail to be: educational requirements, requirements of toilets, and of clearing existing arrears are all justified by an a priori invocation of the probably competent candidate. This goes against the principles of universal suffrage, and also, by denying the voters the exercise of their full and unconstrained choice by screening out certain candidates, it defeats the reason why the framers put in place the mechanism of elections as the bulwark of Indian democracy.

How might this be tangibly used in the constitutional challenge to the Act? One option is under the broad Article 14 argument. As held by the Supreme Court in the Sanction for Prosecution case, under Article 14, the State must not only show intelligible differentia and rational nexus, but also a legitimate purpose. We have tried to argue here that selection of the most “competent” candidate is not a legitimate purpose in the context of elections. Consequently, if the State cannot find any other justification but this, the requirements of the Act must fail Article 14 scrutiny.

N.B. Much of the argument here has focused upon the educational disqualification. It may be noted that the property disqualification (having a functional toilet in your house) is an even more blatant constitutional violation. In fact, on 2nd June 1949, as part of the same speech I quoted at the beginning of this essay, Ambedkar expressly stated that it was not the purpose of the omnibus clause to permit property-based disqualifications.

Original author: gautambhatia1988

Read More]]> (Gautam.Bhatia) Constitutional Law Thu, 01 Oct 2015 18:06:27 +0530
Supreme Court issues notice to Somnath Bharti’s wife to ask if she wants a mediation [Read Order]


Special Leave Petition to Appeal (Crl ) No. 8183 of 2015
(Arising out of impugned final judgment and order dated 22/09/2015 in BA No. 1952/2015 passed by the High Court of Delhi at New Delhi)

Somnath Bharti ……………………………………………………………….. Petitioner


State (Government of NCT Delhi) ……………………………………… Respondent

Date: 1 October 2015

This petition was called on for hearing today.


  • Hon’ble The Chief Justice of India HL Dattu
  • Hon’ble Mr. Justice Amitava Roy


For Petitioner:

Mr. Gopal Subramanium, Sr. Adv., Mr. Pramod Swarup, Sr. Adv., Ms. Preena Swarup, Adv., Mr. Vijay Aggarwal, Adv., Ms. Sushma Verma, Adv., Mr. Lokendra, Adv., Ms. Sushma Verma, Adv., Mr. Mudit Jain, Adv., Ms. Samprikta Ghoshal,Adv., Mr. Arjun Taneja, Adv., Mr. Ashul Aggarwal, Adv., Mr. Pulkit Kamboj, Adv., Mr. Prateek Chadha, Adv.
Ms. Pareena Swarup, Adv., Mr. Barkkha Rastogi, Adv., Md. Shahid Anwar,Adv.

For Respondent:

Mr. Mukul Rohatgi, A.G., Mr.Ranjit Kumar, S.G., Mr. Tushar Mehta, ASG, Ms. V. Mohana, Sr. Adv., Mr. R. Balasubramanian, Adv., Mr. Santosh Kumar, Adv., Mr. K.L. Janjani, Adv., Mr. D.S. Mahra, Adv., Mr. Shalendra Babbar, Spl. Public Prosecutor


Shri Gopal Subramanium, learned senior counsel appearing on behalf of the petitioner, brings to our notice a letter dated 01.10.2015 addressed to Smt. Lipika Mitra, w/o Somnath Bharti, r/o B4, Plot No.32, Shriram Apartment, Sector 4, Dwarka, New Delhi. In that letter, a statement is made by the learned counsel for the petitioner- Somnath Bharti that in the interest of the children, mediation requires to be held between the parties. Therefore, a request is made to issue appropriate notice to Smt. Lipika Mitra, w/o Somnath Bharti, so that she can participate in the proceedings before this Court.

We appreciate the fairness of the learned counsel for the petitioner – Somnath Bharti in writing letter dated 01.10.2015. This is what we expect from every other counsel.

Taking into consideration, the spirit of the letter dated 01.10.2015, we are of the view that appropriate notice requires to be issued to Smt. Lipika Mitra.

Accordingly, we direct the Registry to serve a copy of this special leave petition papers and letter dated 01.10.2015 along with notice on Smt. Lipika Mitra.

Call on 05.10.2015 at 10:30 a.m as first

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Original author: 1 Law Street

Read More]]> (OneLawStreet) Litigation, arbitration & dispute resolution Thu, 01 Oct 2015 15:40:37 +0530
Cyber Extortion: Ransom and Cyberspace

By Shalini S.

The past week has seen news reports in the Indian media, proclaiming the rise of a new computer-related crime, “cyber extortion”. Cyber extortion is a term generally understood to refer to a category of cyber crimes, where stolen, sensitive and private data is withheld or threatened to be exposed in order to extort money. In such attacks, while cybercriminals threaten to cripple websites or disclose sensitive data, the data itself (stolen or accessed without authorization) is not tampered with and is usually safely returned on demands of the cyber extortionists being met. Simply put, hackers are forcing companies to pay them to desist from impeding commercial operations – a fee to be left alone.

In a shocking revelation, two Indian companies conceded to having paid hackers money to the tune of $10 million, to protect sensitive information stolen from their compromised computer networks, from imminent exposure. As the stolen information was incriminatory in nature, the attacks which seems to have originated in the Middle East, went unreported by the companies’ even months after payments had been made and no case has been filed by either company. Nevertheless, the discovery has prompted an unprecedented interest in understanding cyber extortion, its operation and treatment in India. In yet another instance of cyber extortion, a businessman from Hyderabad recently found himself unable to access his company’s database as it had been encrypted by a hacker demanding payment for decryption.

In the recently reported cases of digital extortion in India, criminals have exploited the vulnerabilities of cyber space to extort money, by predominantly employing the following strategies:

  1. Gaining unauthorized access to a company’s secured data, strategy and trade secrets and threatening to make it public if demands of payment aren’t met.
  2. Encrypting data in order to disable primary owner’s access to it and demanding payment for decryption.

According to a recently released threat report by Trend Micro, India also encountered the highest number of ransomware infections in the second quarter of 2015 and has ranked 6th in the list of countries sending maximum spam. Ransomware refers to malicious software implanted in communication devices to take control of them and hold data hostage (usually by encrypting it). Rightful owners are forced to pay “ransom” to cyber criminals in order to regain access to their devices after it has been has subject to such attacks. However, in light of allegations of private reports perverting statistics that represent current threat landscape, it is crucial to note that the above-mentioned threat report was published by a private security software firm that potentially stands to benefit from such a scare by creating increased demand for its security solutions.

Regardless, it is evident that in the perpetration of an extortion attempt, information systems are capable of being employed by cyber criminals in one or more of the ways as elucidated below[1]:

  1. Information system as the medium for perpetration of the threat.
  2. Information system as the object of the threat itself.
  3. Payment to the extorter being facilitated through information systems.
  4. Information and communication systems used as the medium for exposure, if demands remain unmet.

Noticeably, extortion manifests in several ways and thus, the provisions of the Information Technology Act under which victims of cyber extortion attacks may claim recompense under varies. However, as unauthorized access to data is characteristic of these attacks, S.43 and S.66 of the Information Technology Act, provisions dealing with protection of data and hacking, may be invoked to deal with cyber extortionists.

Further, in order to avoid exposure, cyber extortionists widely resort to the use of ransomware and botnets – network of compromised computers that are under the influence of malware code and unwittingly controlled by a master spam/virus originator usually engaged to forward transmissions.[2] Oft times, cyber extortion attacks are carried out by organized cyber criminals who hedge their collective technical abilities to extract crucial private data and information. Additionally, payments are demanded in bitcoins in order to further preserve anonymity. In the case of the two Indian conglomerates mentioned above, extortionist hackers even avoided being reported as the information they accessed (and threatened to expose) could implicate their victims in wrongdoing, naturally prompting a silent payoff. Hence, even criminals engaging in digital extortion from within India, are likely to escape prosecution under existing laws due to the complexity of ascertaining identity of the perpetrators. However, if they are identified, they may be prosecuted for the offences of extortion and criminal intimidation under S. 383 and S. 503 of the Indian Penal Code in addition to being charged with offences under the Information Technology Act.

The nature of operation of cyber extortion hasn’t yet been fully understood or captured by existing definitions. For instance, even a DDOS (extortion) attack may be used by extortionists to make websites unusable, in effect coercing them to pay.[3] Further, payment demanded may not always be monetary in nature or even capable of being materially quantified. Victims are also faced with disbelieving police when they try to lodge a formal complaint as not many enforcement authorities are aware of cyber extortion.

With an exponential rise in cyber extortion attacks globally having been reported and legal recourses proving inadequate, corporate entities and individuals must privately protect their data from intrusion by using advanced anti-virus tools, firewalls, updated operating systems and conduct regular cyber security audits to ascertain their vulnerability and assess their risk preparedness.

(We were unable to source Trend Micro’s threat report for Q2 of 2015 discussed above and request anyone with a copy to share the same with us in order to enable continued, meaningful engagement with cybersecurity issues).

(Shalini is a Research Fellow at the Centre)

[1] Gregory Bednarski, Enumerating and Reducing the Threat of Transnational Cyber Extortion against Small and Medium Size Organizations, Information Security Policy and Management (2004).

[2] Gu, G., Perdisci, R., Zhang, J., & Lee, W. (2008, July). BotMiner: Clustering Analysis of Network Traffic for Protocol-and Structure-Independent Botnet Detection. In USENIX Security Symposium (Vol. 5, No. 2, pp. 139-154).

[3] Mathieu Deflem & Brian Hudak, Internet Extortion and Information Security, in Organized Crime: From Trafficking to Terrorism (1 ed. 2008).

Original author: Sarvjeet Singh

Read More]]> (CCG NLU Delhi) Technology, Media & Telecommunications Wed, 30 Sep 2015 20:35:08 +0530
Supreme Court dismisses BCCI’s petition to review its 22 January judgment #IPL [Read Order]

bcci logoSupreme Court of India has dismissed the petition filed by the Board of Control for Cricket in India (BCCI) seeking a review of its judgment dated 22 January 2015.

The petition had sought a reconsideration of court’s verdict contending that court cannot interfere with the internal matters of BCCI and public policy can’t be imposed on BCCI which is a private body. [NDTV]

The bench of Justices TS Thakur and FM Ibrahim Kalifulla which had passed the 22 January judgment, dismissed the review petition holding:

We have examined the grounds urged in support of the prayer for review. We find no error apparent on the face of the record to warrant recall of our order dated 22nd January, 2015. The review petitions are, accordingly, dismissed.

22 January Judgment

On 22 January, Supreme Court had forbidden anyone who had commercial interests in individual IPL teams to contest BCCI elections holding that it would create an obvious conflict of interest. (Read: Legally explained: What, why and how the Supreme Court decided to fix BCCI)

Supreme Court had also held that no one with any commercial interests in BCCI events can contest BCCI elections and Srinivasan had to choose between the BCCI presidential post and owning the Chennai Super Kings.

Court had also held that BCCI as a body was amenable to the writ jurisdiction under Article 226 of the Constitution of India.

Read the order rejecting the review petition:

Mohit Singh

Mohit Singh

Mohit Singh is an advocate at the Supreme Court of India.

Mohit Singh

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Original author: Mohit Singh

Read More]]> (OneLawStreet) Litigation, arbitration & dispute resolution Tue, 29 Sep 2015 20:57:54 +0530
Challenge to Constitution Order 1954 in relation to Jammu & Kashmir before Supreme Court

const-JKA PIL has been filed before the Supreme Court of India challenging several special constitutional provisions in relation to the state of Jammu and Kashmir and is set to heard on Monday, 28 September by a bench comprising of Chief Justice HL Dattu and Justice Amitava Roy.

The petition filed by Bondana Purushottam Yadav prays the Court to quash:


Case No.Writ Petition (Civil) No. 489 of 2015 [PIL]
Case TitleBondana Purushottam Yadav v. Union of India & Ors.
  1. Union of India
  2. The Secretary, For the Parliamentary Affairs
  3. [Not known]
  4. The Secretary for the House of Council of States
  5. The Secretary for the President of India
  6. The Chief Secretary, State of Jammu and Kashmir
  7. [Not Known]
  8. The Secretary for the State Legislature Council, State of Jammu and Kashmir
  9. Sri Karan Singh, Member of Rajya Sabha

Issuance of a Writ of Certiorari for quashing the separate Constitution (application to the State of Jammu and Kashmir) Orders 1950 and Constitution (application to Jammu and Kashmir) Order 1954 i.e. C.O. 48-Appendix -I, the re-statement, with reference to the present text of the constitution of the exceptions and medications subject to which the constitution applies to the State of Jammu and Kashmir 1964 as mentioned under Appendix II in the Constitution of India,


Article 370 which grants a special status to the State of Jammu and Kashmir in comparison to other India states came into force on 26 January, 1950 along with the rest of the Constitution. On the same day, Constitution (Application To The State Of Jammu And Kashmir) Orders 1950 was issued by the then President of India, in consultation with the government of Jammu and Kashmir, in exercise of the powers conferred by Article 370.

In July 1952, Sheikh Abdullah signed Delhi Agreement with the Central government on Centre-State relationships, providing for autonomy of Jammu and Kashmir within India and of regions within Jammu and Kashmir. Subsequently on January 23, 1954, Bakshi Ghulam Mohammad, the then Prime Minister of the State of Jammu and Kashmir declared Jammu and Kashmir as a part of the Indian Union. In February, 1954 the Constituent Assembly of Jammu and Kashmir ratified the accession of the State of Jammu and Kashmir to India. The President of India, with the concurrence of the Government of the State of Jammu and Kashmir, issued the Constitution (Application To The State Of Jammu And Kashmir) Orders 1954. The 1954 Order which came into force on May 14, 1954 superseded the 1950 Order and implemented the Delhi Agreement as ratified by the Constituent Assembly of Jammu and Kashmir. The 1954 Order defines the constitutional position of the State of Jammu and Kashmir vis-à-vis Indian Union. [Read more here].

The 1950 and 1954 Orders form a part of the Constitution of India and Appendices to the Constitution.

Controversial Article 35A

The 1954 Order contains Article 35A provides:

35 A. Saving of laws with respect to permanent residents and their rights.— Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State: (a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or (b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects—

(i) employment under the State Government;
(ii) acquisition of immovable property in the State;
(iii) settlement in the State; or
(iv) right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part.

It is often alleged that Article 35A is in conflict with the Articles 14, 19 and 21 of the Constitution for creating a special class of citizens within a class of citizens of India.

PIL challenging Article 35A pending before Supreme Court

Earlier on 19 August 2104, a Supreme Court bench comprising of Justice (as he was then) HL Dattu and Justice SA Bobde had issued notice in a PIL filed by Delhi-based think tank We the Citizens which challenge the Constitutional validity of Article 35A.

Mohit Singh

Mohit Singh

Mohit Singh is an advocate at the Supreme Court of India.

Mohit Singh

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Original author: Mohit Singh

Read More]]> (OneLawStreet) Litigation, arbitration & dispute resolution Sun, 27 Sep 2015 19:00:53 +0530
Supreme Court to hear PIL challenging mandatory Aadhaar for Digital Locker on 28 Sept

digilocker1While the Aadhaar challenge petitions await their turn to be heard by a constitution bench, on Monday – 28 September, Supreme Court of India will hear a public interest litigation petition seeking a direction from the Court that Aadhaar card may not be made mandatory to avail the services of ‘Digital Locker’.

The PIL which was filed on July 3, 2015 by a Gurgaon resident – Sudhir Yadav contends that the government’s insistence of Aadhaar cards was in violation of the Supreme Court’s orders not to insist for Aadhaar as well as fundamental right to equality guaranteed under the Constitution. Before the matter could be heard, on August 11, the three-judge bench hearing the Aadhaar challenge has referred the matter to a constitution bench while asking the Union of India and other government bodies to use Aadhaar for limited purposes. Earlier on September 23, 2013, March 24, 2014 and March 16 2015, Supreme Court had passed orders not to make Aadhar mandatory for availing government benefits.

On August 11, Court had inter alia ordered:

The production of an Aadhaar card will not be condition for obtaining any benefits otherwise due to a citizen;

The Unique Identification Number or the Aadhaar card will not be used by the respondents for any purpose other than the PDS Scheme and in particular for the purpose of distribution of foodgrains, etc. and cooking fuel, such as kerosene. The Aadhaar card may also be used for the purpose of the LPG Distribution Scheme;

Case No.Writ Petition (C) No. 492 of 2015 [PIL]
Case TitleSudhir v. Union of India
  • Chief Justice of India HL Dattu
  • Justice Amitava Roy
Prayer“Issue a writ in the nature of mandamus directing the Respondent not to insist for AADHAAR CARD to get the benefit of Digital Locker”.

As a part of the Digital India campaign, Prime Minister Narendra Modi on July 1, 2015 had launched the digital locker facility named as Digilocker, which aims at helping citizens to digitally store their important documents, such as PAN card, passport, mark sheets and degree certificates. As per the data available on its website, as of now there are 9,70,490 users of Digilocker who have stored over 8,78,077 documents on their lockers. The DigiLocker service is provided by the Department of Electronics and Information Technology, under the Ministry of Communications & IT.

Aadhaar a pre-requisite to apply

Possession of a valid Aadhaar card is a pre-requisite to sign up for a DigiLocker. The official website says:

How can I get a DigiLocker account?

To sign up for DigiLocker, you need your Aadhaar number (issued by UIDAI). There are two ways to sign up:

1. Mobile OTP: Use this method if your Aadhaar number is linked to your mobile number.
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Mohit Singh

Mohit Singh

Mohit Singh is an advocate at the Supreme Court of India.

Mohit Singh

Latest posts by Mohit Singh (see all)

Original author: Mohit Singh

Read More]]> (OneLawStreet) Litigation, arbitration & dispute resolution Sat, 26 Sep 2015 20:21:51 +0530
Notes from a Foreign Field: The New Zealand High Court Issues Its First “Declaration of Incompatibility”

(We are starting a new series called ‘Notes from a Foreign Field’, focusing on decisions of other constitutional courts, and constitutional controversies in other jurisdictions, written by specialists from those jurisdictions. In the opening post, Max Harris, a New Zealand lawyer and presently Prize Fellow at All Souls College, Oxford, writes about a recent, important decision of the New Zealand High Court, which broke new ground in the area of judicial review)

On 24 July 2015, Justice Heath of the New Zealand High Court issued a landmark human rights decision, Taylor v Attorney-General [2015] NZHC 1706. The case is worth reviewing for readers outside of New Zealand. it provides an overview of the human rights landscape of a jurisdiction that is often overlooked, presents a further perspective for global debates on prisoner voting, and is an example of robust judicial reasoning in a constitutional context.

The Taylor case arose out of New Zealand’s Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010, which imposed a blanket ban on prisoners voting in New Zealand elections. The position prior to 2010 had been that prisoners serving a prison term longer than three years were banned from voting. Arthur Taylor, a prisoner, challenged the 2010 Act. He argued that it posed an unreasonable limit on his right to vote, under s 12 of the New Zealand Bill of Rights Act 1990.

The New Zealand Bill of Rights Act 1990 is an early example of a statutory bill of rights. The original draft Bill of Rights empowered judges to strike down legislation, but after public opposition to this, the Act reached a compromise solution. It lists a standard set of rights and freedoms, indicates that rights are subject only to “reasonable limits” that can be “prescribed by law” and “demonstrably justified in a free and democratic society” (s 5), but makes clear that legislation cannot be struck down where limits on rights are found to be unreasonable (s 4). The Act allows the Attorney-General to flag up violations of rights at the legislative drafting stage (s 7), and also notes that “[w]herever” legislation “can be given a meaning” consistent with rights, “that meaning shall be preferred to any other meaning” (s 6).

The Act was a model for the UK’s Human Rights Act 1998. However, unlike the Human Rights Act, the New Zealand Bill of Rights Act 1990 does not spell out the remedies available for litigants in the event that a court finds that legislation unreasonably limits rights. In Simpson v Attorney-General [1994] 3 NZLR 667 (Baigent’s case), the New Zealand Court of Appeal found that damages should be available for violations of the New Zealand Bill of Rights Act. What remained in doubt was whether New Zealand courts could issue a declaration of inconsistency or incompatibility (of the kind explicitly allowed by s 4 of the Human Rights Act 1998 in the UK), where an Act imposes an unreasonable limit on rights. That was the key issue in the Taylor case, because Arthur Taylor asked the High Court to issue a declaration of inconsistency with respect to New Zealand’s prisoner disenfranchisement legislation.

Let us consider the judgment. Justice Heath points to the fact that interestingly, the Crown had conceded that there was inconsistency between the legislation and the right to vote, and agrees with the Attorney-General’s preliminary opinion that there was an inconsistency. He adds one further reason why the legislation is an unreasonable limit on the right to vote: it arbitrarily focuses on imprisonment, rather than conviction, thereby allowing a person who is sentenced to home detention to retain a right to vote, though that person may be as equally culpable as another person sentenced to imprisonment.

So far, so uncontroversial. The real question in the case, however, was that given the acknowledged inconsistency, whether the Court has jurisdiction to grant a declaration of inconsistency, in light of the New Zealand Bill of Rights Act 1990 and relevant policy concerns.

The first argument made by Crown lawyers was that a declaration could not be issued in a case where there is no dispute over interpretation of legislation. It was said that the main remedy provided by the New Zealand Bill of Rights Act is an interpretive one: courts can try to interpret away a possible inconsistency with rights, but cannot issue a declaration saying that legislation is inconsistent with rights. Justice Heath considers this argument and rejects it. He accepts that there are some restrictions on when a declaration can be granted. The New Zealand District Court is a creature of statute and cannot grant any declarations (let alone a declaration of inconsistency), and declaratory relief should not be available in a criminal trial, because a declaration represents civil relief that would be inappropriate in a criminal context. (He cites a Court of Appeal decision that notes the inappropriateness of using civil remedies in a criminal context.) But he suggests that these should be the only restrictions placed, in principle, on the issuing of declarations of inconsistency.

Justice Heath points out that earlier courts had said that judges can, and indeed sometimes must, indicate an inconsistency between legislation and the New Zealand Bill of Rights Act. He says further that to allow a declaration of inconsistency would not contradict s 4 of the New Zealand Bill of Rights Act 1990 – the provision preventing judges from striking down legislation on Bill of Rights grounds. Acknowledging the room for “judicial choice”, Heath J reviews earlier case law where remedies (including damages) for Bill of Rights breaches have been developed. He extracts a general principle that “where there has been a breach of the Bill of Rights there is a need for a Court to fashion public law remedies to respond to the wrong inherent in any breach of a fundamental right”. He concludes that Parliament did not intend to exclude the ability of a court to make a declaration of inconsistency.

Justice Heath feels fortified in this conclusion by the fact that a legislative amendment in 2001 allowed declarations of inconsistency in discrimination cases (heard by the Human Rights Review Tribunal in New Zealand). Through this legislative act, Justice Heath says, “Parliament has signaled that it sees no particular objection to that particular remedy being granted”. It would be odd for Parliament to confer this power on a lower tribunal, notes Justice Heath, and to empower higher courts to review use of this power on appeal, but to remove the right of higher courts to issue declarations of inconsistency. Whether a declaration of inconsistency breaches art 9 of the 1688 Bill of Rights (which protects parliamentary privilege and remains part of New Zealand law) or principles of comity between the legislature and the courts are matters that only affect whether a declaration should be issued in a particular case, according to Heath J, not matters that go to the general jurisdiction of a court to issue a declaration.

Addressing whether a declaration of inconsistency is appropriate in the Taylor case, Heath J considers arguments based in the Bill of Rights 1688 and comity. Heath J states that if courts are able to give reasons why legislation imposes unreasonable limits on rights under s 5 of the New Zealand Bill of Rights Act, it is hard to see how a declaration would create any greater intrusion on parliamentary privilege or comity. This is a kind of boot-strapping argument: if s 5 of the New Zealand Bill of Rights Act is constitutionally legitimate (a proposition Heath J assumes), then a declaration of inconsistency must be similarly legitimate.

Courts should not hold back from issuing declarations out of fear that they might be ignored, says Heath J. The New Zealand judicial oath requires decision-making “without fear or favour”. And the Court is, after all, not seeking to persuade – it is merely stating the law (echoing Justice Marshall’s statement from the US Supreme Court decision in Marbury v Madison (1803) 5 US 137). Heath J disagrees with the comments of an earlier judge in an interlocutory decision in the Taylor case that a court might hesitate to issue a declaration where the Attorney-General has already flagged up a Bill of Rights inconsistency in a s 7 report to Parliament. There is no reason why a court “should not reinforce the Attorney’s report”, notes Heath J. He adds that a court should also be able to disagree with an Attorney-General’s report.

Should the absence of a live controversy between parties prevent a declaration? Heath J points out that there is no limit of this kind for ordinary declarations under the Declaratory Judgments Act 1908 (though he doubts whether a declaration of inconsistency could be granted under that Act). Points of “constitutional importance” should be ventilated, says Heath J: “[t]he importance of the right and the nature of the inconsistency are sufficiently fundamental to demand a remedy”.

In this case, Heath J confirms that a declaration of inconsistency will be granted. The case concerns a central aspect of democracy, the right to vote: “if a declaration were not made in this case, it is difficult to conceive of one in which it would”. Heath J notes that “a formal declaration” is more appropriate than “an observation buried in [a court’s] reasons for judgment”. There is no violation of Art 9 of the Bill of Rights 1688 or principles of comity; the comment is on “the consequences of a legislative act”, not the internal workings of Parliament itself. The functions of the Attorney-General’s pre-legislative report and the court are different; the Attorney-General is considering an apparent inconsistency, a court is considering an actual inconsistency. A court’s ruling will also be more accessible. Finally, Heath J says, Parliament’s earlier legislative recognition of declarations in discrimination cases shows a certain amount of approval for the notion of declarations of inconsistency. Heath J notes in passing that there are “powerful arguments” that the earlier limitation on prisoner voting (allowing the vote only for prisoners serving fewer than three years in prison) could be Bill of Rights-compliant. He concludes with the declaration itself, in the following terms:

Section 80(1)(d) of the Electoral Act 1993 (as amended by the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010) is inconsistent with the right to vote affirmed and guaranteed in s 12(a) of the New Zealand Bill of Rights Act 1990, and cannot be justified under s 5 of that Act.

This is the first case in New Zealand in which a judge has issued a declaration of inconsistency. (In an earlier Court of Appeal case, R v Poumako [2000] 2 NZLR 695 (CA), one judge, Thomas J, issued a declaration of inconsistency, and reviewed the arguments for declarations in some detail. But he was the sole dissenting judge in this case.) The declaration has not resulted in any legislative reconsideration of the prisoner voting ban, however. It seems that no law change will be forthcoming. The Crown has not appealed the ruling.

What more general points, then, can be drawn from this detailed review of Heath J’s reasoning in Taylor v Attorney-General?

First, there are parts of the judgment at which criticism might be directed. Given Heath J’s emphasis on how distinct the Attorney-General’s s 7 report is from a court’s later review of legislation, it is surprising that he does not undertake a fresh proportionality assessment of the prisoner voting legislation in this case. Perhaps Heath J felt that in a controversial case like this one, and as the first judge ever to issue a declaration of inconsistency, it would be safer simply to affirm the Attorney-General’s earlier reasoning. However, it would have been helpful for Heath J to offer further reasoning on this point, especially since prisoner voting bans have been contentious in other jurisdictions, including the United Kingdom, South Africa, and Canada. (An earlier interlocutory decision of Brown J did refer to some of these other cases.) As well, Heath J is a little peremptory in some conclusions. He is quick to accept that declarations of inconsistency should not be issued in criminal trials, when there is no legislative reference to this carve-out. And he is not entirely convincing in his claim that declarations of inconsistency do not undermine Art 9 of the Bill of Rights. Heath J might also have made some broader comments about the proper approach to the separation of powers and dialogue under the New Zealand Bill of Rights Act. Perhaps, however, these are points that might be expected in the judgment of an appellate court. Overall, Heath J’s judgment is admirably careful, considered, and courageous.

Secondly, the effect of the judgment – even if it is not momentous, and only slightly shifts the pre-existing position – is to recalibrate subtly the relationship between the courts and Parliament in New Zealand. New Zealand is a jurisdiction where judges have restricted powers. There is no single codified constitution in New Zealand, just as there is no single codified constitution in the United Kingdom. The generally accepted position is that judges cannot strike down legislation, and parliamentary sovereignty is often invoked. Judges (with some notable exceptions) tend to be deferential towards the executive and the legislature. Against that backdrop, this judgment gives judges slightly greater powers in human rights cases and should cause Parliament to hesitate a little more when passing legislation that might violate human rights. Whether, of course, Parliament actually shows more respect for human rights as a result of this judgment is an empirical question. The early signs are not especially promising: New Zealand Justice Minister Amy Adams, after the judgment was released, said that she was considering the judgment, but there seems to have been no further comment from the Minister since July of this year. Opposition Labour and Green Parties did use the judgment to call for the prisoner voting legislation to be repealed, and this highlights a further benefit of declarations of inconsistency: even if they do not lead to direct political change, they can provide tools for citizens, campaigning groups, and other politicians to criticise legislation.

In the earthquake-prone islands of New Zealand in the South Pacific, this judgment may not have shifted the tectonic plates of constitutional law – but at the very least, Taylor has jolted the constitutional landscape. The case is a significant milestone in the development of the jurisprudence of the New Zealand Bill of Rights Act 1990, and an important reminder of the valuable role that courts can play in clarifying matters of principle – and upholding human rights.

Original author: gautambhatia1988

Read More]]> (Gautam.Bhatia) Constitutional Law Sat, 26 Sep 2015 12:42:29 +0530
An essential request to the SC on criminal defamation: What would happen if it's struck down?



Supreme Court advocate KV Dhananjay argues that if the Supreme Court would strike down criminal defamation as unconstitutional on the ground that it is an unreasonable restraint on freedom of speech, it must also specify on what will happen to all pending criminal defamation cases. Should the complainant therein be able to institute a civil defamation even if the period of limitation to do so has run out in certain cases?

For ease of reading, this article is shown in the format of answers to questions posed by his colleagues at the Bar.

So, will the Supreme Court strike down criminal defamation?

Someday, yes. But, whether it will be this time or some other day in the future, I do not know and nobody knows.

The argument against criminal defamation runs like this, I think, that defamation is no doubt, an exception to the guarantee of free speech. The Constitution of India itself says so. But then, all these exceptions must be reasonable and the law of defamation too must pass the test of reasonableness and the criminal defamation law cannot pass such a test and so, should be struck down.


Implied therein is that the law of civil defamation is a reasonable restraint?

Yes, impliedly. I think that the Supreme Court is expected to say that much if it would strike down criminal defamation – it will have to contrast the law of criminal defamation with that of the law on civil defamation and conclude that one is reasonable while the other one is not.


So if the Supreme Court were to strike down criminal defamation, would it not be a simple thing for the magistrates or the High Courts to close those cases?

Simple? Take the case of Section 66-A of the Information Technology Act, 2000. The Supreme Court struck down that provision in its entirety on the ground of it being unconstitutional.

Do you want to know how many courts below are still prosecuting under that provision in cases where the prosecution was initiated prior to the Supreme Court’s judgment?



Yes. I have personally heard about any number of cases and I myself can readily speak about a case I have come across – a person was charged under Section 66-A of the IT Act and the Magistrate had taken cognizance of it last year; the accused then approached the High Court.

After the High Court was informed of the Supreme Court judgment, the High Court judge was not too sure of what to do. He declared in his judgment that because the Supreme Court had struck down Section 66-A of the IT Act, prosecution could not be taken in its name and simply pushed the matter back to the Magistrate - without even being sure enough of the constitutional law and did not even strike down the prosecution under Section 66-A.

The Magistrate is now hearing the challenge and is being taken through various textbooks on the Constitution. It is that bad in a large number of cases.



It truly is. Let me assume hereinafter that the Supreme Court would strike down criminal defamation as being unconstitutional.

I am afraid that if the Supreme Court would not offer further guidance, there could be a great deal of confusion in the courts below in regard to all the pending cases or appeals and running convictions, if any.


What is a ‘running conviction’?

A conviction of imprisonment that is running its course at the relevant time.


Could the Supreme Court say that its judgment invalidating criminal defamation will only have effect from a future date and not affect past transactions? Of course, if it would say so, most of the petitioners at the Supreme Court themselves would recover nothing!

You see, that is why, this whole aspect of the matter deserves a great deal of consideration from the Supreme Court.

Post judgment ramifications are of a substantial nature in this case and leaving it unsaid can create great confusion and undermine the very usefulness of the judgment to a large number of people.

Say, the cause of action for initiating a defamation complaint or suit happened on day 1. Say, within a period of 1 year, the aggrieved person had filed a criminal complaint before a Magistrate complaining about defamation. Now, if that complaint is going to be struck down by the Supreme Court, he should be afforded an opportunity to opt for a civil defamation.


But why should the Supreme Court say any such thing?

There is a period of limitation to institute a civil or criminal defamation; for civil defamation, it is 1 year from the date of the event and for criminal defamation, it is a period of 3 years from the date of the event.

There is no bar in law for a person to choose both civil and criminal defamation at the same time, though one of it would generally remain stayed so as to let the other continue.


So, if a person had merely instituted criminal defamation and that is now quashed, you are saying that he should be allowed to pursue civil defamation. But, why is the Supreme Court required to say so? Cannot he simply file a civil suit on his own?

Difficult or nearly impossible otherwise.

Say, the defamatory event happened on 1-Jan-2014. The period of limitation to file a civil suit runs out on 31-Dec-2014. If the aggrieved had initiated criminal defamation on 01-Aug-2014 and that action is now struck down by the Supreme Court, he would not be able to pursue civil defamation now as we are in September, 2015 and the period of limitation to initiate a civil defamation has already run out for him.

The Limitation Act, 1963 does not afford help to the aggrieved in such circumstances and confusion may take hold when different courts are asked to deal with such cases. At the same time, if the aggrieved in this example had filed a criminal defamation only in February, 2015, he would have, at the very time of filing of his criminal defamation, run out of limitation for filing a civil defamation and quashing of his criminal complaint now should not give him any fresh cause of action to file a civil defamation.


Some would say that these things should be dealt with by the Supreme Court as and when concrete cases emerge before them..

Those ‘some’ would be terribly wrong. It is not difficult for the Supreme Court to foresee that confusion will take hold in the courts below if it would say nothing at all on what is to happen to pending cases. So, what is this conservatism about wanting to deal with cases only after confusion takes hold and not wanting to prevent the arising of such confusion in the first place? A superior court of justice is expected to foresee the immediate consequence of its judgment and to provide for a remedy in its judgment.


Well then, one might want the Supreme Court to also say in such cases that the complaint in the criminal court should itself be transferred to the Civil court..

Not possible in law. Civil and criminal defamation are two distinct things.

The law of civil defamation in India is not a statute law. That is, there is no statute or legislation in this country to specially deal with the tort of defamation.

As such, the law of civil defamation in India is founded upon the common law which in turn is based on the common law of England.

However, the English common law of defamation has been subject to certain modifications by courts in India to reflect the notion of justice, equity and good conscience in our circumstances and jurisprudence. Criminal defamation, on the other hand, is a penal law and therefore, statute law. It is contained in Sections 499 to 503 of the Indian Penal Code, 1860.


So what? That is why, we have Article 142 of the Constitution – to let the Supreme Court do complete justice..

Complete justice? What has the notion of ‘complete justice’ got to do with the power of the Supreme Court to convert a criminal proceeding into a civil suit?

Such a power is non-existent in it as a matter of law and, no court needs to possess such a power as it is not quite a judicial power at all but is the power of a despot.


What really is the prime difference between criminal defamation and a civil defamation that would come in the way of converting one into another?

Everything. In a case of criminal defamation, there should be proof beyond reasonable doubt whereas in a civil defamation, it is not so - we rest on what we call as ‘preponderance of probabilities’.


In lay man’s terms..

For example – say A is charged with the offence of murdering B. Say, all that the prosecution brings to the court is A’s confession to the police. Now, such a confession is inadmissible as evidence and the judge should exclude it. Then, left without any other evidence, he acquits A. Thereafter, the deceased’s wife brings a civil suit for compensation against A.

A’s confession to the police is admissible in that civil case. In fact, the famed OJ Simpson was acquitted of a charge of murder by a criminal court but was slapped with huge punitive damages in a civil trial that concluded that he was responsible for the very deaths that a criminal court would not convict him for.

You will even find a case wherein a man was acquitted of a charge of murder in a criminal trial but was depicted as a murderer in a book that was published afterwards and he could not stop the publication of that book in a civil trial because the writer was not required to establish ‘guilt beyond reasonable doubt’ but was only required to show on a ‘preponderance of probabilities’ that the accused did commit that murder by relying on the same evidence that a jury did not think had established his guilt ‘beyond reasonable doubt’.


What other differences between a criminal defamation and civil defamation are relevant in this context?

To begin with, ‘truth is a complete defence to a case of civil defamation’ whereas truth is not a defence by itself in a criminal defamation unless the court is also satisfied that it was uttered in or contributed to public interest.

That is, I think, the strongest ground of attack in these cases. Then, there is punitive damages one can seek in a case of civil trial but the plaintiff should have expressly sought for it in his pleading.


There is no concept of ‘monetary compensation’ in criminal defamation cases..

Also, sometimes, a plaintiff could recover what is called as ‘special damages’ if he could show to the civil court that he has sustained pecuniary loss in his business by reason of the defamatory utterances. Again, he is required to specifically plead to that effect in his evidence and then alone, he would be entitled to recover it.

There is no such thing in criminal defamation cases.

And, criminal defamation rests on numerous exceptions and some of those exceptions apply differently to civil cases - the defence of absolute privilege is available in civil cases whereas only a defence of qualified privilege is available in criminal cases.

In a criminal proceeding, should the accused die before a judgment, the proceeding naturally terminates whereas in a civil case, if the deceased’s responsibility was already determined by the court by then, his estate could be straddled with damages.


Intention to defame and injure the reputation equally matters in both types of cases. Right?

No. In fact, this is an area in which we find the greatest amount of ignorance and confusion in this country. Intention to defame is irrelevant in a civil context but is however, the basic requirement in a criminal case.

To repeat, ‘intention to defame’ is simply irrelevant in a civil context. The problem is – in 8 or 9 out of 10 civil defamation cases in our country, an issue for trial is invariably ‘whether the plaintiff proves that the defendant intentionally uttered the statements in question with a view to injure the reputation of the plaintiff’.

Such an issue has no relevance to deciding compensatory damages at all. It has only a limited role in deciding upon punitive damages but a court may find in the negative on this issue and still come across plenty of other reasons to award punitive damages against the defendant.


So, to conclude, the Supreme Court ought to specify...

what would happen to pending cases of criminal defamation and if a criminal complaint was filed within a year of the cause of action and if that complaint be struck down by the court now, whether the complainant therein should be allowed to pursue a civil defamation.


But, tell us, should not the judgment of the Supreme Court apply only to those actions that would be brought after the date of the judgment?

Take Article 13(1) of the Constitution, which says that no law shall be made that would contravene any fundamental right and any law so made shall be declared to be void.



Obviously, any such judgment should only take effect from the date of its declaration..

But it is not so. The declaration could have even come earlier had only the court acted swiftly or some other person filed years earlier and so on and so forth.

Essentially, the declaration should relate not to the date when the court recognizes that the law in question offends the fundamental right but to that date on which the law in question held the quality of being in contravention of the fundamental right.

It is this principle that you generally come across in most jurisdictions of the world. There is no reason to depart from it in this country.


But, there is this doctrine of prospective overruling.

That is, if the court had earlier ruled upon the same subject and said one thing but now wants to say another thing, those who had relied upon the court’s earlier judgment ought to be protected and hence, this doctrine of prospective overruling was evolved.

It says that this later judgment that upsets the previously declared law will only apply prospectively. I am not aware of any judgment of the Supreme Court upholding the law of criminal defamation and I don’t see, for that reason, the doctrine of prospective overruling holding any relevance here.

Photo credit to NewTown Graffiti (Flickr / CC BY)

Read More]]> (KV Dhananjay) Constitutional Law Fri, 25 Sep 2015 14:01:50 +0530
Government finally decides to end 'tax terrorism', retrospectively amends Section 115JB of Income Tax Act from 2001

tax-evasion-226717_640In a big relief to foreign companies, Government of India has decided to bring a bill into the Parliament to amend the Income-Tax Act 1961 w.e.f. 1 April 2001 to the effect that the provisions of Section 115JB of the Act shall not be applicable to a foreign company if the foreign company is a resident of a country having DTAA with India and if such foreign company does not have a permanent establishment within the definition of the term in the relevant DTAA.

The Government of India had been considering the issues relating to taxation of foreign companies, having no permanent establishment in India. In this regard, the Government has already clarified the inapplicability of MAT provisions to FIIs/FPIs.

The proposed amendment shall come as a relief to foreign companies having no place of business/permanent establishment in India.

The amended section may provide that the provisions of Section 115JB shall not be applicable to a foreign company if:

  • the foreign company is a resident of a country having DTAA with India and such foreign company does not have a permanent establishment within the definition of the term in the relevant DTAA, or
  • the foreign company is a resident of a country which does not have a DTAA with India and such foreign company is not required to seek registration under Section 592 of the Companies Act 1956 or Section 380 of the Companies Act 2013.

The Finance Act, 2000, inserted section 115JB into the Income-tax Act, 1961, with effect from April 1, 2011 applicable from the assessment year 2001-02 provides for levy of Minimum Alternate Tax on companies. Section 115JB differs from erstwhile section 115JA, which provided for MAT on companies, so far as they did not deem any part or the whole of book profit as total income. However after the amendment, section 115JB provided that if tax payable on total income is less than 7.5% of book profit, the tax payable under this provision shall be 7.5% of book profit.

Mohit Singh

Mohit Singh

Mohit Singh is an advocate at the Supreme Court of India.

Mohit Singh

Latest posts by Mohit Singh (see all)

Original author: Mohit Singh

Read More]]> (OneLawStreet) Litigation, arbitration & dispute resolution Fri, 25 Sep 2015 12:34:21 +0530
Cannot cross ‘lakshman rekha’ to stop parliament disruptions: Supreme Court

Parliament_of_IndiaSupreme Court of India has dismissed a public interest litigation petition which sought framing of guidelines to ensure uninterrupted functioning of Parliament observing that intervention in the parliamentary affairs would be an overstep and amount to crossing the ‘lakshman rekha’.

A bench comprising of Chief Justice of India HL Dattu and Justice Amitava Roy was hearing a matter filed by NGO Foundation for Restoration of National Values (FRNV) which submitted before the Court that “the life blood of parliamentary democracy in this country has been facing severe disruptions in its functioning from the representatives of the people, thereby gravely affecting the public and national interest, sullying the name and reputation of this august institution, and resulting in crores of public money being wasted.”

Case No.Writ Petition (C) No. of 2015 [PIL]
Case TitleFoundation For Restoration Of National Values v. Union Of India & Ors
  • Chief Justice HL Dattu
  • Justice Amitava Roy

download-orderCJI Dattu observed:

We cannot monitor Parliament. The Speaker of the House knows how to manage the function of the House. We should know our ‘lakshman rekha’. We should never cross the ‘lakshman rekha’. We should not be overstepping our boundary to say Parliament be conducted in this manner and not in that manner. No, we cannot say. [PTI]

Petition had claimed that in the absence of a law, there is total vacuum to deal with the issue of non-functioning of Parliament and hence it would be proper for the Court to frame guidelines. Along with the Union of India, Ministry of Parliamentary Affairs and the secretariats of the two Houses were made parties to the PIL.

Citing a study of PRS Legislative Research, petition had further claimed:

The working of the 15th Lok Sabha was disrupted frequently, making the productivity of the 15th Lok Sabha the worst in the last 50 years. Disruptions during the term of the 15th Lok Sabha resulted in the Lok Sabha working for 61% and the Rajya Sabha for 66% of its scheduled time…

Request Parliament, you elected them

Declining to entertain the petition, CJI Dattu suggested the petitioner to make representations before the Parliamentarians itself as they are “experienced and had wisdom. They are elected representatives. They know their responsibilities and surely they know how to conduct themselves”.
Mohit Singh

Mohit Singh

Mohit Singh is an advocate at the Supreme Court of India.

Mohit Singh

Latest posts by Mohit Singh (see all)

Original author: Mohit Singh

Read More]]> (OneLawStreet) Litigation, arbitration & dispute resolution Thu, 24 Sep 2015 21:21:15 +0530
The National Draft Encryption Policy 1.0

The National Draft Encryption Policy which was released for public comment, and subsequently withdrawn by the Union Government within a span of three days after its release, has been a subject of much discourse. The clarification issued by the Ministry on 22nd early in the day, stated that mass products will be exempt from purview of the policy, and these products would include those currently in use amongst social media, facebook, payment gateways and e-commerce. Medianama issued a detailed report indicating that the clarification only led to more questions.

The conflicting interest of law enforcement agencies in lieu of national security vis a vis privacy concerns, necessitates a balancing act in terms of encryption policy. The UN Special Rapporteur David Kaye’s recent report on freedom of speech and expression emphasizes on the need for digital anonymity and the importance of encryption for protecting the right to privacy and integrity of information. We do not have a centralized legal framework for encryption systems and there is a dearth of cyber research to that end. The draft Policy released by the Union recently is a far cry from resolving it. The withdrawal of the policy at this stage indicates the need for a fundamental modification in the approach to tackling encryption related issues.

Dissecting the Debatable Clauses of the Demised Policy:

With the Union Minister of the Information Technology stating that the view reflected in the policy is not the final one, further assessment of the policy has been effectively stalled.

The policy intends to extend its applicability to sensitive departments/agencies of the government designated for performing sensitive and strategic roles. This policy is applicable to all Central and State Government Departments (including sensitive Departments/Agencies while performing nonstrategic & non-operational role), all statutory organizations, executive bodies, business and commercial establishments, including public sector undertakings and academic institutions and all citizens (including Personnel of Government/Business performing non-official/personal functions).

The policy while enlisting the strategies employable during communications between business and business groups, and business and citizen groups, prescribes a standardized mode of encryption keys and protocols to be followed which is to be notified by the government from time to time. This is not viable since different entities might in all likelihood have a different standard of privacy and ensuring security. The Organization for Economic Co-operation and Development (`OECD’) issued guidelines on Control of Encryption in March 1997 and principle 2 states that: users should have a right to choose any cryptographic method, subject to applicable law.

The fatalistic inclusion of the ‘90 days in plain text’ clause which makes the communication between any two groups presentable in a readable format has invited an endless criticism of the policy and the clarification issued by the government subsequently only made things more obscure.

The requirement of foreign companies or entities to first register with the government and to enter into an agreement (drafted by an agency prescribed by the government) with the government has not been well received globally.

Section 69 of the Information Technology Act empowered the government to monitor and decrypt communications in the interest of the sovereignty of the state, national security, integrity. The section was equipped with procedural safeguards. The amendment of 2008 to the IT Act introduced section 84A which provides the basis for the formulation of the draft policy. The section empowers the government to prescribe modes of encryption if it deems fit. Not delving into the nature of section 84A and the question it invites of a possible excessive delegation, it is pertinent to note that the standardization and a vertical mode of prescribing encryptions in communications defeats the principal basis behind the need for encryption: protecting privacy and ensuring the unique integrity and security of the communication.

While the policy has been called foul on many counts, the provision for symmetric encryption to the size of 256 bits is a welcome one. The next draft proposal is anxiously awaited and will hopefully not be a patchwork of the same policy.

(Joshita is a Research Fellow at the Centre)

Original author: Joshita Pai

Read More]]> (CCG NLU Delhi) Technology, Media & Telecommunications Thu, 24 Sep 2015 12:39:45 +0530
Seat of Arbitration: What proposed amendments post-Balco will do INTRODUCTION

In case of an International Commercial Arbitration, at more than a few times, question arises as to what is the law governing the substance of  dispute between the parties, the law governing arbitration which includes construction and validity of the Arbitration agreement and the procedure of Arbitration ?


The law of a particular country or some other considerations agreed between the parties may govern the rights and obligations arising out of the contract between the parties. If a local law is selected, it is referred to as the governing or proper law of contract. The proper law is determined in accordance with the general principles of the conflict of laws, namely the law chosen by the parties, or in the absence of such choice, the law of the country with which the agreement is most closely connected as inferred from the intention of the parties to the contract depending upon surrounding factors.


The law governing the Arbitration has importance because it determines the validity, effect and interpretation of the Arbitration agreement and such law is relied upon by the arbitrator to determine the scope of his powers and the procedure to be followed by the arbitral tribunal (unless the parties expressly agree to submit themselves to an institutional arbitration like SIAC etc and follow the procedure prescribed by such institution which is different from the law governing the arbitration and procedural law of arbitration).

Concept of Seat of Arbitration and its Significance

The Seat of Arbitration determines the applicable law governing the Arbitration including the procedural aspects. When the parties specify an applicable law for the Arbitration agreement, that law governs the Arbitration agreement including the procedural aspects of Arbitration. However, if the parties have not specifically chosen the law governing the conduct and procedure of Arbitration, expressly or by necessary implication, the conduct of the Arbitration will be determined by the law of the place of the Seat of Arbitration. The regulation of conduct of Arbitration and challenge to an award would have to be done by the courts of the country in which the Seat of Arbitration is located as such Court would be the supervisory court possessed with the power to annul the award.

The Supreme Court in its decision given in the case of Bharat Aluminium Company Ltd v. Kaiser Aluminium Technical Service Inc ("Balco")1 held that the choice of another country as the Seat of Arbitration inevitably imports an acceptance that the law of that country relating to the conduct and supervision of Arbitrations will apply to the proceedings.

If the Arbitration agreement is found or held to provide for a Seat / place of Arbitration outside India, then even if the contract specifies that the Indian Arbitration Act shall govern the arbitration proceedings, Indian courts cannot exercise supervisory jurisdiction over the Arbitration or the award.

However, in the new proposed amendments to the Arbitration and Conciliation Act, 1996 ("Act"), the Law Commission Report ("Report")2 has recommended that Part I of the Act, such as Section 9 (interim relief), Section 27 (court assistance for evidence), Section 37(1)(a) (appeal able orders), will remain available to parties in a foreign Seated Arbitration which now has been accepted by the Union Cabinet. Further, in one of the other amendments suggested in the Report, the definition of Seat would be inserted to mean the juridical Seat of the Arbitration.


The Seat of Arbitration may well be quite independent of the place or the venue where the hearings or other parts of the arbitral process occur or take place. The Seat of Arbitration it is of vital importance, for it is the courts of the Seat that have the supervisory jurisdiction over the arbitral process. Identification of the Seat of Arbitration post Balco has become one of the most important features of an arbitration clause. The selection of the Seat determines the law governing the Arbitration procedure and often, more importantly, the process and rights relating to enforcement of the arbitration award.

It is not necessary for the Seat of Arbitration and the venue of the Arbitration to be the same. Location and even when hearings take place during the course of the Arbitration in several different countries, the chosen Seat of Arbitration will remain unaffected independent of the geographical place where the hearings take place.

In the  case of Enercon (India) Ltd and Ors v Enercon Gmbh3 and Anr before the Hon’ble Supreme Court of India a dispute arose for non-delivery of supplies under an Intellectual Property License Agreement (“IPLA”) containing an arbitration clause. The relevant aspects of the arbitration clause in dispute were as under:

          The governing law of the IPLA was Indian law; the venue of the arbitration was London; and the provisions of the Indian Arbitration and Conciliation Act, 1996 were to apply.

There was a sequence of proceedings initiated both in India and in England seeking declarations on the validity of the arbitration clause and asking for anti-suit injunctions. When the matter was before the Hon’ble Bombay High Court it had concluded that though London was not the Seat of Arbitration, the English Courts would have concurrent jurisdiction since, venue of arbitration was London. The matter then went before the Hon’ble Supreme Court where the main issue was that assuming that the Seat of Arbitration was India, whether the English Courts would have concurrent jurisdiction as the venue of arbitration is in London?

The Hon’ble Supreme Court of India held that "the express mention in the arbitration clause that London was the venue of the arbitration could not lead to the inference that London was to be the Seat because although London was termed as the venue, the law governing the substantive contract, the law governing the arbitration agreement and the law governing the conduct of the arbitration were chosen to be Indian law and the closest and most real connection was with India. Once the Seat was in India, Indian Courts would have exclusive supervisory jurisdiction and English Courts cannot have concurrent jurisdiction".

Two Indian parties: Can they choose a Foreign Seated Arbitration?

The Bombay High Court in the recent case of M/s Addhar Mercantile Private Limited vs Shree Jagdamba Agrico Exports Pvt Ltd4 in a section 11 Application under the Act had considered the important issue as to whether two Indian parties can chose a Foreign Seat of Arbitration?

The Hon’ble Bombay High Court relying upon the judgement passed by Hon’ble Supreme Court in the case of TDM Infrastructure Private Limited v UE Development India Private Limited5 has held that the intention of the legislature would be clear that Indian parties and Companies incorporated in India should not be permitted to derogate from Indian law which being part of the public policy of the country and hence cannot chose a foreign Seat of Arbitration and therefore relying upon the same went ahead to appoint an Arbitrator in the aforesaid case. However, there is also a judgment of Reliance Industries Limited & Anr v Union of India6 which talks about two indian parties having a foreign Seated Arbitration. However, the said judgement finally does not address the said issue. There seems to be some uncertainty with respect to the aforesaid issue as on date. A conclusive finding on the same from the Hon’ble Supreme Court of India would be welcome.


In our view, while drafting an arbitration clause in a particular contract, especially in case of International Commercial Arbitration; one should keep in mind the following points:-

  1. Arbitration clause shall clearly provide the composition of the arbitral tribunal, time for appointment and the language of the proceedings;
  2. Parties must decide on law governing the arbitration agreement;
  3. The procedure rules for conducting Arbitration like SIAC, LCIA etc should be expressly stated ;
  4. Parties must expressly agree upon the Seat of the Arbitration and not to use any other words like venue or place interchangeably and
  5. In case, the arbitral hearings are to be held at locations other than the Seat of Arbitration, then expressly mention in the contract that the Seat of Arbitration would be the governing law of arbitration and the same will remain impervious even if the hearings happen at various places/locations.

By Rajani Singhania & Partners, Partner Devesh Juvekar and Associate Dikshat Mehra.


1      (2012) 9 SCC 552

2      246 Law Commission Report

3      SLP (C) No. 10924 of 2013

4      Arbitration Application No. 197/2014 along with Arbitration Petition No. 910/2013.

5      2008 (14) SCC 271

6      (2014) 7 SCC 603

Read More]]> (Rajani Singhania Partners) Litigation, arbitration & dispute resolution Thu, 24 Sep 2015 11:27:43 +0530
PIL before Supreme Court to constitute search committee to appoint Lokpal

Supreme_Court_of_IndiaOn 24 September 2015, Supreme Court of India will hear a PIL petition seeking a direction to the Union of India to immediately constitute a search committee under the Lokpal & Lokayuktas Act, 2013 so that the appointment of the Lokpal can take place.

The petition filed by group Youth for Equality will be heard by a bench of Justices TS Thakur and V Gopala Gowda.

A PIL petition – Common Cause v. Union of India (Writ Petition (C) No. 454 of 2014) is pending before the Supreme Court which seeks quashing of the entire selection process for appointment of Chairperson and Members of the Lokpal initiated under the Rules framed under the Lokpal and Lokayuktas Act, 2014. Court had issued notice to the Union of India in the aforesaid PIL on 31 March 2014. The petition which was last heard on 28 August 2015 is expected to be listed for next hearing on 29 September 2015.

PIL Petition

Case No.Writ Petition (C) No. 673 of 2015 [PIL]
Case TitleYouth for Equality & Anr. v. Union of India
BenchJustices TS Thakur and V Gopala Gowda

PIL makes the following prayer:

Issue a writ in the nature of a mandamus to the Respondent to immediately constitute a Search Committee under the Lokpal & Lokayuktas Act, 2013 for the appointment of the Lokpal. etc.

What does the Act say

Section 4 of the Lokpal And Lokayuktas Act, 2013 [Act No. 1 of 2014] provides:

Section 4 – Appointment of Chairperson and Members on recommendations of Selection Committee

(1) The Chairperson and Members shall be appointed by the President after obtaining the recommendations of a Selection Committee consisting of:

(a) the Prime Minister–Chairperson;
(b) the Speaker of the House of the People–Member;
(c) the Leader of Opposition in the House of the People–Member;
(d) the Chief Justice of India or a Judge of the Supreme Court nominated by him–Member;
(e) one eminent jurist, as recommended by the Chairperson and Members referred to in clauses (a) to (d) above, to be nominated by the President–Member.

(2) No appointment of a Chairperson or a Member shall be invalid merely by reason of any vacancy in the Selection Committee.

(3) The Selection Committee shall for the purposes of selecting the Chairperson and Members of the Lokpal and for preparing a panel of persons to be considered for appointment as such, constitute a Search Committee consisting of at least seven persons of standing and having special knowledge and expertise in the matters relating to anti-corruption policy, public administration, vigilance, policy making, finance including insurance and banking, law and management or in any other matter which, in the opinion of the Selection Committee, may be useful in making the selection of the Chairperson and Members of the Lokpal:

Provided that not less than fifty per cent. of the members of the Search Committee shall be from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities and women:

Provided further that the Selection Committee may also consider any person other than the persons recommended by the Search Committee.

Mohit Singh

Mohit Singh

Mohit Singh is an advocate at the Supreme Court of India.

Mohit Singh

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Original author: Mohit Singh

Read More]]> (OneLawStreet) Litigation, arbitration & dispute resolution Wed, 23 Sep 2015 12:47:39 +0530
The Delhi High Court on Pregnancy and Sex Discrimination

Recently, my attention was drawn to a fascinating judgment of a division bench of the Delhi High Court, delivered last month. Inspector (Mahila) Ravina vs Union of India concerned a challenge to the CRPF’s denial of promotion to a female inspector. The facts are somewhat complex. For our purposes, it is sufficient to note that the Petitioner, an inspector in the CRPF, was unable to attend a Pre-Promotional Course, conducted between July and August 2011, because she was pregnant. Consequently, after her pregnancy was over, she attended the next Course, conducted in July and August 2012, and qualified, thus fulfilling the requirements for promotion to the next-higher post. However, when the CRPF released its promotion list in 2014, the Petitioner’s name was not included, and consequently, she lost her seniority vis-a-vis her batchmates and juniors. When the Petitioner filed a representation before the CRPF, she was informed that she had lost her seniority because of her “unwillingness to attend the promotional course [held in 2011].” The Petitioner challenged this decision before the High Court.

The question before the High Court, therefore, was whether “the Petitioner’s pregnancy would amount to unwillingness or signify her inability to attend a required promotional course and if she is entitled to a relaxation of rules to claim seniority at par with her batchmates.” The Court upheld the Petitioner’s claim on two grounds, both of which merit close attention.

First, the Court held penalising the Petitioner for her pregnancy violated Article 21 of the Constitution. In paragraph 9, Justice Ravindra Bhat observed:

“To conclude that pregnancy amounts to mere unwillingness – as the respondents did in this case- was an indefensible. The choice to bear a child is not only a deeply personal one for a family but is also a physically taxing time for the mother. This right to reproduction and child rearing is an essential facet of Article 21 of the Constitution; it is underscored by the commitment of the Constitution framers to ensure that circumstances conducive to the exercise of this choice are created and maintained by the State at all times. This commitment is signified by Article 42 (“Provision for just and humane conditions of work and maternity relief- The State shall provide conditions for securing just and humane conditions of work and for maternity relief”) and Article 45 (“Provision for early childhood care and education to children below the age of six years- The State shall endeavour to provide for early childhood care… ”)…”

There are two important points that need to be noted here. The first is that under the Court’s interpretation of Article 21, personal liberty is violated not only through coercive State action, but also State action that puts persons in a position where they must choose between availing a State benefit, or exercising a constitutional right. In other words, if “unwillingness” is to be construed as including absence due to pregnancy, then a woman is put in a position where she has to either forego her promotion, or forego her pregnancy. The State is therefore penalising women who exercise their constitutional rights by withholding the benefit of promotion from them. Readers will note the similarity between the argument here, and the doctrine of unconstitutional conditions discussed in the last post. The petitioner’s position here was even stronger, however, because denial of promotion is a more tangible and direct harm than withdrawal of a tax exemption.

The second is the Court’s use of the Directive Principles of State Policy – in particular, Articles 42 and 45. As I have attempted to argue before, a conceptually sound approach towards the DPSPs must respect the fact that the framers chose to make them unenforceable, while finding a textually and structurally relevant role for them in constitutional interpretation. There are two possible ways of doing this. One is that where a legal provision may be reasonably interpreted in two different ways, the interpretation that furthers the Directive Principles ought to be given precedence. The second is that the Directive Principles may be used to provide concrete content to the abstract concepts contained in Part III of the Constitution. In paragraph 9, the Delhi High Court does both. Referring to Articles 42 and 45, it holds that the guarantee under Article 21 is not merely a negative prohibition against coercive State action, but also casts a positive obligation upon the State “to ensure that circumstances conducive to the exercise of this [Article 21] choice are created and maintained by the State at all times.” In the instant case, this concretely translates into prohibiting the State from indirectly penalising a person if they choose to exercise their constitutionally guaranteed right to personal liberty. The Court also uses the DPSPs interpretively, by preferring an interpretation of the word “unwilling” that excludes pregnancy rather than one that includes it.

In its Article 21 analysis under paragraph 9, the Court stresses that pregnancy is a “deeply personal” choice. This is an ideal segue into the second part of the Court’s analysis. In paragraph 12, the Justice Bhat holds:

“It would be a travesty of justice if a female public employee were forced to choose between having a child and her career. This is exactly what the CRPF‟s position entails. Pregnancy is a departure from an employee‟s “normal” condition and to equate both sets of public employees- i.e. those who do not have to make such choice and those who do (like the petitioner) and apply the same standards mechanically is discriminatory. Unlike plain unwillingness – on the part of an officer to undertake the course, which can possibly entail loss of seniority – the choice exercised by a female employee to become a parent stands on an entirely different footing. If the latter is treated as expressing unwillingness, CRPF would clearly violate Article 21. As between a male official and female official, there is no distinction, in regard to promotional avenues; none was asserted. In fact, there is a common pre-promotional programme which both have to undergo; both belong to a common cadre. In these circumstances, the denial of seniority benefit to the petitioner amounts to an infraction of Article 16 (1) and (2) of the Constitution, which guarantee equality to all in matters of public employment, regardless of religion, caste, sex, descent, place of birth, residence etc. 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.

There are some crucial points here that need to be unpacked. The first is the express acknowledgment of pregnancy-based discrimination as a form of sex discrimination, which brings it within the non-discrimination guarantees under Articles 15 and 16 of the Constitution. As we discussed recently on this blog, the Supreme Court in Nargesh Mirza’s case (1981), dealt a serious blow to Indian sex discrimination jurisprudence by failing to consider pregnancy on the touchstones of Articles 15 and 16, and instead considering it under the “arbitrariness” prong of Article 14. Bizarrely, in Nargesh Mirza, the Supreme Court held that termination on a first pregnancy would be unconstitutional because arbitrary, but termination on a third pregnancy wouldn’t be (since it helped the nation’s family planning program and helped women become good mothers!). The discontents of the arbitrariness approach under Article 14 are legion, and I do not need to recount them here. The Court’s analysis of pregnancy discrimination under Article 16 represents a significant advance.

What is even more important, however, is how the Court does it. Justice Bhat observes that “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.” This is the language of indirect discrimination: facially “neutral” provisions have a discriminatory impact because they end up reproducing existing social inequalities and hierarchies. As we have seen in our discussion of the evolution of Indian sex discrimination jurisprudence, indirect discrimination still has only a tenuous hold upon the imaginations of our judges. A large number of cases have chosen to interpret the word “grounds” in Articles 15 and 16 as referring to the reasons, or motives, behind a law, and have consequently refused to find discrimination even when there is a clear case of differential impact. In my analysis of the text of Articles 15 and 16, I advanced an alternative reading of the word “grounds”, one that referred not to the motive of the law, but to the characteristics that were protected from adverse impact (sex, race, caste etc.). An effect or impact-based test was accepted by the Supreme Court in Anuj Garg. However, even in Anuj Garg, the law itself was directly discriminatory: it prohibited women from working as bartenders. The Delhi High Court, however, applies the framework of indirect discrimination to a facially neutral law, which discriminated not on the basis of sex, but on the basis of pregnancy. In this, it follows an analytical tradition, the finest exemplar of which is the Andhra Pradesh High Court’s judgment in 1983, which struck down the restitution of conjugal rights provision under the Hindu Marriage Act as discriminatory, because of its strongly adverse impact upon women.*

It is also fascinating to note that Justice Bhat places the word “normal” within quotation marks. In the first part of the paragraph, he notes that “pregnancy is a departure from an employee’s “normal” condition…” This reveals the crucial understanding that our intuitive ideas about the existing baseline, the “normal” from which we judge deviations, is a political and social construct. In other words, the “normal” is constructed form the perspective of a privileged subject position. Previously on this blog, I have cited the work of Joan Williams, who makes the point in the context of workplace discrimination:

“... society is structured so that everyone one, regardless of sex, is limited to two unacceptable choices – men’s traditional life patterns or economic marginality. Under the current structure of wage labor, people are limited to being ideal workers, which leaves them with inadequate time to devote to parenting, and being primary parents condemned to relative poverty (if they are single parents) or economic vulnerability (if they are currently married to an ideal worker). Wage labor does not have to be structured in this way… [the recent] massive shift in the gendered distribution of wage labor has produced intense pressures to challenge the assumption that the ideal worker has no child care responsibilities. But this pressure is being evaded by a cultural decision to resolve the conflicts between home and work where they have always been resolved: on the backs of women. In the nineteenth century, married women “chose” total economic dependence in order to fulfill family responsibilities.’ Today, many women with children continue to make choices that marginalize them economically in order to fulfill those same responsibilities, through part-time work, “sequencing,” the “mommy track” or “women’s work.” In each case, the career patterns that accommodate women’s child-care responsibilities often are ones that hurt women’s earning potential.”

The “normal” worker, therefore, being male, is not expected to become pregnant, and consequently, the baseline rules (penalisation for “unwillingness” to attend the promotional course) are constructed from his perspective. It is this edifice of exclusion that the Delhi High Court’s judgment interrogates, and then finds to be inconsistent with the Constitution.

By de-mythologising “normalcy”, the Delhi High Court has made another significant advance towards a jurisprudence of discrimination that is true to the Constitution’s commitment of ensuring social justice. In his dissenting opinion in Volks vs Robinson, Justice Albie Sachs of the South African Constitutional Court observed that “the purpose of constitutional law is to convert misfortune to be endured into injustice to be remedied.” The Constitution guarantees not only formal equality, but also promises that entrenched power structures which, over decades, even centuries of sedimentation, have attained the status of facts of nature, will no longer be treated as immutable in the very existence of things, but as human-caused instances of injustice, and will be dismantled. In a very profound sense, this judgment implements Justice Sachs’ vision of the transformative Constitution.

(*NB: The case before the Delhi High Court was an easier one than the one before the AP High Court, because while only women can get pregnant, both men and women can invoke the restitution of conjugal rights provision. The AP High Court rested its decision upon the unequal power relations within the family, which would mean that restitution of conjugal rights would adversely impact wives to an enormous degree, while having very little impact upon the lives of husbands. That judgment was reversed in one year by the Supreme Court. Perhaps it was too far ahead of its time. One hopes that thirty years later, as indirect discrimination continues to struggle for a foothold within Indian discrimination jurisprudence, the Delhi High Court has not also committed the error of being far ahead of its time.)

Original author: gautambhatia1988

Read More]]> (Gautam.Bhatia) Constitutional Law Mon, 21 Sep 2015 14:40:21 +0530